Opinion
No. 2D21-2776.
01-13-2023
Dawn GIBSON-CAPO, Appellant, v. STATE of Florida, Appellee.
Howard L. Dimmig, II , Public Defender, and Lisa Lott , Assistant Public Defender, Bartow, for Appellant. Ashley Moody , Attorney General, Tallahassee, for Appellee.
Howard L. Dimmig, II , Public Defender, and Lisa Lott , Assistant Public Defender, Bartow, for Appellant.
Ashley Moody , Attorney General, Tallahassee, for Appellee.
LaROSE, Judge.
In this Anders appeal, Dawn Gibson-Capo challenges the order revoking her probation and resulting sentences for third-degree grand theft in case numbers 2019-CF-3579 and 2019-CF-3580. We affirm, without further discussion, the revocation order. We reverse the sentences to the extent that the trial court delegated the determination of a restitution payment schedule.
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
The trial court ordered Ms. Gibson-Capo to pay $438 in restitution in case number 2019-CF-3579. Ms. Gibson-Capo, who was unemployed, asked for a payment plan. The trial court told her to make arrangements through the probation department. The trial court repeated this instruction when it later dismissed her motion to modify sentence. The trial court never set a payment schedule. See generally § 775.089(3)(d), Fla. Stat. (2021) (stating that unless otherwise provided by the court, restitution is payable immediately).
Setting a restitution payment schedule is a nondelegable judicial task. Pearce v. State, 968 So.2d 92, 93 (Fla. 2d DCA 2007) (first citing Lewellen v. State, 685 So.2d 1367, 1368 (Fla. 2d DCA 1996); then citing Douglas v. State, 664 So.2d 1099, 1099 (Fla. 2d DCA 1995); then citing Guinn v. State, 652 So.2d 902, 902 (Fla. 2d DCA 1995); and then citing Briggs v. State, 647 So.2d 182, 182 (Fla. 1st DCA 1994)); see, e.g., Lewellen, 685 So. 2d at 1368 ("The trial court cannot delegate to the probation officer the authority to determine a restitution payment schedule." (citing Douglas, 664 So. 2d at 1099)); Fichera v. State, 688 So.2d 453, 453 (Fla. 1st DCA 1997) ("[T]he trial court improperly delegated to [the defendant's] probation officer the responsibility for creating a schedule of payments consistent with his ability to pay." (first citing Briggs, 647 So. 2d at 182; then citing Bowers v. State, 596 So.2d 480, 481 (Fla. 1st DCA 1992); and then citing Smith v. State, 589 So.2d 387, 388 (Fla. 1st DCA 1991))); Boss v. State, 613 So.2d 525, 526 (Fla. 5th DCA 1993) ("Only the trial court, not the probation officer, can set up a payment schedule."). Thus, the trial court erred in delegating to the probation department the responsibility to set a restitution payment schedule. See Pearce, 968 So. 2d at 93; see also Robinson v. State, 586 So.2d 88, 89 (Fla. 1st DCA 1991) ("While Robinson did not object to the delegation of authority, the failure to object does not confer on the court the authority to violate the law, i.e., to delegate to a probation officer a purely judicial function." (citing Ashe v. State, 582 So.2d 759, 760 (Fla. 1st DCA 1991))). We reverse the sentences to the extent that the trial court delegated authority to the probation department to determine the restitution payment schedule. See Pearce, 968 So. 2d at 94. We remand for the trial court to establish a restitution payment schedule if it determines that installment payments are appropriate. See § 775.089(3); Fichera, 688 So. 2d at 453 (remanding the restitution order for the trial court to determine if a payment schedule is necessary); Smith, 589 So. 2d at 388 (remanding restitution orders because "the court's attempt to delegate to the Department of Corrections the responsibility to determine an amount for regular payments to the aggrieved party is ineffectual and must be stricken" (citing Williams v. State, 556 So.2d 799, 800 (Fla. 4th DCA 1990))).
Affirmed in part, reversed in part, and remanded with directions.
BLACK and LUCAS, JJ., Concur.