Pettway v. State, 85-2408
| Decision Date | 27 February 1987 |
| Docket Number | No. 85-2408,85-2408 |
| Citation | 502 So.2d 1366 |
| Parties | John Everett PETTWAY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and A.N. Radabaugh, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and James A. Young, Asst. Atty. Gen., Tampa, for appellee.
The defendant challenges in three respects the judgment and sentence entered against him upon his conviction of petit theft. First, he claims that the trial judge erred in imposing costs against him under section 27.3455, Florida Statutes (1985); second, he asserts that the trial judge erred in the manner in which he imposed restitution; and, third, he objects to the fact that the judgment form does not reflect the type and degree of crime for which he was convicted. We find merit in each of these claims.
As to the imposition of costs under section 27.3455, the defendant points out that the trial judge did not afford him notice and hearing before assessing costs under section 27.3455, which he claims is required by the decision of the Supreme Court of Florida in Jenkins v. State, 444 So.2d 947 (Fla.1984). This court has recently so held. Beahn v. State, 499 So.2d 74 (Fla. 2d DCA 1986). Accordingly, we must remand this cause to the trial judge to afford the defendant the procedural requirements of Jenkins v. State. We note that section 27.3455 has been amended effective October 1, 1986. Ch. 86-154, § 1, Laws of Fla.
With regard to restitution, we find that the trial judge failed to follow the requirements of section 775.089(6), Florida Statutes (1985). That subsection requires that the trial judge, in determining whether to order restitution and the amount of such restitution, shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and his dependents, and such other factors which he deems appropriate. We point out that section 775.089(3), Florida Statutes (1985), permits the trial judge to require that the defendant make restitution in specified installments or within a specified period, so long as the last installment or the end of the period is not later than five years after the end of the term of imprisonment imposed, where the trial judge does not order probation. In this case, the judgment recites merely that "the Defendant is to make restitution." Thus the defendant had no opportunity to object to the amount or terms of payment of the restitution ordered.
Accordingly, on remand the trial...
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...ability of the defendant and his or her dependents, and other factors as the court deems appropriate. Id. ; Pettway v. State , 502 So.2d 1366, 1367 (Fla. Dist. Ct. App. 1987). We find the sentencing court should consider all these factors when awarding the final amount of restitution based ......
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