Opinion
No. 2D20-386
06-04-2021
E.H.W., Appellant, v. STATE of Florida, Appellee.
Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Laurie Benoit-Knox, Assistant Attorney General, Tampa, for Appellee.
Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Laurie Benoit-Knox, Assistant Attorney General, Tampa, for Appellee.
SILBERMAN, Judge.
In 2016 E.H.W. was a seventeen-year-old juvenile who was found to have committed the delinquent acts of grand theft of a motor vehicle and fleeing or eluding a law enforcement officer. E.H.W. challenges a restitution order entered on January 15, 2020, arguing that the trial court lacked jurisdiction to enter that order. He also argues that the trial court erred when it convened a restitution hearing without his presence. We agree as to both issues and reverse the January 15, 2020, restitution order and remand for it to be stricken.
E.H.W. was born on May 6, 1999. The State charged E.H.W. with committing the delinquent acts of grand theft motor vehicle and fleeing and eluding a law enforcement officer, occurring on April 7, 2016. It appears that in the course of stealing the car, E.H.W. damaged the car and another person's property. The adjudicatory hearing was held on September 28, 2016. On October 4, 2016, the trial court entered a Juvenile Disposition Order in which it withheld adjudication of delinquency, placed E.H.W. on probation for an indefinite period not to exceed his nineteenth birthday, and ordered restitution for property damage of $1,000 to the second victim. As to the first victim (the owner of the stolen car), the order also had a box check-marked which stated: "Restitution shall be determined as follows: [the first victim]."
On February 14, 2018, the court held a hearing on the State's "Motion for Court to Reserve Jurisdiction as to Restitution After His 19th Birthday." The prosecutor asserted that at the conclusion of the adjudicatory hearing the court had orally ordered restitution as to the second victim and reserved as to the first victim. Referring to the first victim, the prosecutor asserted that "no separate restitution order has been entered. So I was asking for that to be done before any jurisdiction runs in the case. I'm not trying to get Your Honor to do anything illegal ... I'm just trying to preserve her right." The prosecutor added that while the first victim had all the documentation, she thought "there was an extra piece," but "before the first restitution status check" E.H.W. had filed an appeal. The prosecutor's argument presumably refers to an appeal following entry of the 2016 disposition order.
Instead of presenting evidence to establish the amount of restitution, the prosecutor simply requested that the court enter an order reserving jurisdiction on the amount of restitution to be paid to the first victim. The prosecutor argued that such an order would allow the court to retain jurisdiction to enforce restitution after E.H.W.'s nineteenth birthday. The defense agreed with the prosecutor's assertion as to what the court had orally pronounced at an earlier hearing. However, the defense refused to agree that the requested order would allow the court to determine the amount of restitution and to enter an enforceable restitution order after E.H.W.'s nineteenth birthday.
The trial judge signed the restitution order but commented that the order "will give me whatever it gives me based on what the appellate courts say about it." In that order, rendered on February 14, 2018, the court found "that reasonable restitution for the Child and/or parents to pay through the court" to the second victim is $1,000. As to the first victim, the order states, "Total: Amount to be Determined." The order further provides that "[t]he Court retains jurisdiction over restitution and payment schedule, beyond the child's nineteenth birthday and until restitution is paid." Three months later, E.H.W. turned nineteen years old.
On January 15, 2020, the trial court held a restitution hearing. E.H.W. was not present and his attorney objected to proceeding without E.H.W. The prosecutor argued that E.H.W.'s current whereabouts were unknown, that E.H.W. had failed to appear for a prior restitution hearing, and that the prosecutor had spoken with E.H.W. and his grandfather about the hearing. Further, the prosecutor asserted that E.H.W. and his grandfather had been "hand noticed" of the January 15, 2020, hearing by virtue of a deputy clerk's statement that E.H.W. had, at some point in the past, "signed in court for today's date." The court took no testimony and considered no evidence apart from these unsworn statements and the argument of the prosecutor, and it made no finding that E.H.W. had voluntarily waived notice of the proceeding. Instead, the court proceeded with the hearing, heard testimony from the first victim and her father, and on that date rendered an amended restitution order in the amount of $1,785.43 for the first victim.
E.H.W. challenges the amended restitution order and raises two issues. First, he argues that the trial court was without jurisdiction to enter the amended restitution order following his nineteenth birthday. Second, he argues that the trial court erred when it convened the subsequent hearing without his presence. E.H.W. is correct as to both issues. Accordingly, we reverse and remand for the amended restitution order to be stricken.
