Chaney v. State
Chaney v. State
Opinion of the Court
On a four count information appellant was convicted of Count II, sexual battery with slight force, for which he was sentenced to twenty years as an habitual felony offender, and Count IV, attempted robbery, for which he was sentenced to five years concurrent with credit for jail time served. We affirm both the judgment and the sentences, as herein modified.
Appellant’s first two points concern evidentiary rulings, neither of which, if error, was harmful nor requires discussion. Appellant was sentenced as an habitual felony offender under section 775.084, Flor-ida Statutes (1989). His challenge to the constitutionality of the amendments to that statute contained in chapter 89-280, Laws of Florida, is academically sound. State v. Johnson, 616 So.2d 1 (Fla. 1993). However, he is entitled to no relief because he was not affected by the amendments to the statute as contained in chapter 89-280. Id.
With respect to the sentencing, the court, without making the required statutory findings of fact,
The court did not at the time of sentencing enter an order of restitution nor reserve the right to do so at a later time. Rather, twelve days later and after appellant had commenced serving his sentence, the court filed a written order requiring restitution, reserving until a subsequent date a determination of the amount. While the court may order restitution at the time of sentencing and reserve to a later date the determination of the amount, see generally, Hatcher v. State, 591 So.2d 1134 (Fla. 4th DCA), review denied, 599 So.2d 1278 (Fla. 1992), it may not order restitution except as a part of the sentence. Once the sentence has been pronounced and the defendant has commenced serving that sentence it may not be increased. Cherry v. State, 439 So.2d 998 (Fla. 4th DCA 1983); Gonzalez v. State, 384 So.2d 57 (Fla. 4th DCA 1980); see also Singletary v. State, 530 So.2d 460 (Fla. 5th DCA 1988) (probation condition requiring defendant to make restitution stricken where it was not imposed at sentencing); Pooley v. State, 403 So.2d 593 (Fla. 1st DCA 1981) (legal sentence cannot be increased after defendant had begun serving it); In Interest of D.T., 477 So.2d 1086 (Fla. 4th DCA 1985) (trial court had no authority to impose restitution after entry and performance of probation or community control order which contained no order of restitution). The untimely order of restitution must be quashed. Glee v. State, 539 So.2d 14 (Fla. 4th DCA 1989) (order granting restitution quashed because when the sentence was imposed the trial 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 concurs
The judgment is modified to reflect that the offense for which appellant was convicted under Count II of the Information is a second degree felony, and as modified is affirmed. The order granting restitution is quashed and in all other respects the sentences on Counts II and IV are severally affirmed.
. The court’s discussion with the prosecutor and appellant's counsel concerning appellant’s prior criminal record (as disclosed by the presentence investigation) may have led the court to believe that appellant had waived the necessity for making any factual findings.
. We take this opportunity to again remind that section 775.084(3j(d) requires express findings. See Walker v. State, 462 So.2d 452 (Fla. 1985).
Concurring in Part
concurring in part and dissenting in part.
In my judgment, an otherwise proper restitution order that is entered after a sentence is imposed should be deemed valid as long as it is imposed within the 60 day period within which the trial court has jurisdiction. Cf. State v. Butz, 568 So.2d 537 (Fla. 4th DCA 1990). Therefore, as to that issue, I dissent. In all other respects, I concur in the opinion.
Concurring in Part
concurring in part and dissenting in part.
Although I concur in the majority’s opinion on the sentencing issues, I believe the trial court committed reversible error in admitting, over objections, testimony by a state witness as to statements about the incident by the victim, as well as the witness’ opinion as to the truthfulness of these statements. I cannot find this testimony harmless under the test set out in State v. DiGuilio, 491 So.2d 1129 (Fla. 1986).
Reference
- Full Case Name
- James CHANEY v. STATE of Florida
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