Connor v. State

• Decision Date: 08 December 2006
• Docket Number: No. 5D05-3994.,5D05-3994.
• Citation: 944 So.2d 488
• Parties: Jacqueline CONNOR, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

944 So.2d 488

Jacqueline CONNOR, Appellant, v. STATE of Florida, Appellee.

No. 5D05-3994.

District Court of Appeal of Florida, Fifth District.

December 8, 2006.

Appeal from the Circuit Court for Osceola County, Frank N. Kaney, Senior Judge.

James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

AFFIRMED.

GRIFFIN and EVANDER, JJ., concur.

SAWAYA, J., concurs specially with opinion.

SAWAYA, J., concurring.

I present this concurring opinion to explain why I believe the crime victim in this case is entitled to restitution and to explain why the procedure initially employed by the trial judge to determine the amount of restitution should not be condoned.

Pursuant to a plea agreement, Jacqueline Connor entered a plea of guilty to the charge of robbery in exchange for a sentence of 18 months' probation and payment of restitution to the victim. The plea was entered and Connor was sentenced on August 31, 2005. When the sentence was imposed, the trial judge ordered restitution as a condition of Connor's probation and orally announced that "we'll reserve on the restitution for 42 days. If there's no number established within six weeks, the number will be zero." The record reflects that a written order to that effect has never been entered.

On September 21, 2005, well before the 42-day period expired, a warrant was issued alleging that Connor had violated her probation. A hearing was held on November 1, 2005, at which Connor admitted the violations. Connor's probation was revoked, she was sentenced to 14.7 months in prison, and in the same hearing, the trial court proceeded to determine the amount of restitution Connor owed the victim. The only objection Connor made was that "the court lacks jurisdiction at this time." The trial judge disagreed and entered a restitution order in the amount of $2,400, to be paid through the collections court.

Connor appeals the restitution order, claiming that the trial court did not have jurisdiction to enter the order at that time.¹ Specifically, Connor asserts that the self-imposed time period of 42 days limited the trial court's jurisdiction to that period of time and since that time limit expired without a hearing, the trial court lacked jurisdiction to determine the amount and order restitution as part of her sentence for violation of probation. She further asserts that the amount of restitution was automatically set at zero upon expiration of the 42-day time period despite the fact that a hearing to establish the amount was never set and no order was rendered by the trial court finding that the time limit had expired. Accordingly, Connor contends that it was error for the trial judge to increase this automatically established amount of restitution when Connor was subsequently sentenced for violation of probation. I disagree.

"[V]iolation of probation opens a new chapter in which the court ought to be able to mete out any punishment within the limits prescribed for the crime." Bilyou v. State, 404 So.2d 744, 745 (Fla.1981). The Legislature has decreed that when a defendant is sentenced for violation of probation and the trial court revokes probation, as it did here, the court may "impose any sentence which it might have originally imposed before placing the probationer on probation." § 948.06(2)(b), Fla. Stat. (2005); see also § 948.06(2)(e), Fla. Stat. (2005); Woods v. State, 879 So.2d 651 (Fla. 5th DCA 2004). For example, when sentencing a defendant for violation of probation the trial court may: impose a fine that could have been, but was not, imposed at the time the defendant was sentenced on the substantive charge, see Smith v. State, 448 So.2d 20 (Fla. 1st DCA 1984); order payment of fees that could have been, but were not, ordered at the time defendant was sentenced on the substantive charge, see Woods; assess a drug multiplier to the scoresheet that was not applied at the time of the original sentence, see Carrigan v. State, 873 So.2d 605 (Fla. 5th DCA 2004);² assess victim injury points on the score-sheet that were not assessed at the time of the original sentencing, see Aponte v. State, 810 So.2d 1008 (Fla. 4th DCA 2002); revoke the defendant's probation and sentence him or her to a prison sentence that exceeds the maximum sentence agreed upon in a plea agreement, see State v. Segarra, 388 So.2d 1017 (Fla.1980);³ and revoke the defendant's probation and sentence him or her to the maximum period in prison, see Bruggeman v. State, 681 So.2d 822 (Fla. 2d DCA 1996).

It logically follows that when restitution, which is a mandatory part of sentencing that renders a sentence incomplete unless it is ordered, is not imposed as part of the sentence for the underlying offense, it may be ordered as part of the sentence imposed for violation of probation. Clearly, the trial court had jurisdiction to order restitution as part of the violation of probation sentence.

