State v. Witthaus

• Court: Florida District Court of Appeals
• Writing for the Court: Salcines
• Citation: State v. Witthaus, 944 So.2d 505 (Fla. App. 2006)
• Decision Date: 20 December 2006
• Docket Number: No. 2D05-5994.,2D05-5994.
• Parties: STATE of Florida, Appellant, v. Justin WITTHAUS, Appellee.

944 So.2d 505

STATE of Florida, Appellant, v. Justin WITTHAUS, Appellee.

No. 2D05-5994.

District Court of Appeal of Florida, Second District.

December 20, 2006.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellant.

James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellee.

SALCINES, Judge.

The State appeals from the trial court's denial of restitution.¹ We reverse.

Witthaus was charged with aggravated assault, driving under the influence, and leaving the scene of a crash involving property damage as a result of incidents which occurred on April 19, 2005. Witthaus appeared before the trial court on June 9, 2005, for a plea and sentencing hearing. Witthaus entered a plea to the three charged offenses agreeing, among other things, to make restitution to the victim of the aggravated assault.

Regarding the aggravated assault, during the preliminary discussions between counsel and the trial court prior to the acceptance of the plea, the trial court asked the prosecutor how much restitution was owed to the victim. The prosecutor did not know the entire amount at that time. The trial court indicated that it would order restitution, but since the amount to be imposed was unknown, it would rely on the State to set a status check and would "retain" for ninety days to set a restitution amount. After accepting the plea, the trial court pronounced "two years probation, restitution; I'll retain on the issue of how much restitution."

That oral pronouncement took place at the sentencing hearing on June 9, 2005. A written order of probation was filed June 29, 2005; it included a condition requiring Witthaus to pay restitution "in an amount to be determined" and further stated "the restitution shall be determined within 90 days." A written order setting the amount of restitution was rendered on September 30, 2005, after the ninety-day period had elapsed.

Witthaus filed a motion to strike the order setting restitution arguing that the trial court announced it would retain jurisdiction for ninety days and that the State presented the restitution amount outside the ninety-day period set by the trial court. Witthaus's motion was granted, and the order setting restitution was stricken. The trial court erred in striking that order.

"[A]n order of restitution must be imposed at the time of sentencing or within sixty days thereafter. If an order of restitution has been entered in a timely manner, a court can determine the amount of restitution beyond the sixty-day period." State v. Sanderson, 625 So.2d 471, 473 (Fla.1993). Furthermore, if restitution is made an original condition of probation, a trial court can properly determine the amount of restitution at a later date. Gladfelter v. State, 618 So.2d 1364, 1365 (Fla.1993).

Section 948.03(1), Florida Statutes (2005), sets forth standard terms and conditions of probation. One of the standard conditions provides that a probationer "[m]ake reparation or restitution to the aggrieved party for the damage or loss caused by his or her offense in an amount to be determined by the court." § 948.03(1)(e). As opined by our sister court, the foregoing statutory provision "does not specify when the court must determine the amount, and we conclude that to be a procedural matter falling within the discretion of the trial court." McCaskill v. State, 520 So.2d 664, 665 (Fla. 1st DCA 1988).

Witthaus agreed to make restitution as part of his plea agreement, the trial court ordered restitution at sentencing, and restitution was timely imposed as a condition of probation within sixty days of sentencing. Although the trial court imposed a deadline of ninety days in which to determine the amount of restitution, that self-imposed deadline did not act to divest the trial court of its jurisdiction to determine the amount of restitution. Instead, the trial court's self-imposed deadline was a matter of procedure falling within the purview of its discretion. See McCaskill, 520 So.2d at 665.

At the time the trial court entered the order setting the amount of restitution to be made by Witthaus—an amount to be paid by Witthaus as a condition of his probation for a probationary sentence then in effect—it had jurisdiction to make such a determination. Cf. Davis v. State, 685 So.2d 1357, 1358 (Fla. 2d DCA 1996) (holding trial court lacked jurisdiction to amend restitution order; "while the court can set the amount of restitution more than sixty days after entry of an order imposing restitution, the court cannot...