Burrell v. State

District Court of Appeal of Florida

Burrell v. State

626 So. 2d 1065, 1993 Fla. App. LEXIS 11434, 1993 WL 461966

CourtDistrict Court of Appeal of Florida

DecidedNovember 10, 1993

DocketNo. 92-03416

StatusPublished

Cited by1 cases

This text of 626 So. 2d 1065 (Burrell 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

Burrell v. State, 626 So. 2d 1065, 1993 Fla. App. LEXIS 11434, 1993 WL 461966 (Fla. Ct. App. 1993).

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Opinion

PER CURIAM.

This appeal follows our opinion in Burrell v. State, 601 So.2d 628 (Fla. 2d DCA 1992). Appellant had been adjudicated guilty and sentenced for both dealing in stolen property and grand theft. Only one adjudication and sentence is proper when these two charges stem from a single “scheme or course of conduct.” Rife v. State, 446 So.2d 1157 (Fla. 2d DCA 1984); § 812.025, Fla. Stat. (1991).

After remand the trial court vacated the sentence imposed for grand theft, but left standing the conviction. This decision, which is not in compliance with our mandate, appears to have been motivated by a desire to leave intact a provision, included within the prior judgment and sentence, requiring the payment of restitution. As pointed out in the state’s brief, the victim’s entitlement to restitution is not jeopardized by vacating the theft conviction. Under section 775.089(l)(a), Florida Statutes (1991), a sentencing court must award restitution, where applicable, “[i]n addition to any punishment.” Florida Rule of Criminal Procedure 3.986(g) indicates that a separate order, i.e., one distinct from the standardized judgment/sentence forms, may be utilized for this purpose.

[1066]*1066We remand this case with directions to vacate appellant’s conviction for grand theft. Appellant will not be prejudiced by entry of a separate restitution order, and need not be present for that purpose so long as the amounts or terms of payment do not vary from the original provision awarding restitution.

Reversed.

FRANK, C.J., DANAHY and PARKER, JJ., concur.

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PER CURIAM.

This appeal follows our opinion in Burrell v. State, 601 So.2d 628 (Fla. 2d DCA 1992). Appellant had been adjudicated guilty and sentenced for both dealing in stolen property and grand theft. Only one adjudication and sentence is proper when these two charges stem from a single “scheme or course of conduct.” Rife v. State, 446 So.2d 1157 (Fla. 2d DCA 1984); § 812.025, Fla. Stat. (1991).

After remand the trial court vacated the sentence imposed for grand theft, but left standing the conviction. This decision, which is not in compliance with our mandate, appears to have been motivated by a desire to leave intact a provision, included within the prior judgment and sentence, requiring the payment of restitution. As pointed out in the state’s brief, the victim’s entitlement to restitution is not jeopardized by vacating the theft conviction. Under section 775.089(l)(a), Florida Statutes (1991), a sentencing court must award restitution, where applicable, “[i]n addition to any punishment.” Florida Rule of Criminal Procedure 3.986(g) indicates that a separate order, i.e., one distinct from the standardized judgment/sentence forms, may be utilized for this purpose.

[1066]*1066We remand this case with directions to vacate appellant’s conviction for grand theft. Appellant will not be prejudiced by entry of a separate restitution order, and need not be present for that purpose so long as the amounts or terms of payment do not vary from the original provision awarding restitution.

Reversed.

FRANK, C.J., DANAHY and PARKER, JJ., concur.

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626 So. 2d 1065, 1993 Fla. App. LEXIS 11434, 1993 WL 461966, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burrell-v-state-fladistctapp-1993.

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