Elmore v. State

District Court of Appeal of Florida

Elmore v. State

636 So. 2d 183, 1994 Fla. App. LEXIS 3911, 1994 WL 157548

CourtDistrict Court of Appeal of Florida

DecidedApril 29, 1994

DocketNo. 93-1247

StatusPublished

This text of 636 So. 2d 183 (Elmore 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

Elmore v. State, 636 So. 2d 183, 1994 Fla. App. LEXIS 3911, 1994 WL 157548 (Fla. Ct. App. 1994).

Pincite

Opinion

W. SHARP, Judge.

Elmore appeals from an order of the trial court withholding adjudication of guilt for aggravated assault and placing him on probation with a number of special conditions. He argues one condition — payment of $1,665.05 to the Flagler Hospital as restitution — should be stricken because it was not orally announced at the sentencing hearing, although it appears in the written order of probation, rendered after the hearing. We remand for the purpose of addressing this discrepancy.

Elmore was originally charged with the first degree murder of Donna Washington. A list of persons and entities to whom restitution should be paid (including $1,614.85 to the hospital) was in the presentence investigation report. Elmore originally objected to any restitution.

Elmore’s plea to the lesser offense and his agreement to pay restitution were apparently worked out off the record. At the sentencing hearing, the judge read from the P.S.I. the list of victims and losses to be repaid.¹ He only omitted reading the hospital from this list. Elmore did not object to restitution.

It appears likely from this scenario that the judge may have inadvertently omitted Flagler Hospital from the list of victims read at the hearing, and that it was indeed part of the informal understanding agreed to by the parties. In such cases, the trial judge’s failure to orally pronounce this condition of probation may be viewed as a “discrepancy” between the oral and written judgment. See Cleveland v. State, 617 So.2d 1166 (Fla. 5th DCA 1993).

We therefore remand this cause to the trial court to resolve this discrepancy. If the omission of the Flagler Hospital’s restitution was a mistake, and Elmore was aware it should have been included with the others, the trial court shall make such a finding and reimpose the list as written. If not, the condition should be stricken. See Walls v. State, 609 So.2d 83 (Fla. 1st DCA 1992); Boone v. State, 608 So.2d 564 (Fla. 1st DCA 1992).

REMANDED for further proceedings.

DIAMANTIS and THOMPSON, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

W. SHARP, Judge.

Elmore appeals from an order of the trial court withholding adjudication of guilt for aggravated assault and placing him on probation with a number of special conditions. He argues one condition — payment of $1,665.05 to the Flagler Hospital as restitution — should be stricken because it was not orally announced at the sentencing hearing, although it appears in the written order of probation, rendered after the hearing. We remand for the purpose of addressing this discrepancy.

Elmore was originally charged with the first degree murder of Donna Washington. A list of persons and entities to whom restitution should be paid (including $1,614.85 to the hospital) was in the presentence investigation report. Elmore originally objected to any restitution.

Elmore’s plea to the lesser offense and his agreement to pay restitution were apparently worked out off the record. At the sentencing hearing, the judge read from the P.S.I. the list of victims and losses to be repaid.¹ He only omitted reading the hospital from this list. Elmore did not object to restitution.

It appears likely from this scenario that the judge may have inadvertently omitted Flagler Hospital from the list of victims read at the hearing, and that it was indeed part of the informal understanding agreed to by the parties. In such cases, the trial judge’s failure to orally pronounce this condition of probation may be viewed as a “discrepancy” between the oral and written judgment. See Cleveland v. State, 617 So.2d 1166 (Fla. 5th DCA 1993).

We therefore remand this cause to the trial court to resolve this discrepancy. If the omission of the Flagler Hospital’s restitution was a mistake, and Elmore was aware it should have been included with the others, the trial court shall make such a finding and reimpose the list as written. If not, the condition should be stricken. See Walls v. State, 609 So.2d 83 (Fla. 1st DCA 1992); Boone v. State, 608 So.2d 564 (Fla. 1st DCA 1992).

REMANDED for further proceedings.

DIAMANTIS and THOMPSON, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

636 So. 2d 183, 1994 Fla. App. LEXIS 3911, 1994 WL 157548, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elmore-v-state-fladistctapp-1994.

Opinion

W. SHARP, Judge.

Related

Cite This Page — Counsel Stack