Dominique v. State, 90-2545
| Decision Date | 18 December 1991 |
| Docket Number | No. 90-2545,90-2545 |
| Citation | 590 So.2d 1059 |
| Parties | Marc DOMINIQUE, Appellant, v. STATE of Florida, Appellee. 590 So.2d 1059, 17 Fla. L. Week. D6 |
| Court | Florida District Court of Appeals |
Robert L. Bogen, Alan Jay Braverman, P.A., Boynton Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Melynda L. Melear, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant was convicted of two counts of aggravated battery and one count of attempted battery on a law enforcement officer and sentenced to five years' imprisonment followed by five years' consecutive probation on the aggravated battery convictions and time served on the attempted battery count. Furthermore, restitution was imposed in the amount of $10,000 as to one victim of aggravated battery and $8,600 as to the other. On this appeal from both the convictions and sentences appellant poses seven points for reversal, none of which demonstrates reversible error, in our judgment, except the contention that the trial court erred in imposing restitution without notice and a fair opportunity to be heard on the question.
Section 775.089, Florida Statutes (1987), in pertinent part, provides:
(6) The court, in determining whether to order restitution and the amount of such restitution, shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the present and potential future financial needs and earning ability of the defendant and his dependents, and such other factors which it deems appropriate.
(7) Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense is on the state attorney. The burden of demonstrating the present financial resources and the absence of potential future financial resources of the defendant and his dependents is on the defendant. The burden of demonstrating such other matters as the court deems appropriate is upon the party designated by the court as justice requires.
As this court held in Mounds v. State, 526 So.2d 1084 (Fla. 4th DCA 1988), "the imposition of restitution without notice or a hearing was error." In the present case this rule was not honored and thus we find it necessary to remand for purposes of allowing appellant his opportunity to be heard on the matter.
We pause to comment on appellant's point directed to the sufficiency of the evidence to convict appellant of attempted battery upon a law enforcement officer for which he was sentenced to time served. The evidence relevant to the attempted battery count is taken from appellee's brief and it is substantially the same as that contained in appellant's brief. Officer Scott Israel, an eleven-year member of the Fort Lauderdale police force, testified that, while on patrol at the Fort Lauderdale beach area, he noticed a group of males on the street; he thought "something was not right." The entire group was listening to appellant who was engaged in "nervous conversation." Suspicious, Officer Israel decided to stop and investigate the activity of the crowd. When he got out of his marked police vehicle in uniform, everyone except appellant came over to him.
Israel told appellant that he would like to talk to him but appellant walked away. Appellant started running and Israel followed. A foot-chase took place for blocks, until Israel finally caught up with appellant on the beach. Israel said that he grabbed appellant's shoulder and that appellant turned around and swung his fist at him. He testified that appellant intentionally hit him, against his will, in the chest with a closed fist "as hard as he could" so that Israel "could feel it." A struggle occurred until back-up officers were able to subdue appella...
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Perry v. State, 4D01-2049.
...that an illegal stop does not automatically preclude a conviction for battery on a law enforcement officer); Dominique v. State, 590 So.2d 1059 (Fla. 4th DCA 1991)(holding that an illegal investigative stop was not a defense to battery of a known police officer engaged in lawful performance......
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Hamrick v. State, 94-0859
...State, 510 So.2d 1142, 1144 (Fla. 2d DCA 1987). The imposition of restitution without notice or a hearing is error. Dominique v. State, 590 So.2d 1059 (Fla. 4th DCA 1991); Mounds v. State, 526 So.2d 1084 (Fla. 4th DCA 1988). Although the trial court did not err in ordering appellant to pay ......
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Tillman v. State
...determine whether a defendant had a reasonable expectation of privacy in the premises searched). Second, as noted in Dominique v. State, 590 So.2d 1059 (Fla. 4th DCA 1991), if the use of force to resist an arrest is unlawful despite the technical illegality of the it logically follows that ......
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Taylor v. State, 98-1243.
...have extended the application of section 776.051(1) to unlawful detentions, even though it refers to arrests. See Dominique v. State, 590 So.2d 1059 (Fla. 4th DCA 1991) (holding that an illegal investigative stop did not justify the commission of a battery on the officer); Jones v. State, 5......