Wilson v. State

452 So. 2d 84

Opinion

452 So.2d 84 (1984)

Pamela WILSON, Appellant,
v.
STATE of Florida, Appellee.

No. AU-326.

District Court of Appeal of Florida, First District.

May 23, 1984. Rehearing Denied July 2, 1984.

David A. Davis, Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen. and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

Wilson appeals a final order of probation ordering payment of $930.00 as restitution for the rental value of a television set. Wilson entered into a rental agreement to pay $930.00 in regular rental payments to Curtis Mathes Home Entertaining Center. She made nine regular payments, then moved, leaving no forwarding address, taking the television set, and making no further payments. Following a plea of nolo contendere to the charge of grand theft, Wilson was placed on probation and ordered to pay $930.00 restitution.

Wilson argues that the $930.00 restitution improperly exceeds the damage caused, citing Fresneda v. State, 347 So.2d 1021 (Fla. 1977). The State concedes that the payments Wilson made should be considered in determining the amount of restitution.

"[A] condition of probation requiring a probationer to pay money to, and for the benefit of, the victim of his crime cannot require payment in excess of damage the criminal conduct caused the victim." Fresneda, at 1022. Wilson's theft of the rented television caused Curtis Mathes to lose the rental receipts it would have received under the rental agreement. Restitution for these lost receipts would be a permissible condition of probation within the scope of Fresneda. However, the restitution or condition of probation cannot exceed the damage caused, therefore, the $930.00 should be reduced by the amount of the regular payments made by Wilson.

Accordingly, the trial court's order is affirmed insofar as it imposes the condition of payment of damages caused. The ordered amount of $930.00 is reversed and this cause is remanded for redetermination of the amount of payment in light of Fresneda.

BOOTH, SHIVERS and JOANOS, JJ., concur.