Fisher v. State, 5D01-3421.
| Decision Date | 14 February 2003 |
| Docket Number | No. 5D01-3421.,5D01-3421. |
| Citation | 840 So.2d 325 |
| Parties | Felicia FISHER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Barbara Twine-Thomas of Stewart, Joyner & Jordan-Holmes, P.A., Tampa, for Appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
Fisher appeals from an order holding her in contempt for failure to make restitution payments and from an order denying her motion to vacate the restitution order which was the basis for the contempt order. We reverse both orders.
These orders were rendered in connection with a juvenile delinquency proceeding involving Fisher's daughter, T.F. T.F., age thirteen, was charged with burglary and arson, after she and two other girls broke into a vacant house and set it on fire. The house burned to the ground. T.F. and Fisher both signed an affidavit of indigency and a public defender was appointed for T.F.
On August 19, 1999, T.F. pled no contest, was adjudicated delinquent and placed in a Level 4 program. Fisher, as well as the public defender, were present. The amended order rendered after the delinquency hearing and sentencing states: "Restitution, parents responsible also, reserved right to restitution hearing to determine amount." This was the first notice or statement by the judge or the state that Fisher was to be held personally liable for restitution.
The restitution hearing was held on January 28, 2000. An employee of the Lake County Property Appraiser's Office testified the house was owned by Jeffrey and Belinda Richardson and in 1999, it had a total assessed value of $30,461 (land valued at $19,800 and the house at $10,661). Other witnesses testified it would cost $5,200 to demolish the house and $95,160 to replace it. Belinda Richardson testified her father lived in the house until he died in December 1996, and after that time the house was vacant. However, she testified the house contained antique furniture and other contents she valued at $25,000.
Fisher testified she was familiar with the house. It had been abandoned, some of the downstairs windows lacked window panes, and rats, racoons or snakes could be in the house. Additional testimony was apparently taken from Fisher1 that she is a single parent and earns $45,000 a year. Fisher told the judge that with her income of $17.00 per hour, she could not afford to pay restitution for the house.
On February 1, 2000, the judge entered an order requiring Fisher to pay restitution in the amount of $25,861 ($5,200 for demolition, $10,000 for the contents of the house, and $10,661 for the house structure). He directed Fisher to pay $250 per month.
Fisher questioned the propriety of the restitution order at a February 22, 2001 hearing, and the court minutes reflect "the mother is ordered to pay." On February 26, 2001, Fisher wrote a letter to the judge disputing the amounts used to calculate restitution. She had information the property was in a dilapidated state and had been the subject of notices of code violations. She also disputed anyone would have left valuable antiques in a house in such condition. The judge treated the letter as a motion for rehearing and summarily denied it.
On May 15, 2001, a different judge issued an order directing Fisher to show cause why she should not be held in contempt for failure to pay restitution. A contempt hearing was held. Fisher apparently had paid $1,485 but then stopped making payments. She testified she is a registered nurse, earning $21 an hour. She rents her home and has legal custody of two grandchildren, ages three and four. She had $2,000 in a savings account. The judge held her in contempt and sentenced her to thirty days in jail with a purge provision of $500. She spent a month in jail. In August 2001, Fisher retained private counsel.
The state again petitioned for a rule to show cause why Fisher should not be held in contempt for failure to pay restitution.
A hearing ensued before the second judge on November 1, 2001. At that hearing, Fisher's defense counsel filed a motion to vacate the restitution order, arguing it was void ab initio because Fisher had not been properly noticed that she could be held personally liable for restitution in her daughter's case, and the court failed to make a finding (or take any testimony which would support such a finding) that Fisher had failed to make diligent and good faith efforts to prevent T.F. from engaging in delinquent acts, pursuant to section 985.231(9), Florida Statutes. The judge denied relief on the ground that "parental diligence" was a defense Fisher had to establish and that this was not an element the state had to prove in order for the court to impose an order of restitution on a parent for the acts of a delinquent child.
