COUNTY CRIMINAL COURT: CRIMINAL LAW – Restitution – Abuse of discretion for trial court to delete restitution as a sanction for State failing to determine amount of restitution within this particular time. Order deleting restitution reversed. State v. Vizaro, No. CRC 05-2 APANO, (Fla. 6th Cir.App.Ct. March 9, 2006).

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

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 05-2 APANO

UCN522005AP000002XXXXCR

JEREMY VIZARO

 

            Appellee.

________________________________/

 

Opinion filed _________________.

 

Appeal from a decision of the

Pinellas County Court

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.

            It 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. See State v. Sanderson, 625 So.2d 471 (Fla. 1993); Butler v. State, 901 So.2d 922 (Fla. 2d DCA 2005).  When the amount of restitution is to be determined is “a procedural matter falling within the discretion of the court.” McCaskill v. State, 520 So.2d 1st DCA 664). Exactly how quickly restitution must be determined does not appear to have been directly answered. The parties did not cite to any case, and this Court’s own research was able to find only one brief mention of the topic in a concurring opinion. In Moore v.State, 868 So.2d 683 (Fla. 5th DCA 2004), it was noted in the concurring opinion that: “[t]he Sanderson court said that it assumed that the trial court would determine the amount ‘at the earliest possible date.’ “ Id. The concurring opinion then went on to question the timeliness of the determination of the amount of restitution when the imposition of restitution was in 1998 and the amount of the restitution was not determined until 2003. Clearly, the trial court does have an obligation to ensure that the State sets the amount of restitution within a reasonable amount of time from when the restitution is imposed. And the trial court, within its discretion, may fashion remedies to meet that obligation. As with all discretion, however, it is not absolute.

            Lacking 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 (Fla. 3d DCA 2000); State v. Pope, 675 So.2d 165 (Fla. 3d DCA 1996); State v. Cohen, 662 So.2d 430 (Fla. 3d DCA 1995); and State v. T.H., 592 So.2d 759 (Fla. 5th DCA 1992). As noted in State v. Carpenter, 899 So.2d 1176 (Fla. 3d DCA 2005), a trial court’s dismissal in effect, “results in a windfall to the defendant.” Id. at 1182. Similarly, a trial court’s deletion of restitution is an extreme sanction.

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 APANO (Fla. 6th Cir. App.Ct. Feb. 10, 2006) that would appear, at first blush, to be inconsistent with this opinion. The opinion in Liuzza, however, can be distinguished as follows. In that case this Court upheld the trial court’s deletion of restitution because the State set a restitution hearing but failed to ensure that the defendant or the witnesses appeared and failed to ask for a continuance of the restitution hearing once it discovered its error. Those circumstances are completely different from the case at bar where the trial court simply deleted restitution as a sanction against the State for failing to determine the amount of restitution within a set time period.

            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.

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

                                                                                    __________________________

                                                                                            J. Thomas  McGrady

                                                                                           Circuit Judge

 

 

                                                                                    ___________________________

                                                                                                R. Timothy Peters

                                                                                                Circuit Judge

 

                                   

                                                                                    ___________________________

                                                                                                John A. Schaefer

                                                                                                Circuit Judge

cc:        State Attorney

 

            Michael Bowdish, Esq.

 

            Judge Freeman