Hatcher v. State, 91-0243

• Decision Date: 08 January 1992
• Docket Number: No. 91-0243,91-0243
• Citation: 591 So.2d 1134
• Parties: Clarence HATCHER, Appellant, v. STATE of Florida, Appellee. 591 So.2d 1134, 17 Fla. L. Week. D212
• Court: Florida District Court of Appeals

Page 1134

591 So.2d 1134

Clarence HATCHER, Appellant, v. STATE of Florida, Appellee.

No. 91-0243.

591 So.2d 1134, 17 Fla. L. Week. D212

District Court of Appeal of Florida Fourth District.

Jan. 8, 1992.

Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Joseph A. Tringali, Asst. Atty. Gen., West Palm Beach, for appellee.

POLEN, Judge.

The appellant was charged with armed robbery, armed burglary of a conveyance, possession of burglary tools and resisting arrest without violence. The appellant contests the trial court's denial of his motion to withdraw and change a no-contest plea and he also appeals his sentence, claiming that it was error for the trial court to reserve jurisdiction in order to determine at the time appellant was to begin the probation portion of his sentence, the amount of restitution to be awarded to the victim.

We affirm the trial court's denial of the appellant's motion for a change of plea. The appellant entered into a written plea bargain and he consented to the terms of the agreement in open court. The appellant obtained the benefit of his bargain by not being adjudicated a habitual offender, and we therefore find no error in the trial court's sentencing of the appellant to a longer term than was initially expected. The agreement provided for this contingency because it was entered into before a pretrial sentencing investigation could be performed. In affirming, we rely on Thomas v. State, 566 So.2d 613 (Fla. 4th DCA 1990), jurisdiction accepted, 577 So.2d 1330 (Fla. Apr. 12, 1991).

The appellant argued that reversal was necessary due to the apparent inadequacy of the plea colloquy by the trial judge. We find no error here because the appellant has failed to show any prejudice, or manifest injustice, under the circumstances of his written plea agreement, and clear acquiescence to its terms. See Mickens v. State, 562 So.2d 856 (Fla. 1st DCA 1990); Gore v. State, 552 So.2d 1185 (Fla. 5th DCA 1989); Panno v. State, 517 So.2d 129 (Fla. 4th DCA 1987), rev. denied, 525 So.2d 880 (Fla.1988).

At sentencing, the trial court ruled that the appellant was liable to the victim for some amount of restitution, but the court ruled that the amount would be determined in the future, after the appellant had served the prison portion of his sentence. ¹ This court, and other appellate courts, have held that it is not error for the trial court to reserve jurisdiction for future determination of the amount of restitution, however, we find that it was error for the trial court to reserve jurisdiction in the present case.

This court has interpreted section 775.089, Florida Statutes (1989), as allowing the reservation of jurisdiction in those cases where the damages sustained by the victim cannot be reduced to a specific amount by the time of the defendant's sentencing hearing. Stanley v. State, 580 So.2d 349 (Fla. 4th DCA 1991); Weckerle v. State, 579 So.2d 742 (Fla. 4th DCA 1991) (victim's counseling not complete by the time of sentencing hearing). We also affirmed the trial court's reservation of jurisdiction for restitution purposes in In re B.M., ...