The court then took evidence concerning Fisher's ability to pay the restitution amount. It found she had the ability to pay $250 per month as set forth in the prior order. On December 21, 2001, the court rendered an order holding Fisher in contempt and sentenced her to six months in jail, with a purge provision of $250. In another order rendered on the same date, it denied Fisher's motion to vacate the original restitution order. She appeals from both orders in this proceeding.
We conclude that the court improperly imposed restitution on Fisher without making the findings required by section 985.231. This statute provides:
Restitution was imposed on Fisher pursuant to subsection (9) quoted above, since it was not being ordered in connection with a probation program or a community based sanction but rather as part of the sanctions initially imposed on T.F. The language in subsection (6) is different than in subsection (9), lending itself somewhat to the judge's interpretation, that it is a defense a parent must establish to escape from sanctions, although we do not address that issue in this case.
Subsection (9) requires the court to find that the parent or guardian did not make a diligent and good faith effort to prevent the child from engaging in delinquent acts before ordering a parent or guardian to perform community services. As we held in B.M. v. State, 744 So.2d 505 (Fla. 5th DCA 1999), although the next sentence in subsection (9) permitting the court to impose restitution on a parent or guardian does not expressly require a similar finding, such a required finding is implied from the structure of the statute. Accord J.C.R. v. State, 785 So.2d 550 (Fla. 4th DCA 2001). Holding a parent vicariously liable for a child's harmful or delinquent acts is a departure from the common law, and statutes imposing such liability should be construed narrowly.2
In this case, no finding was made that Fisher failed to make a diligent and good faith effort to prevent T.F. from engaging in the delinquent act involved in this case or any other. Nor was any evidence presented concerning Fisher's parenting efforts. In B.M., we noted there were procedural problems with how and when such a hearing should be held pursuant to section 985.231, and whether a parent or guardian would be entitled to state representation at such a hearing. We simply remanded to the trial court to conduct a hearing.
Since that time, the juvenile rules have been amended to remedy our procedural due process concerns when the state seeks restitution or other sanctions against parents or guardians of delinquent children. See Fla. R. Juv. P. 8.040, 8.030, 8.031.3 Effective January 1, 2001, the rules provide that the state must file and serve a petition on the parents or guardians in cases where restitution or other sanctions are sought against them. The petition must set forth facts to establish the appropriateness of imposing sanctions on them, and service must occur 72 hours before the hearing concerning imposition of the sanctions.
The state argues...
To continue reading
Request your trial
-
G.P. v. C.P. (In re D.P.P.)
...Rule of Civil Procedure 1.540(b)(4) “at any time because the judgment creates no binding obligation on the parties.” Fisher v. State, 840 So.2d 325, 331 (Fla. 5th DCA 2003) (emphasis omitted). In general, a void judgment is entered without subject matter or personal jurisdiction. Zitani v. ......
-
G. P. v. C. P. (In re D.P.P.)
...Rule of Civil Procedure 1.540(b)(4) "at any time because the judgment creates no binding obligation on the parties." Fisher v. State, 840 So. 2d 325, 331 (Fla. 5th DCA 2003) (emphasis omitted). In general, a void judgment is entered without subject matter or personal jurisdiction. Zitani v.......
-
J.R. v. State
...counselors, and school officials, and attending required court appearances," under threat of sanction. See generally Fisher v. State, 840 So.2d 325, 330 (Fla. 5th DCA 2003) (observing that "a court does not have contempt powers to enforce violations of its orders if they are rendered withou......
-
Lewis v. Nical of Palm Beach, Inc.
...is, however, another matter. Due process requires that a person be put on notice that he or she faces sanctions. See Fisher v. State, 840 So.2d 325 (Fla. 5th DCA 2003) (reversing order holding mother in contempt for failing to pay restitution where mother was never put on notice that she, p......