Smith v. State, 92-586
| Decision Date | 01 October 1992 |
| Docket Number | No. 92-586,92-586 |
| Citation | 613 So.2d 1325 |
| Parties | 18 Fla. L. Week. D262 Shahjahan SMITH, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender, and Nada M. Carey, Carey, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and Bradley R. Bischoff, Asst. Atty. Gen., Tallahassee, for appellee.
AFFIRMED.
ON MOTION FOR REHEARING
Appellant seeks rehearing of this court's per curiam affirmance without written decision, in which we affirmed the trial court's order on restitution. On appeal, appellant contended the trial court erred in ordering restitution without inquiring into his ability to pay, and in requiring appellant to comply with a payment schedule to be developed by his probation officer. As grounds for rehearing, appellant maintains the court's per curiam affirmance makes no sense, in light of the parties' agreement that the trial court ordered appellant to comply with a payment schedule to be developed by his probation officer, and settled case law that precludes delegation of a payment schedule to a probation officer. We deny the motion for rehearing, with the following brief discussion of the rationale underlying our decision to affirm the restitution order.
Appellant was charged with: (1) attempted first-degree murder, by shooting the victim with a pistol; (2) use of a firearm in commission of a felony; and (3) possession of cocaine. He pled no contest to aggravated battery. Thereafter, his initial sentence was vacated, and the trial court imposed a two-year youthful offender sentence, followed by a four-year probationary term, with a condition of payment of $18,577.95, as restitution for the victim's medical expenses. At the restitution hearing, appellant argued that restitution could not be imposed without a determination of his ability to pay. The trial judge observed that he had no idea what appellant's ability to pay would be after he completed his two-year sentence. The judge noted that upon his release, appellant would have to meet with his probation officer to discuss his financial circumstances and an appropriate payment schedule. The written restitution order states in part:
The court ruled that the defendant's ability to pay could not be determined adequately at this time because, the sentence imposed was two years in the Department of Corrections as a youthful offender, followed by a term of four years probation. The restitution would be payable as a condition of and during the course of probation.
The court ruled that the defendant's ability to pay and his other financial circumstances bearing on his ability to pay could be raised during any subsequent hearing on a violation of probation based upon non-payment of restitution.
Under the provisions of section 775.089(1)(a) and (b), Florida Statutes (1991), the trial court is required to order the defendant to make restitution to the victim of his crime, absent clear and compelling reasons not to do so. Section 775.089(7),...
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