Within this first point on appeal, E.H.W. also argues that the circuit court could not lawfully enter the amended restitution order because sixty days had passed since the entry of the first restitution order. This argument is without merit. See State v. Sanderson , 625 So. 2d 471, 473 (Fla. 1993) ("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."); D.A.D. v. State , 100 So. 3d 67, 68 (Fla. 2d DCA 2011) ("[T]he trial court's oral pronouncement at the disposition hearing timely reserved jurisdiction to award restitution beyond the sixty-day period in rule 3.800(c).").
Ordinarily, we review a restitution order for abuse of discretion. Bellot v. State , 964 So. 2d 857, 859 (Fla. 2d DCA 2007) (citing Koile v. State , 902 So. 2d 822, 824 (Fla. 5th DCA 2005) ). However, E.H.W.'s first point concerns the statutory grant of jurisdiction to a trial court for delinquency proceedings. Statutory interpretation is an issue we review de novo. See IOU Cent. Inc. v. Pezzano Contracting & Dev., LLC , 311 So. 3d 295, 298 (Fla. 2d DCA 2020) (citing Tubbs v. Mechanik Nuccio Hearne & Wester, P.A. , 125 So. 3d 1034, 1039 (Fla. 2d DCA 2013) ); Furst v. Rebholz , 302 So. 3d 423, 428 (Fla. 2d DCA 2020) (citing Fla. Hosp. Waterman, Inc. v. Buster , 984 So. 2d 478, 485 (Fla. 2008) ).
A trial court may order a child to make restitution "for any damage or loss caused by the child's offense in a reasonable amount or manner to be determined by the court." § 985.437(2), Fla. Stat. (2015). "This order shall be part of the probation program to be implemented by the department or, in the case of a committed child, as part of the community-based sanctions ordered by the court at the disposition hearing or before the child's release from commitment." § 985.437(1). Section 985.0301(5)(a) provides, in pertinent part, that "the court shall retain jurisdiction to dispose of a case, unless relinquished by its order, until the child reaches 19 years of age, with the same power over the child which the court had before the child became an adult." Thus, the trial court's jurisdiction over a child generally comes to an end when the child turns nineteen if the child is placed on probation. See § 985.0301(5)(b) 1.
Section 985.0301(5)(d) further provides as follows:
(d) The court may retain jurisdiction over a child and the child's parent or legal guardian whom the court has ordered to pay restitution until the restitution order is satisfied. To retain jurisdiction, the court shall enter a restitution order, which is separate from any disposition or order of commitment, on or prior to the date that the court's jurisdiction would cease under this section. The contents of the restitution order shall be limited to the child's name and address, the name and address of the parent or legal guardian, the name and address of the payee, the case number, the date and amount of restitution ordered, any amount of restitution paid, the amount of restitution due and owing, and a notation that costs, interest, penalties, and attorney fees may also be due and owing. The terms of the restitution order are subject to s. 775.089(5).
(Emphasis added.)
The question before us is whether the orders entered before E.H.W.'s nineteenth birthday, and specifically the order of February 14, 2018, were sufficient to retain jurisdiction over E.H.W. beyond his nineteenth birthday. The State contends that jurisdiction was reserved because the court entered one restitution order for the case that specified an amount as to the second victim and reserved as to the first victim.
Section 985.0301(5)(d) does not permit the retention of jurisdiction to determine the amount of restitution that is owed; rather, retention of jurisdiction is permitted over a child "whom the court has ordered to pay restitution until the restitution order is satisfied." Satisfaction may only be achieved when there is an amount to be satisfied. Here, the State seeks to expand the statutory language to allow the retention of jurisdiction not simply for a court to ensure satisfaction of the restitution amount that had been awarded but also to determine the amount that may later be satisfied.
We agree that the court properly reserved jurisdiction over E.H.W. under section 985.0301(5)(d) regarding restitution to the second victim "until the restitution order is satisfied" because the February 14, 2018, restitution order contained the restitution amount of $1,000, was entered before E.H.W. turned nineteen, and was entered before the court lost jurisdiction over him. But we cannot agree that the court could reserve jurisdiction over E.H.W. until after he turned nineteen to determine the restitution amount owed to the first victim.
