Denson v. State, 85-1198

Decision Date22 August 1986
Docket NumberNo. 85-1198,85-1198
Citation11 Fla. L. Weekly 1859,493 So.2d 60
Parties11 Fla. L. Weekly 1859 James DENSON, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

James Marion Moorman, Public Defender, and Joseph Eugene Perrin, Asst. Public Defender, Bartow, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and James H. Dysart, Asst. Atty. Gen., Tampa, for appellee.

FRANK, Judge.

The appellant, who was convicted of lewd and lascivious assault and of sexual battery on a child 11 years or younger, raises three issues on appeal, two of which involve sentencing and are meritorious.

The trial court stated that it was sentencing the appellant beyond the guidelines range because the appellant had lied at sentencing and was a danger to children. Lying at sentencing is equivalent to perjury--an offense for which no conviction had been obtained. Furthermore, the conclusion that the appellant was a danger to children was grounded upon a revelation in the presentence investigation report that he had committed similar offenses in the past, for which he had not been convicted. Such reasons are clearly excluded as grounds for departure by Rule 3.701(d)(11) of the Florida Rules of Criminal Procedure.

The trial court also ordered the appellant to pay an unspecified amount of restitution to the victim's natural father. Although the appellant urges that restitution was imposed without affording him notice and an opportunity to be heard the court committed no error. Section 775.089 was amended in 1984 to require the court to order restitution unless it states reasons not to do so. "Hence, defendants such as appellant are now on notice that restitution will be considered as a part of every sentencing, and there is no longer any need for advance notice to be given concerning the possibility of restitution." Gilmore v. State, 479 So.2d 791 (Fla.2d DCA 1985).

The court did err, however, when it imposed the following condition of probation: "You will pay restitution to Randy Hodge for all expenses incurred in order to secure psychological treatment for victim.... These payments will be made as directed by your Probation Officer." By ordering the appellant to pay reparation as directed by a probation officer, the court improperly delegated its judicial responsibility and thus committed reversible error. McDonald v. State, 478 So.2d 113 (Fla.2d DCA 1985); J.J.S. v. State, 465 So.2d 621 (Fla.2d DCA 1985).

Accordingly, we reverse and remand this case...

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13 cases
  • Patten v. State, 86-2928
    • United States
    • Court of Appeal of Florida (US)
    • September 7, 1988
    ...arrested on a subsequent grand theft charge in Hillsborough County, is also improper. See Fla.R.Crim.P. 3.701(d)(11); Denson v. State, 493 So.2d 60 (Fla. 2d DCA 1986). The dissent, however, focuses on the second reason offered by the trial judge for departure--subsequent grand theft convict......
  • Bostic v. State, 85-2971
    • United States
    • Court of Appeal of Florida (US)
    • April 1, 1987
    ...of the amount of restitution to appellant's probation officer. Mansell v. State, 498 So.2d 604 (Fla. 2d DCA 1986); Denson v. State, 493 So.2d 60 (Fla. 2d DCA 1986); McDonald v. State, 478 So.2d 113 (Fla. 2d DCA 1985). Accordingly, we reverse the order of restitution and remand for a proper ......
  • Masslieno v. State, BM-16
    • United States
    • Court of Appeal of Florida (US)
    • December 8, 1986
    ...delegation of judicial responsibility to a nonjudicial officer. Hamm v. State, 403 So.2d 1155, 1156 (Fla. 1st DCA 1981); Denson v. State, 493 So.2d 60 (Fla. 2d DCA 1986); Gilford v. State, 487 So.2d 53 (Fla. 2d DCA 1986); Cisneros v. State, 422 So.2d 1087 (Fla. 3rd DCA Accordingly, on the b......
  • Sampson v. State, 87-01747
    • United States
    • Court of Appeal of Florida (US)
    • March 31, 1989
    ...the other hand, a departure would have been impermissible if based upon robberies for which no conviction was obtained. Denson v. State, 493 So.2d 60 (Fla. 2d DCA 1986). After remand for clarification of this one issue, a second scoresheet was submitted which recommended the same sentence r......
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