NOT FINAL UNTIL TIME EXPIRES FOR REHEARING
AND, IF FILED, DETERMINED
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
Appeal No. CRC 05-2 APANO
Opinion filed _________________.
Appeal from a decision of the
County Judge Thomas Freeman
C. Marie King, Esq.
Assistant State Attorney
Michael Bowdish, Esq.
Attorney for appellee
ORDER AND OPINION
THIS MATTER is before the Court on the State’s appeal from a decision of the Pinellas County Court deleting restitution. After reviewing the briefs and record, this Court reverses the decision of the trial court.
On September 2, 2004 the defendant pleaded no contest to charges of improperly exhibiting a firearm and criminal mischief. He was sentenced that day and as part of his sentence he was ordered to pay restitution. The amount of the restitution was to be determined within sixty days. In early November the State forwarded a stipulation to the defendant’s attorney. There was no response. In early December, however, the defense filed a motion to delete restitution. At that hearing the State said that it was having difficulty getting the restitution estimates from the victim. The defendant argued that because the State had failed to have the amount of restitution determined, then restitution should be deleted from the defendant’s sentence. The trial court agreed, and granted the defendant’s motion to delete restitution. The State is appealing that order.
is clear that restitution must be imposed within 60 days of sentencing, but the
amount of restitution may be determined later, even if it is later than the trial
court’s self-imposed time limit.
any existing case law directly on point, this Court will look to those cases
that deal with a trial court’s exercise of discretion in other contexts --- the
dismissal of cases as a sanction for the State’s discovery abuse or for the
failure of the State to secure witnesses. In both of these situations appellate
decision after appellate decision has stressed that dismissal is an extreme
sanction to be used only as a last resort where other alternatives are not
viable. “Dismissal of criminal charges is only an action of last resort where
no viable alternative exists.” State v. Ottrock, 573 So.2d 169 (Fla. 4th
DCA 1991). Case law also disapproves of the trial court dismissing criminal
charges simply as a sanction against the State because its witnesses fail to
appear. See e.g., State v. L.E., 754 So.2d 60 (
Turning to the case at bar, the record shows that the trial court did not consider any other alternative other than deleting the restitution. The trial court could have inquired as to whether or not the defendant agreed to the stipulation; or it could have ordered that an evidentiary hearing be quickly set to determine the amount of restitution. In summarily deleting restitution the trial court abused its discretion. The court should have considered other alternatives to the sanction of deleting restitution and given the State a reasonable opportunity to prove the amount of restitution.
This Court must
note a recently rendered decision in State v. Liuzza, No. CRC 05-38
IT IS THEREFORE ORDERED that the order deleting the restitution is reversed, and this matter is remanded to the trial court for a determination of the amount of restitution.
AND ORDERED in Chambers at
J. Thomas McGrady
R. Timothy Peters
John A. Schaefer
cc: State Attorney
Michael Bowdish, Esq.