Our conclusion is consistent with the provisions of section 985.0301(5)(d). That statute describes the contents of a restitution order and, indeed, limits what may be in a restitution order. Included in the list of contents is the "amount of restitution ordered" as well as the payee's name and address. § 985.0301(5)(d). The statute does not permit inclusion of the statement: "Amount to be Determined." Because the amended restitution order did not include the amount of restitution owed to the first victim, it was not effective to enable the trial court to retain jurisdiction over E.H.W. beyond his nineteenth birthday in order to assure satisfaction of a specified amount. See V.A.C. v. State , 136 So. 3d 612, 614 (Fla. 2d DCA 2013) ("[A] juvenile court can reserve jurisdiction to enforce restitution orders until they are satisfied. But to do so, the court must enter a distinct restitution order prior to losing jurisdiction. Otherwise, the juvenile court's authority to order restitution ends when the child reaches nineteen."); E.D.B. v. State , 5 So. 3d 787, 789 (Fla. 5th DCA 2009) (determining that a prior but almost identical version of section 985.0301(5)(d) "states what must be included in a restitution order"); J.D. v. State , 849 So. 2d 458, 460 (Fla. 4th DCA 2003) (noting that subsequent to a child's nineteenth birthday a trial court's jurisdiction is limited "to enforcing (restitution) orders already in effect" and that the court lacks "jurisdiction to enter an order setting the amount of restitution, or any order for that matter"). Cesaire v. State , 811 So. 2d 816, 818 (Fla. 4th DCA 2002) ("[A] juvenile court may extend its jurisdiction to complete the payment of restitution," but once jurisdiction terminated "the court had no jurisdiction to enter new orders requiring the payment of restitution.") (emphasis added).
The record does not explain the reason why the State waited until January 2020 to present evidence, over objection, to determine the amount of restitution owed to the first victim. And the State cites no authority for the proposition that a trial court can retain jurisdiction over a child for what may be an indefinite period, well into adulthood and well after the child has finished his or her probation, to someday determine the amount of restitution owed to a victim. In summary, because the amount of restitution was determined well after E.H.W.'s nineteenth birthday, we are compelled to reverse the amended restitution order awarding $1,785.43 as to the first victim.
As to E.H.W.'s second issue, defendants have "a constitutional right to be present at a restitution hearing and, if they do not validly waive that right, it is reversible error to conduct the hearing and impose restitution in their absence." A.O.L. v. State , 141 So. 3d 675, 676 (Fla. 2d DCA 2014). A defendant may waive the right to be present at a restitution hearing, either expressly or by implication resulting from the defendant's voluntary absence. See Baker v. State , 979 So. 2d 453, 455 (Fla. 2d DCA 2008). To support a finding of waiver, the evidence must establish that the defendant knowingly and voluntarily "waived his right to appear at the restitution hearing or that he knew of the hearing and voluntarily absented himself from it." Id. The State bears "the burden to show the voluntary nature of the defendant's waiver." Bishop v. State , 143 So. 3d 1073, 1075 (Fla. 2d DCA 2014) ; see also J.B. v. State , 646 So. 2d 808, 808 (Fla. 1st DCA 1994) (noting that the trial court did not make a finding of waiver and reiterating that unsworn statements do not constitute competent, substantial evidence of waiver).
Here, the State urged the court to proceed with the restitution hearing despite E.H.W.'s absence. The State argued that E.H.W. had been noticed to appear and that he had previously failed to appear for a restitution hearing. A court clerk stated that E.H.W. had "hand—he signed in court" for the hearing date and it "[l]ooks like he was noticed to be here" with notice given at an address in Palm Harbor, Florida. A representative from the Department of Juvenile Justice (DJJ) indicated that the DJJ had a different address for E.H.W. Over defense counsel's objection, the trial court said it would proceed with the hearing despite E.H.W.'s absence. In doing so, the court committed reversible error. Unsworn statements from a clerk and a DJJ representative together with the unsworn statements and legal arguments of the prosecutor do not constitute competent, substantial evidence to support a finding of a voluntary waiver of presence. See A.O.L. , 141 So. 3d at 676 ("The trial court in this case implicitly found that the juvenile had waived her right to be present based on an unsworn statement that A.O.L. and her mother had received notice of the hearing, but the court's assumption of waiver was not supported by competent, substantial evidence."); see also C.C.N. v. State , 1 So. 3d 1151, 1152 (Fla. 2d DCA 2009) ("[U]nsworn statements that the defendant had notice of the hearing are not sufficient to prove waiver.").
For these reasons, we reverse the amended restitution order. Our decision does not impact the enforceability of the restitution order rendered February 14, 2018, that ordered $1,000 restitution to the second victim.
Reversed.
ROTHSTEIN-YOUAKIM, J., Concurs.
LUCAS, J., Concurs in result only.