Hummell v. State, No. 96-2799

CourtCourt of Appeal of Florida (US)
Writing for the CourtW. SHARP
Citation693 So.2d 113
Parties22 Fla. L. Weekly D1182 David HUMMELL, Appellant, v. STATE of Florida, Appellee.
Decision Date09 May 1997
Docket NumberNo. 96-2799

Page 113

693 So.2d 113
22 Fla. L. Weekly D1182
David HUMMELL, Appellant,
v.
STATE of Florida, Appellee.
No. 96-2799.
District Court of Appeal of Florida,
Fifth District.
May 9, 1997.

James B. Gibson, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.

W. SHARP, Judge.

Hummell appeals from his sentence and restitution orders after he was resentenced for violation of community control. In September of 1996, Hummell's community control was revoked and he was sentenced to 36 months in prison, consecutive to any other sentence. He filed a notice of appeal on September 19, 1996, and on October 2nd, the trial court entered three orders of restitution. We affirm Hummell's convictions and sentence for aggravated assault with a deadly weapon 1 and criminal mischief, 2 but we strike the restitution orders, and the wording of the sentence that his sentence shall be served consecutively to any other.

When Hummell was originally sentenced on October 3, 1995, no victim or amount of restitution was specified. On September 5, 1996, at the time of imposition of sentence following violation of community control, there again was no discussion concerning an order of restitution. The restitution orders rendered on October, 1996 were defective in that two did not specify an amount and one, which lists $674.75 as the amount of restitution, does not indicate how that sum was determined. Further, apparently Hummell was not given notice or opportunity to be heard concerning the restitution amount, or any victim.

Because the notice of appeal was filed before the trial court entered its restitution orders, we conclude that they were without effect. M.C.L. v. State, 682 So.2d 1209 (Fla. 1st DCA 1996); Nguyen v. State, 655 So.2d 1249 (Fla. 1st DCA 1995); Skaggs v. State, 620 So.2d 1304 (Fla. 2d DCA 1993). At that point, the trial court lacked jurisdiction to enter an order requiring restitution. However, on remand the trial court may impose restitution if the state can demonstrate its right to do so has been preserved, and it

Page 114

follows the proper procedures concerning notice and proofs, and gives Hummell an opportunity to dispute the relevant issues.

We also agree with Hummell that the requirement that his sentence be served "consecutive" to any sentences that might be imposed in...

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2 practice notes
  • Tremaine v. State, No. 95-02791
    • United States
    • Court of Appeal of Florida (US)
    • 19 Septiembre 1997
    ...in Ohio. See Pattmon v. State, 404 So.2d 1177 (Fla. 2d DCA 1981); Keel v. State, 321 So.2d 86 (Fla. 2d DCA 1975); Hummell v. State, 693 So.2d 113 (Fla. 5th DCA 1997). We, therefore, strike that portion of his sentence. We also strike probation condition 14 which states, "[t]his sentence con......
  • Funchess v. State, No. 96-3023
    • United States
    • Court of Appeal of Florida (US)
    • 17 Febrero 1998
    ...concerning notice and proofs, should the state demonstrate that its right to restitution has been preserved. See, e.g., Hummell v. State, 693 So.2d 113 (Fla. 5th DCA MINER and WOLF, JJ., and SHIVERS, Senior Judge, concur. ...
2 cases
  • Tremaine v. State, No. 95-02791
    • United States
    • Court of Appeal of Florida (US)
    • 19 Septiembre 1997
    ...in Ohio. See Pattmon v. State, 404 So.2d 1177 (Fla. 2d DCA 1981); Keel v. State, 321 So.2d 86 (Fla. 2d DCA 1975); Hummell v. State, 693 So.2d 113 (Fla. 5th DCA 1997). We, therefore, strike that portion of his sentence. We also strike probation condition 14 which states, "[t]his sentence con......
  • Funchess v. State, No. 96-3023
    • United States
    • Court of Appeal of Florida (US)
    • 17 Febrero 1998
    ...concerning notice and proofs, should the state demonstrate that its right to restitution has been preserved. See, e.g., Hummell v. State, 693 So.2d 113 (Fla. 5th DCA MINER and WOLF, JJ., and SHIVERS, Senior Judge, concur. ...

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