As for Connor's assertion that the oral order constitutes a final determination that the amount of restitution is zero and that the trial court did not have jurisdiction to change it as part of the violation of probation sentence, I do not think that order constitutes a final order. Therefore, the trial court would have had jurisdiction to enter an order determining the amount after the 42-day self-imposed time limit and after the 60-day limit provided by Florida Rule of Criminal Procedure 3.800. The courts have consistently held that restitution is a mandatory part of sentencing and must be ordered at the time the sentence is imposed or within 60 days thereafter. See State v. Sanderson, 625 So.2d 471, 473 (Fla.1993). In the event restitution is ordered within 60 days of sentencing, as was done in the instant case, the trial court has jurisdiction to determine the amount of restitution beyond that time period. Sanderson; see also L.O. v. State, 718 So.2d 155, 157 (Fla.1998) ("[W]e reaffirm our decision in Sanderson and hold that `if an order of restitution has been entered in a timely manner, a court can determine the amount of restitution beyond the sixty-day period.'") (quoting Sanderson, 625 So.2d at 473); Wallace, 833 So.2d at 207-08 (holding that once restitution is timely ordered, "a trial court generally has jurisdiction to set the amount of previously ordered restitution up until the termination of the defendant's probation" or until a final order is entered establishing the amount) (citing Gladfelter v. State, 618 So.2d 1364 (Fla.1993)); R.D. v. State, 743 So.2d 1124, 1125 (Fla. 1st DCA 1999) ("Under the circumstances, because the order establishing the restitution obligation was entered in a timely manner, the trial court had the jurisdiction to determine the amount of restitution beyond the sixty-day period in rule 3.800(c)."); Law v. State, 705 So.2d 632 (Fla. 5th DCA 1998). Hence, as the court in Sanderson explained, the determination of the amount of restitution is not controlled by the time limitations of rule 3.800. Sanderson, 625 So.2d at 472-73; see also Gladfelter, 618 So.2d at 1365 ("Because restitution was made an original condition of the probation, the court could properly determine the amount of restitution at a later date. We do not construe rule 3.800 as requiring this to be done within sixty days."). It is a general rule that a trial court has jurisdiction to modify, vacate, or set aside an order or ruling before it becomes final, provided there are no rules or statutes that restrict its authority to do so.⁴

Here, a final order was never entered by the trial court finding that the deadline had expired and that the amount of restitution was zero.⁵ Without such an order, it would be left to speculation and conjecture whether anything was presented during the 42-day period to establish an amount. Moreover, the courts generally do not consider as final an order, such as the oral ruling in the instant case, which purports to become final at a later date without further judicial action. See Hancock v. Piper, 186 So.2d 489 (Fla.1966); ATM Ltd. v. Caporicci Footwear Ltd., Corp., 867 So.2d 413 (Fla. 3d DCA 2003); United Water Fla., Inc. v. Fla. Pub. Serv. Comm'n, 728 So.2d 1250, 1251 (Fla. 1st DCA 1999); Dep't of Transp. v. Post, Buckley, Schuh & Jernigan, 557 So.2d 145 (Fla. 1st DCA 1990); Epley v. Washington County, 358 So.2d 592, 594 (Fla. 1st DCA 1978). In these instances, the order is considered interlocutory, the trial court is not divested of jurisdiction, and the litigation continues until a final order is entered. Hancock; Ponton v. Gross, 576 So.2d 910 (Fla. 1st DCA 1991); Augustin v. Blount, Inc., 573 So.2d 104 (Fla. 1st DCA 1991). As we stated in Andrews v. McGowan, 739 So.2d 132, 135 (Fla. 5th DCA 1999), "Interlocutory rulings are subject to reconsideration by the trial court prior to entry of a final order in the cause." See also Dawkins, Inc. v. Huff, 836 So.2d 1062, 1065 (Fla. 5th DCA 2003) (observing that "a court always has jurisdiction during the progress of a case to set aside or modify an interlocutory order before final judgment" and that "such orders remain within the inherent power of the court to control the progress of the case prior to final judgment").

Moreover, the oral ruling that "[i]f there's no number established within six weeks, the number will be zero" was never reduced to writing. If this oral ruling were to be deemed a final order, the State would be deprived of its right to appeal⁶ because an order not reduced to writing is not a final order subject to review. See Hobson v. State, 908 So.2d 1162, 1163 n. 1 (Fla. 1st DCA 2005); State v. Johnson, 892 So.2d 563 (Fla. 1st DCA 2005); Walker v. State, 647 So.2d 262 (Fla. 1st DCA 1994) (concluding the district court lacks jurisdiction to review oral order that was made from the bench where order was...