County Criminal Court: CRIMINAL LAW – Restitution. When State set a restitution hearing but failed to subpoena the defendant or witnesses and failed to seek a continuance when it discovered the error, it was not error for the trial court to delete restitution. Deletion of restitution affirmed. State v. Liuzza, No. CRC 05-38 APANO, (Fla. 6th Cir.App.Ct. Feb. 10, 2006).

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

 

STATE OF FLORIDA

 

            Appellant,

 

 

v.

Appeal No. CRC 05-38 APANO

UCN522005AP000038XXXXCR

 

FRANK LIUZZA

 

            Appellee.

______________________________/

 

 

Opinion filed __________________.

 

 

Appeal from a decision of the

Pinellas County Court

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.

            DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of February, 2006.

 

                                                                        ___________________________

                                                                                  J. Thomas McGrady

                                                                                        Circuit Judge

 

 

 

                                                                        ___________________________

                                                                                    R. Timothy Peters

                                                                                        Circuit Judge

 

 

 

                                                                        ____________________________

                                                                                    John A. Schaefer

                                                                                        Circuit Judge

cc:        State Attorney

 

            Public Defender

 

            Judge Freeman