McClure v. State
| Decision Date | 18 May 1979 |
| Docket Number | No. 78-1335,78-1335 |
| Citation | 371 So.2d 196 |
| Parties | Lynn M. McCLURE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Raymond O. Gross, of Gross & Doherty, Clearwater, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
Lynn M. McClure appeals a term of probation imposed upon her following a finding of guilty to four counts of grand larceny. She argues that in the order of probation the trial judge improperly delegated the duty of determining the amount of restitution to the Probation and Parole Commission. We agree and remand for correction of the order of probation.
Mrs. McClure was charged with stealing money from her employer, C. A. Atherton Oil Company. She pleaded no contest to the charges. Thereafter, a sentencing hearing took place at which Mrs. McClure's attorney argued that his client should be placed on probation, pointing out that nothing would be gained in placing a 48-year old woman in prison and that the likelihood of future criminal activity was slight. Additionally, he made this statement:
As to Atherton Oil Company's lost funds as a result of her actions, there is currently civil litigation in process to ascertain the amounts therein, and to seek reimbursement of that.
The court was persuaded by this argument and gave Mrs. McClure the choice of a sentence of three years in prison (the maximum sentence was twenty years) or of ten years probation with the condition that:
You will make restitution on a schedule prescribed by your probation officer in the amount as determined by the civil court, when it is determined by the civil court.
Mrs. McClure chose probation. However, the written probation order provided that Mrs. McClure as a condition of probation: "Make full restitution as determined by probation . . . "
Mrs. McClure appeals, contending that the court unlawfully delegated determination as to the amount of restitution to the Probation and Parole Commission. The probation order could be interpreted to mean that the Probation and Parole Commission or a probation officer was to determine the amount to be repaid, as well as the schedule of repayment. This, of course, would be an unlawful delegation of a responsibility which is exclusively that of the court. Kroenke v. State, 366 So.2d 46 (Fla. 2d DCA 1978). The written order of probation should therefore be corrected to conform to the judge's oral...
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Reynolds v. State
...the amount of restitution due, for that is the statutory responsibility of the trial court. Id. at 1156, citing McClure v. State, 371 So.2d 196, 197 (Fla. 2nd DCA 1979); Gray v. State, 535 So.2d 721 (Fla. 1st DCA 1988). In this instance, the restitution order is invalid because the determin......
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E. Y. v. State, 79-1859
...to the amount. Additionally, the authority to determine the amount cannot be delegated to the probationer's supervisor. McClure v. State, 371 So.2d 196 (Fla. 2d DCA 1979); Kroenke v. State, 366 So.2d 46 (Fla. 2d DCA 1978), cert. denied, 374 So.2d 99 For the foregoing reasons, the appellant'......
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Fletcher v. State, 81-398
...to a nonjudicial officer. Kroenke v. State, 366 So.2d 46 (Fla. 2d DCA 1978), cert. denied, 374 So.2d 99 (Fla. 1979); McClure v. State, 371 So.2d 196 (Fla. 2d DCA 1979). By delegating such authority to a probation officer, the court did not afford Fletcher an opportunity to be heard on the a......
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Cada v. State, 79-699
...appellant must pay. Fresneda v. State, 347 So.2d 1021 (Fla.1977); Cothron v. State, 377 So.2d 255 (Fla. 2d DCA 1979); McClure v. State, 371 So.2d 196 (Fla. 2d DCA 1979); Kroenke v. State, 366 So.2d 46 (Fla. 2d DCA 1978), cert. denied 374 So.2d 99 (Fla.1979). Appellant is entitled to a heari......