Bautista v. State

District Court of Appeal of Florida

Bautista v. State

600 So. 2d 1255, 1992 Fla. App. LEXIS 6541, 1992 WL 135046

CourtDistrict Court of Appeal of Florida

DecidedJune 17, 1992

DocketNo. 91-02455

StatusPublished

Cited by3 cases

This text of 600 So. 2d 1255 (Bautista v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Bautista v. State, 600 So. 2d 1255, 1992 Fla. App. LEXIS 6541, 1992 WL 135046 (Fla. Ct. App. 1992).

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Opinion

LEHAN, Acting Chief Judge.

Defendant appeals the order requiring him to pay $123,971.53 restitution upon his conviction for leaving the scene of an automobile accident with injuries. He challenges the propriety of any restitution under the circumstances of this case and also contends the trial court failed to consider his ability to pay $123,971.53. We reverse.

As part of a negotiated plea, defendant agreed to pay restitution, reserving his right to a hearing to determine the amount. Because of his agreement, he has waived any objection to the propriety of restitution. See Ferris v. State, 558 So.2d 179 (Fla. 2d DCA 1990); Pollock v. Bryson, 450 So.2d 1183 (Fla. 2d DCA 1984). However, at the restitution hearing defendant effectively objected to the amount of restitution on the basis that he did not have the ability to pay. According to the evidence, he supported four people with the wages he earned picking tomatoes.

We strike the amount of restitution and remand so that the trial court may order restitution in an amount which is reasonably within the defendant’s present or potential future ability to pay. See Medina v. State, 591 So.2d 1085 (Fla. 3d DCA 1991); § 775.089(6), Fla.Stat. (1991). See also Peters v. State, 555 So.2d 450 (Fla. 4th DCA 1990) (condition of probation should not be impossible to perform).

ALTENBERND and BLUE, JJ., concur.

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LEHAN, Acting Chief Judge.

Defendant appeals the order requiring him to pay $123,971.53 restitution upon his conviction for leaving the scene of an automobile accident with injuries. He challenges the propriety of any restitution under the circumstances of this case and also contends the trial court failed to consider his ability to pay $123,971.53. We reverse.

As part of a negotiated plea, defendant agreed to pay restitution, reserving his right to a hearing to determine the amount. Because of his agreement, he has waived any objection to the propriety of restitution. See Ferris v. State, 558 So.2d 179 (Fla. 2d DCA 1990); Pollock v. Bryson, 450 So.2d 1183 (Fla. 2d DCA 1984). However, at the restitution hearing defendant effectively objected to the amount of restitution on the basis that he did not have the ability to pay. According to the evidence, he supported four people with the wages he earned picking tomatoes.

We strike the amount of restitution and remand so that the trial court may order restitution in an amount which is reasonably within the defendant’s present or potential future ability to pay. See Medina v. State, 591 So.2d 1085 (Fla. 3d DCA 1991); § 775.089(6), Fla.Stat. (1991). See also Peters v. State, 555 So.2d 450 (Fla. 4th DCA 1990) (condition of probation should not be impossible to perform).

ALTENBERND and BLUE, JJ., concur.

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600 So. 2d 1255, 1992 Fla. App. LEXIS 6541, 1992 WL 135046, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bautista-v-state-fladistctapp-1992.

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