Brinson v. State

District Court of Appeal of Florida

Brinson v. State

606 So. 2d 476, 1992 Fla. App. LEXIS 10685, 1992 WL 281868

CourtDistrict Court of Appeal of Florida

DecidedOctober 16, 1992

DocketNo. 91-2817

StatusPublished

Cited by1 cases

This text of 606 So. 2d 476 (Brinson 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.

Bluebook

Brinson v. State, 606 So. 2d 476, 1992 Fla. App. LEXIS 10685, 1992 WL 281868 (Fla. Ct. App. 1992).

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Opinion

PER CURIAM.

Brinson appeals from his conviction and sentence for second degree murder and an order of restitution entered on the day of sentencing, requiring him to pay $1,570 as costs of the victim’s funeral, to the victim’s family. We affirm his conviction as having been obtained on the basis of sufficient evidence. However, the order of restitution cannot be sustained because the record fails to show that either Brinson or his attorney was given notice and an opportunity to be heard on the restitution order. See Anderson v. State, 556 So.2d 527 (Fla. 5th DCA 1990); Fitzpatrick v. State, 553 So.2d 396 (Fla. 5th DCA 1989); Singletary v. State, 530 So.2d 460 (Fla. 5th DCA 1988); In re D.J.P., 503 So.2d 986 (Fla. 5th DCA 1987).

Although the order of restitution recites it was entered pursuant to a motion made by the state, the motion is not in the record. Nor is any notice to Brinson and his attorney in the record. Further, the order recites it was entered after a hearing held the same day as the sentencing. However, there is no transcript of such a hearing in the record, and a review of the sentencing transcript reveals no mention of restitution was made there.

Accordingly, we quash the order of restitution and remand this cause for further proceedings, which may include notice and a subsequent hearing on restitution.

[477]*477AFFIRMED; order of restitution QUASHED; REMANDED.

SHARP, W., HARRIS and DIAMANTES, JJ., concur.

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PER CURIAM.

Brinson appeals from his conviction and sentence for second degree murder and an order of restitution entered on the day of sentencing, requiring him to pay $1,570 as costs of the victim’s funeral, to the victim’s family. We affirm his conviction as having been obtained on the basis of sufficient evidence. However, the order of restitution cannot be sustained because the record fails to show that either Brinson or his attorney was given notice and an opportunity to be heard on the restitution order. See Anderson v. State, 556 So.2d 527 (Fla. 5th DCA 1990); Fitzpatrick v. State, 553 So.2d 396 (Fla. 5th DCA 1989); Singletary v. State, 530 So.2d 460 (Fla. 5th DCA 1988); In re D.J.P., 503 So.2d 986 (Fla. 5th DCA 1987).

Although the order of restitution recites it was entered pursuant to a motion made by the state, the motion is not in the record. Nor is any notice to Brinson and his attorney in the record. Further, the order recites it was entered after a hearing held the same day as the sentencing. However, there is no transcript of such a hearing in the record, and a review of the sentencing transcript reveals no mention of restitution was made there.

Accordingly, we quash the order of restitution and remand this cause for further proceedings, which may include notice and a subsequent hearing on restitution.

[477]*477AFFIRMED; order of restitution QUASHED; REMANDED.

SHARP, W., HARRIS and DIAMANTES, JJ., concur.

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606 So. 2d 476, 1992 Fla. App. LEXIS 10685, 1992 WL 281868, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brinson-v-state-fladistctapp-1992.

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