Gilmore v. State, 85-718
| Decision Date | 20 November 1985 |
| Docket Number | No. 85-718,85-718 |
| Citation | 10 Fla. L. Weekly 2620,479 So.2d 791 |
| Parties | 10 Fla. L. Weekly 2620 Barry Paul GILMORE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Candance M. Sunderland, Asst. Atty. Gen., Tampa, for appellee.
Appellant was convicted of burglary of a dwelling and second degree grand theft. The court determined him to be a habitual felony offender and gave him concurrent twenty-five year sentences. However, second degree grand theft is a third degree felony authorizing a five year maximum sentence which could only be enhanced to ten years. § 775.084(4)(a)3, Fla.Stat. (1983).
Appellant was also ordered to make $1,800 restitution to the victim of his crimes. 1 For reversal of this order, appellant cites Harris v. State, 452 So.2d 1041 (Fla. 2d DCA 1984), in which this court held that before restitution may be imposed as part of a sentence pursuant to section 775.089, Florida Statutes (1983), the defendant must be given notice and an opportunity to be heard. We note, however, that Harris was decided under the 1983 statute in which the determination to order restitution rested within the discretion of the court. Appellant was sentenced under the 1984 amendment to section 775.089 which requires 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. Since the appellant made no objection when the court announced the requirement of restitution, he was not deprived of an opportunity to be heard.
Appellant's substantive argument concerning the denial of his motion to suppress is without merit.
We affirm appellant's convictions and his sentence for burglary. We reduce his grand theft sentence to ten years. Pursuant to Jenkins v. State, 444 So.2d 947 (Fla.1984), we also vacate the order requiring appellant to pay $10 to the Crimes Compensation Trust Fund and $2 to the Law Enforcement Training Trust Fund.
1 Because of the appellant's indigency, the court provided that the restitution would only have to be paid out of appellant's prison wages...
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Gaskin v. State, BP-207
...is not entitled to advance notice before the court imposes restitution under Section 775.089, Florida Statutes. Gilmore v. State, 479 So.2d 791 (Fla. 2d DCA 1985). However, in the case below, the trial court failed to follow the requirements of Section 775.089(6), Florida Statutes, to consi......
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Gilford v. State, 85-753
...775.089, Florida Statutes (Supp.1984) provides that advance notice is no longer required before imposing restitution. Gilmore v. State, 479 So.2d 791 (Fla. 2d DCA 1985). However, the controlling statute is that which is in effect at the time of the commission of the crime, rather than at th......
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Gibbons v. State, 85-493
...erred in imposing restitution without advance notice to allow the appellant an opportunity to be heard. This court in Gilmore v. State, 479 So.2d 791 (Fla. 2d 1985), has recently held that advance notice is no longer required before imposing restitution because section 775.089, Florida Stat......
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Dailey v. State, 89-02517
...restitution or reasons for failing to impose it is incomplete and may be modified by the trial court). See also Gilmore v. State, 479 So.2d 791, 792 (Fla. 2d DCA 1985). Dailey has begun to serve his sentence. Therefore, while the court can impose restitution to make his sentence legally com......