JAB v. State

25 So. 3d 554, 2010 WL 26540
Procedural entryThis page is a short order in JAB v. State. Read the opinion of the Court — 35 Fla. L. Weekly Supp. 5
Supreme Court of Florida·Decided January 7, 2010·No. SC08-2326·Published

Opinion

25 So.3d 554 (2010)

J.A.B., Petitioner,
v.
STATE of Florida, Respondent.

No. SC08-2326.

Supreme Court of Florida.

January 7, 2010.

*555 James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, Florida, Robert J. Krauss, Bureau Chief, and Diana K. Bock, Assistant Attorneys General, Tampa, FL, for Respondent.

PARIENTE, J.

This case is before the Court for review of the en banc decision of the Second District Court of Appeal in J.A.B. v. State, 993 So.2d 1150 (Fla. 2d DCA 2008), addressing the issue of juvenile restitution. The Second District certified conflict with the decision of the First District Court of Appeal in J.A.M. v. State, 601 So.2d 278 (Fla. 1st DCA 1992), on the issue of whether setting the commencement date for restitution must be conditioned on the juvenile obtaining employment. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

In receding from several of its own prior decisions, the Second District explained:

[W]e now hold that the trial court may set the restitution amount and payments in a reasonable amount based upon evidence regarding the earnings the juvenile may reasonably be expected to make and may set a commencement date for the payments so long as the court provides a reasonable amount of time for the juvenile to obtain employment.

J.A.B., 993 So.2d at 1151. Because this holding comports with the language and stated purpose of the applicable juvenile restitution statutes, we approve the opinion of the Second District in J.A.B. and disapprove J.A.M. to the extent that the First District has required that setting a commencement date for restitution be conditioned on the juvenile obtaining employment.

FACTS AND BACKGROUND

J.A.B. was adjudicated guilty of battery and placed on juvenile probation for one year. Id. The trial court reserved jurisdiction to determine restitution and held evidentiary hearings during which the victim testified that she had incurred hospital bills and other losses as a result of the battery. Id. Although J.A.B. was seventeen at the time she committed the battery, she was eighteen by the time of the evidentiary hearing. See id. J.A.B. testified she was unemployed and pregnant, she attended high school, and hoped to proceed to a two-year trade school. Id. Further, as set forth in the Second District's opinion:

She planned to take six weeks off from her schooling after the baby was born. She had never held a job before, although she had applied unsuccessfully at three companies when she was approximately five months pregnant. She had no disability or health conditions that would prevent her from working once she had the baby. The court questioned the parties regarding the current minimum wage. The State responded that the federal minimum wage was $5.15 per *556 hour, and the state minimum wage was $6.67.
J.A.B. was living with her expected baby's grandmother (apparently the paternal grandmother) but received no support from the expected baby's father. She was receiving government assistance in the form of $180 per month in cash assistance plus food stamps. She also had a cell phone with a bill of approximately $60 per month that was paid by her mother or her uncle.
Based upon this evidence, the trial court awarded restitution in the amount of $1479.09. Given that J.A.B.'s baby was due within two months, the court deferred any payment of restitution until July 1, 2007, approximately six weeks after J.A.B.'s due date. The court required J.A.B. to then pay restitution at the rate of $50 per month, reasoning that this amount could be paid given the resources available to J.A.B. even if J.A.B. worked only part time at minimum wage.

Id. at 1151-52 (footnote omitted). J.A.B. appealed the restitution order, not challenging the amount of restitution, but instead arguing that the trial court abused its discretion in setting the payment schedule because she could not afford the payments. Id. at 1152. The Second District disagreed. Id.

Taking into consideration the language of the juvenile restitution statute, the policies underlying the statute, and the wide discretion generally afforded to trial courts in awarding restitution, the Second District concluded that trial courts should be permitted to set a restitution payment schedule, even where the juvenile is unemployed. Id. at 1154. In reaching this conclusion, the Second District recognized that although a court can order a delinquent juvenile to pay restitution without a showing of present ability to pay, "the court must determine what the child may reasonably be expected to earn upon finding suitable employment and must base the restitution amount on those expected earnings." Id. at 1152; see also § 985.231(1)(a)(1)(a), Fla. Stat. (2005). Further, the Second District determined that there is nothing in section 985.231 that requires a trial court to condition the setting of a restitution payment schedule on the juvenile obtaining employment. J.A.B., 993 So.2d at 1153. The Second District also noted that an order requiring restitution only after a juvenile finds employment places the onus on the State to continually pursue a child who has not paid. Id. at 1154. The question of inability to pay despite reasonable efforts to do so would be an issue in any subsequent enforcement proceedings. Id. at 1151, 1154.

Finally, the Second District took note of the evidence supporting the trial court's restitution order, including J.A.B.'s age, the fact that J.A.B. did not suffer from any disability, her intent to return to school six weeks after having her child, her lack of significant living expenses, her receipt of government assistance, and her monthly cell phone bill, which was paid by a family member, in excess of the amount of restitution payments. Id. Based on this evidence, the district court concluded that the trial court did not abuse its discretion in entering its restitution order. Id.

In J.A.M., the conflict case, the juvenile appealed a condition of his community control requiring him to make restitution in the amount of $3800 to the victim at the rate of $200 per month commencing on a date certain. 601 So.2d at 278. On appeal, he argued that the trial court erred in failing to determine that he had the present ability to pay the ordered restitution at the amount required. Id. The First District noted that a trial court may order *557 an unemployed or incarcerated child to pay restitution without a showing of present ability to pay and in doing so, "must only determine what the defendant may reasonably be expected to earn upon finding suitable employment and base the amount of restitution on those earnings." Id. However, the First District concluded that even though the amount of restitution imposed did not appear to exceed the amount the juvenile could reasonably be expected to pay or make, the trial court erred in setting a date certain for commencement of the payment. Id. at 278-79. The case was remanded for the trial court to strike the date certain and substitute language providing that the payments were to commence upon the juvenile's obtaining employment, which he was required to make all reasonable efforts to obtain. Id. at 279.

ANALYSIS

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