J.D. v. State, 97-1323
| Decision Date | 15 December 1997 |
| Docket Number | No. 97-1323,97-1323 |
| Citation | 705 So.2d 44 |
| Parties | 23 Fla. L. Weekly D204 J.D., a child, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender; David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General; L. Michael Billmeier, Assistant Attorney General, Tallahassee, for Appellee.
In this juvenile delinquency proceeding, appellant contends that the trial court committed reversible error when it ordered him to pay restitution because (1) the order imposing restitution was not entered within 60 days of the date of disposition; (2) appellant was not present at the restitution hearing, and there is nothing to suggest that he waived his right to be present; and (3) the evidence was insufficient to support the amount awarded. Because appellant was not present at the restitution hearing, and the record does not reflect that he waived his right to be present, we reverse.
An order imposing restitution may not be entered more than 60 days after entry of the disposition order. State v. M.C., 666 So.2d 877 (Fla.1995). However, the amount of restitution may be determined more than 60 days after the disposition order has been entered, provided that an order imposing the obligation to pay restitution was timely entered. State v. Sanderson, 625 So.2d 471 (Fla.1993). Our review of the record satisfies us that the obligation to pay restitution, in an amount to be determined, was imposed by the disposition order. Accordingly, there is no merit to appellant's first argument.
Appellant's second argument is that the restitution order must be reversed because he was not present at the hearing, and there is nothing in the record to indicate that he waived his right to be present. In J.B. v. State, 646 So.2d 808 (Fla. 1st DCA 1994), we reversed a restitution order because the juvenile had not been present at the hearing, and there was not competent, substantial evidence that he had waived his right to be present. J.B. controls here, and requires that we reverse the restitution order. * On remand, the state may again seek restitution, should it so elect. In light of this disposition, we conclude that it is unnecessary to reach appellant's argument regarding the sufficiency of the evidence to support the amount of restitution awarded.
REVERSED and REMANDED, with directions.
LAWRENCE, J., concurs specially with opinion.
I concur that we are bound by our decision in J.B. v. State, 646 So.2d 808 (Fla. 1st DCA 1994). The sad result of following J.B. is that twelve-year-old J.D. effectively has shut down the juvenile justice system as it attempted to set restitution for his eighty-six-year-old victim. The witness' time attending court and testifying is for nought and the cost of securing attendance, as well as the time of the trial judge, the prosecutor, the public defender, and other court personnel, is totally lost. The trial judge is left with no alternative but to place J.D. in custody and detain him until the next restitution hearing, an additional and substantial cost to the citizens of Florida. This remedy moreover may generate additional litigation over confining J.D. for a restitution hearing, which ultimately hinges on J.D.'s ability to pay. Without this remedy however, any juvenile can thwart the judicial process and thus escape restitution simply by refusing to be present for the restitution hearing. The result is further unjust when the process for setting restitution is subverted by the law breaker whose liberty interests are not initially at stake.
J.D. was given notice of the hearing. ** Whether J.D. was given notice of the hearing, however, makes no difference in the holding of the majority, in that the majority opinion is founded upon the failure of J.D. to make an affirmative waiver of his presence at the restitution hearing. Thus, the result, according to the majority, would be the same, with or without reasonable notice.
J.D.'s counsel made no objection to proceeding in the absence of his client, and made no attempt to offer any reason for his client's failure to appear. The hearing resulted in the entry of an order for restitution in the amount of $1895.15, for J.D.'s burglary of a home and his criminal mischief therein. Subsequent to the hearing, no request for a new hearing was made, despite that Florida Rule of Juvenile Procedure 8.270 provided relief from the restitution order in the event J.D. established good cause for his absence. ***
I would prefer to follow the rationale of our supreme court in Capuzzo v. State, 596 So.2d 438 (Fla.1992). Capuzzo, having knowledge of his sentencing hearing, fled the courthouse and removed himself from the jurisdiction of the court. He, in absentia, then was sentenced to a mandatory term of fifteen years in prison for trafficking in cocaine. The supreme court, despite that Florida Rule of Criminal Procedure 3.180(a) requires the presence of a defendant for imposition of sentence, and notwithstanding that there was no affirmative waiver by Capuzzo, nevertheless concluded:
We see no reason to distinguish between a defendant's presence at sentencing and his or her presence at other crucial stages of the trial that occur prior to the return of the verdict. Neither precedent nor common sense requires allocating more "protection" to a defendant's presence during sentencing than, for example, his or her presence at the return of the verdict, upon which the trial's most fateful determination rests, (i.e., the fundamental determination of guilt or innocence). Where a defendant absents himself or herself by fleeing the court's jurisdiction, that defendant cannot claim lack of an express waiver. In such circumstances, securing an express waiver is impossible and the defendant's actions constitute a valid waiver. E.g., State v. Gurican, 576 So.2d 709, 712 (Fla.1991) (); Dufour v. State, 495 So.2d 154, 161 (Fla.1986) (), cert. denied, 479 U.S. 1101, 107 S.Ct. 1332, 94 L.Ed.2d 183 (1987). A contrary rule of law would be repugnant to the rationale behind rule 3.180, which inherently dictates that ...
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NC v. State, 2D00-2010.
...or the State must demonstrate that N.C. voluntarily waived his right to be present. See Fla. R.Juv.P. 8.100(a); J.D. v. State, 705 So.2d 44 (Fla. 1st DCA 1997). Moreover, the court shall make a finding as to N.C.'s (or his parents') ability to make restitution payments. See § 985.231(1)(a)1......
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Whitten v. State, 4D02-228.
...the right to be present at the restitution hearing, but he must expressly object to preserve the error for appeal. See J.D. v. State, 705 So.2d 44 (Fla. 1st DCA 1997); see also Schotsch v. State, 670 So.2d 127, 128 (Fla. 4th DCA 1996). The defendant also must present evidence that he could ......
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