State v. Butz, 89-3206
| Decision Date | 24 October 1990 |
| Docket Number | No. 89-3206,89-3206 |
| Citation | 568 So.2d 537 |
| Parties | 15 Fla. L. Weekly D2649 STATE of Florida, Appellant, v. George Franklin BUTZ, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., Tallahassee, and Don M. Rogrs, Asst. Atty. Gen., West Palm Beach, for appellant.
Bruce A. Zimet of Bruce A. Zimet, P.A., Fort Lauderdale, for appellee.
The state timely seeks review of the trial court's denial, on the grounds of lack of jurisdiction, of the state's post-trial and post-sentencing hearing, rule 3.800 motion requesting the imposition of restitution. We affirm.
After a jury convicted Butz of aggravated battery and trespassing, the trial court sentenced him to a term of four and one-half years incarceration. Although the court file contained a victim impact statement showing doctor bills exceeding $150,000, the trial court neither ordered restitution pursuant to section 775.089, Florida Statutes (1989), nor stated its reasons for not so doing. The state failed to request such either in the presentence investigation or at the sentencing hearing. Within sixty days subsequent to the sentencing hearing, the state filed a motion to determine restitution. The hearing on the motion was not held until after the sixty-day period, at which time the trial court denied imposition of restitution based on a lack of jurisdiction.
Florida Rule of Criminal Procedure 3.800(a) permits a court to correct an illegal sentence at any time but does not authorize the increase of a legal sentence. State v. Whitfield, 487 So.2d 1045 (Fla.1986). Rule 3.800(b) permits reduction or modification of a legal sentence within sixty days after imposition of such. Therefore, the question is whether the failure to impose restitution as part of a sentence results in an illegal sentence which would be correctible at any time, or merely incomplete, which would be correctible only within the sixty-day window.
We agree with our sister court's characterization of this type of sentence as incomplete and subject to modification. See Grice v. State, 528 So.2d 1347, 1350 (Fla. 1st DCA 1988). We also agree that any "modification" through the addition of restitution costs is not sentence enhancement. Id. at 1350. Given the facts of this case, we cannot say that failure to include restitution resulted in an illegal sentence. Therefore, only if brought to the court's attention within the sixty-day window would the court have jurisdiction to...
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State v. MacLeod
...So.2d 237, 238 (Fla. 2d DCA 1991) (characterizing sentence not imposing restitution as "incomplete" but not "illegal"); State v. Butz, 568 So.2d 537 (Fla. 4th DCA 1990) (trial judge's order failing to include restitution, without stating its reasons for not doing so, does not result in ille......
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Chaney v. State, 91-2287
...court failed to retain jurisdiction to order restitution). Contra, Grice v. State, 528 So.2d 1347 (1st DCA 1988); cf. State v. Butz, 568 So.2d 537 (Fla. 4th DCA 1990). The written judgment incorrectly reflects that sexual battery with slight force is a first degree felony, and the state con......
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State v. Sanderson
...E.g., Weaver v. State, 588 So.2d 53 (Fla. 3d DCA 1991); McLaughlin v. State, 573 So.2d 419 (Fla. 2d DCA 1991); State v. Butz, 568 So.2d 537 (Fla. 4th DCA 1990). In other cases, however, the courts have affirmed amounts for restitution determined more than sixty days after imposition of sent......
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Scott v. State, 93-249
...1st DCA 1993); Campbell v. State, 614 So.2d 600 (Fla. 1st DCA 1993); Weaver v. State, 588 So.2d 53 (Fla. 3d DCA 1991); State v. Butz, 568 So.2d 537 (Fla. 4th DCA 1990). See also State v. Sanderson, 625 So.2d 471 (Fla.1993). We reject the state's argument that the 60 day period only begins t......