IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
Appeal No. CRC 05-38 APANO
Opinion filed __________________.
Appeal from a decision of the
County Judge Thomas Freeman
Rania Fared, Esq.
Assistant State Attorney
Thomas Biniak, Esq.
Assistant Public Defender
ORDER AND OPINION
THIS MATTER is before the Court on the State’s appeal from an order entered by the Pinellas County Court deleting restitution. After reviewing the briefs and record, this Court affirms the decision of the trial court.
The defendant pleaded no contest to DUI charges. As part of his sentence he was ordered to pay restitution. The amount of the restitution was to be set in the future. The State set a hearing to determine the amount of the restitution; but it failed to notice the defendant or any of the witnesses. The State claims that the defendant was unavailable for the hearing because he absconded. It is unclear when the State learned of the defendant’s flight (although an affidavit dated December 23, 2004 and filed January 4, 2005 shows that the defendant appeared to have absconded); what is clear is that the State did not cancel the February 25, 2005 hearing. Compounding its error, when the time for the hearing came, the State never moved for a continuance or moved to cancel or suspend the hearing. The trial court asked the State to proceed with the restitution hearing. When the State could not proceed --- because it had failed to notice or subpoena any witnesses --- the trial court deleted the restitution because of the State’s “inability to proceed.” The State objected to the restitution being deleted.
The State spends considerable time in its brief arguing that the trial court had jurisdiction to determine the amount of restitution. That, however, is not quite the point. The State never addresses, either at trial or in its briefs, why it set a matter for hearing but failed to notice or subpoena the defendant or any witnesses, why it failed to cancel its own hearing, or why it failed to ask for a continuance. This does not appear to be a case where the trial court merely deleted the restitution as a sanction against the State.
Obviously, there was a great deal of confusion about the matter, but if the State had asked for a continuance, perhaps the result in this case (deletion of restitution) may have been different.
IT IS THEREFORE ORDERED that the order deleting restitution is affirmed.
AND ORDERED in Chambers at
J. Thomas McGrady
R. Timothy Peters
John A. Schaefer
cc: State Attorney