Kleintank v. State

District Court of Appeal of Florida

Kleintank v. State

178 So. 3d 15, 2015 Fla. App. LEXIS 14654, 2015 WL 5737060

CourtDistrict Court of Appeal of Florida

DecidedOctober 2, 2015

DocketNo. 5D14-2221

StatusPublished

Cited by6 cases

This text of 178 So. 3d 15 (Kleintank 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

Kleintank v. State, 178 So. 3d 15, 2015 Fla. App. LEXIS 14654, 2015 WL 5737060 (Fla. Ct. App. 2015).

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Opinion

ORFINGER, J.

Jacob C. Kleintank appeals his sentence following no contest pleas to burglary of a structure with a battery, attempted robbery With a deadly weapon, and two counts of aggravated battery with a deadly weapon. We affirm without comment, except as to two matters. As a condition of pro-, bation following Kleintank’s release from prison, the trial court required Kleintank to pay the cost of his incarceration. The State properly concedes that pursuant to section 960.292, Florida Statutes (2014), the proper remedy is a civil restitution lien. On remand, the trial court shall strike this as a condition of probation, but may enter a civil restitution .lien as authorized by. statute.- See Harrin v. State, 157 So.3d 845, 346 n. 1 (Fla. 5th DCA 2015). The State also concedes that the trial court erred by entering a restitution order when it did not have jurisdiction to do so. Once a notice of appeal has been filed, the trial court lacks jurisdiction to enter a restitution order. See Farley v. State, 55 So.3d 721, 721-22 (Fla. 5th DCA 2011). Accordingly, we strike the restitution order. On remand,' the trial court may conduct a restitution hearing with Kleintank present. See Williams v. State, 76 So.3d 410 (Fla. 1st DCA 2012) (holding defendant has constitutional right to be present at restitution hearing unless defendant knowingly, intelligently, and voluntarily waives that right).

AFFIRMED in part; REVERSED in part; and REMANDED.

PALMER, J., and TURNER, T.W., Associate Judge, concur.

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ORFINGER, J.

Jacob C. Kleintank appeals his sentence following no contest pleas to burglary of a structure with a battery, attempted robbery With a deadly weapon, and two counts of aggravated battery with a deadly weapon. We affirm without comment, except as to two matters. As a condition of pro-, bation following Kleintank’s release from prison, the trial court required Kleintank to pay the cost of his incarceration. The State properly concedes that pursuant to section 960.292, Florida Statutes (2014), the proper remedy is a civil restitution lien. On remand, the trial court shall strike this as a condition of probation, but may enter a civil restitution .lien as authorized by. statute.- See Harrin v. State, 157 So.3d 845, 346 n. 1 (Fla. 5th DCA 2015). The State also concedes that the trial court erred by entering a restitution order when it did not have jurisdiction to do so. Once a notice of appeal has been filed, the trial court lacks jurisdiction to enter a restitution order. See Farley v. State, 55 So.3d 721, 721-22 (Fla. 5th DCA 2011). Accordingly, we strike the restitution order. On remand,' the trial court may conduct a restitution hearing with Kleintank present. See Williams v. State, 76 So.3d 410 (Fla. 1st DCA 2012) (holding defendant has constitutional right to be present at restitution hearing unless defendant knowingly, intelligently, and voluntarily waives that right).

AFFIRMED in part; REVERSED in part; and REMANDED.

PALMER, J., and TURNER, T.W., Associate Judge, concur.

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Bluebook (online)

178 So. 3d 15, 2015 Fla. App. LEXIS 14654, 2015 WL 5737060, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kleintank-v-state-fladistctapp-2015.

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