Donohue v. State

District Court of Appeal of Florida

Donohue v. State

547 So. 2d 1047, 14 Fla. L. Weekly 1991, 1989 Fla. App. LEXIS 4724, 1989 WL 97496

CourtDistrict Court of Appeal of Florida

DecidedAugust 24, 1989

DocketNo. 88-1069

StatusPublished

Cited by1 cases

This text of 547 So. 2d 1047 (Donohue 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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Donohue v. State, 547 So. 2d 1047, 14 Fla. L. Weekly 1991, 1989 Fla. App. LEXIS 4724, 1989 WL 97496 (Fla. Ct. App. 1989).

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Opinion

SHARP, Judge.

Donohue appeals from a judgment and sentence after a jury found him guilty of second degree grand theft¹ in connection with the embezzlement of funds from the Best Western Deltona Inn. We affirm the judgment and sentence, except for those portions of the sentence which impose costs and require a probation officer to determine a repayment schedule of $14,400 in restitution ordered by the court.

Both sides agree that costs were improperly imposed without prior notice to Dono-hue, and that this portion of the sentence should be quashed. Wood v. State, 544 So.2d 1004 (Fla.1989); Mays v. State, 519 So.2d 618 (Fla.1988).

The sentence provides that restitution of $14,400 is to be paid “at a rate to be determined by your Probation Officer.” A probation officer may monitor a probationer’s economic circumstances during the probationary period, notify the court when a probationer appears to have the ability to commence restitution repayment, and furnish the court with a recommended repayment schedule. However, the determination of the probationer’s ability to pay is a nondelegable judicial responsibility.² Ballance v. State, 447 So.2d 974 (Fla. 1st DCA 1984); Fletcher v. State, 405 So.2d 748 (Fla. 2d DCA 1981).

Thus, we quash the imposition of costs and that portion of the sentence directing Donohue’s probation officer to set a restitution repayment schedule, and we remand the sentence to the trial court to make appropriate corrections in accordance with this opinion.

AFFIRMED in part; QUASHED in part; and REMANDED with directions.

COBB and COWART, JJ., concur.

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SHARP, Judge.

Donohue appeals from a judgment and sentence after a jury found him guilty of second degree grand theft¹ in connection with the embezzlement of funds from the Best Western Deltona Inn. We affirm the judgment and sentence, except for those portions of the sentence which impose costs and require a probation officer to determine a repayment schedule of $14,400 in restitution ordered by the court.

Both sides agree that costs were improperly imposed without prior notice to Dono-hue, and that this portion of the sentence should be quashed. Wood v. State, 544 So.2d 1004 (Fla.1989); Mays v. State, 519 So.2d 618 (Fla.1988).

The sentence provides that restitution of $14,400 is to be paid “at a rate to be determined by your Probation Officer.” A probation officer may monitor a probationer’s economic circumstances during the probationary period, notify the court when a probationer appears to have the ability to commence restitution repayment, and furnish the court with a recommended repayment schedule. However, the determination of the probationer’s ability to pay is a nondelegable judicial responsibility.² Ballance v. State, 447 So.2d 974 (Fla. 1st DCA 1984); Fletcher v. State, 405 So.2d 748 (Fla. 2d DCA 1981).

Thus, we quash the imposition of costs and that portion of the sentence directing Donohue’s probation officer to set a restitution repayment schedule, and we remand the sentence to the trial court to make appropriate corrections in accordance with this opinion.

AFFIRMED in part; QUASHED in part; and REMANDED with directions.

COBB and COWART, JJ., concur.

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Bluebook (online)

547 So. 2d 1047, 14 Fla. L. Weekly 1991, 1989 Fla. App. LEXIS 4724, 1989 WL 97496, Counsel Stack Legal Research, https://law.counselstack.com/opinion/donohue-v-state-fladistctapp-1989.

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