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588 So. 2d 324

Docket No. 91-0582.

Denmark v. State

Boyise DENMARK, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida

Decided November 6, 1991.

District Court of Appeal of Florida · decided 1991-11-06

Key passage — most relied on by later courts

“The court, 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 present and potential future financial needs and earning ability of the defendant and his dependents, and such other factors which it deems appropriate.”

quoted by 1 later decision, including 610 So. 2d 705 - Strickland v. State

Relies on State v. Beasley · 509 So. 2d 1115 - Ochoa v. State · Thomas v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1991-11-06

How this case has been cited

Cited by 19 later decisions — most recently December 2011

19 state decisions

170199120002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1*325 Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.

¶2Robert A. Butterworth, Atty. Gen., Tallahassee, and Melvina Racey Flaherty, Asst. Atty. Gen., West Palm Beach, for appellee.

¶3LETTS, Judge.

¶4The trial court ordered the defendant to pay $1,000 in restitution without a hearing. We reverse.

¶5At the sentencing hearing, there was no discussion pertaining to restitution. Nevertheless, it was prescribed in the written order.

¶6In recent times, we have thrice held that the trial court must consider a defendant's resources prior to the imposition of restitution. Thomas v. State,517 So.2d 132 (Fla. 4th DCA 1987); Snell v. State,502 So.2d 489 (Fla. 4th DCA), rev. denied,509 So.2d 1119 (Fla. 1987); Pellot v. State,582 So.2d 124 (Fla. 4th DCA 1991). We have not done so by appellate whim or caprice. Section 775.089, Florida Statutes (1989), orders restitution only after the trial court considers "the financial resources of the defendant" including his "present and potential future financial needs and earning ability... ." Obviously, the court cannot consider the defendant's resources unless it holds a hearing or unless the record somehow demonstrates the defendant's liquidity which it does not sub judice.

¶7We have also considered the recent supreme court ruling in State v. Beasley,580 So.2d 139 (Fla. 1991). However, we distinguish Beasley which refers only to costs at such time as the state seeks to enforce the collection thereof. At bar, we are concerned with restitution, not costs. Moreover, the Beasley opinion was careful to note that its decision would have been otherwise had the applicable statute specifically required a determination as to the defendant's ability to pay. Id. at 142. The restitution statute requires exactly that.

¶8We must therefore reverse and remand for further proceedings on this issue.

¶9We find no reversible error in the remaining point on appeal.

¶10AFFIRMED IN PART; REVERSED IN PART.

¶11DOWNEY and WARNER, JJ., concur.

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