Category Archives: Sentencing

How Do Trial Courts Still Get Restitution Wrong?

By: Adam L. Bantner, II

Board Certified Criminal Trial Attorney

Somehow, Florida courts continue to get restitution wrong. My guess is that this stems from the fact that judges will typically rotate amongst the various benches, i.e, criminal, civil, family, probate, traffic, etc., and that various legal principles will bleed into an area of the law where it simply does not belong.

For example, in courts of equity, the judge has the power to do what it takes to make a situation fair. Of course, they are constrained by various statutes and case law, but they typically will have a lot of discretion to make a situation “right.” However, with regards to any amount of restitution owed to a victim, the law is pretty clear.

The Restitution Statute, Fla. Stat. 775.089

Fla. Stat. 775.089 states: “…the defendant to make restitution to the victim for: 1. Damage or loss caused directly or indirectly by the defendant’s offense; and 2. Damage or loss related to the defendant’s criminal episode.

This language has been interpreted as, typically, setting fair market value as the appropriate measure of restitution. State v. Hawthorne, 573 So. 2d 330, 333 (Fla. 1991). Additionally, restitution is not intended to provide a victim with a windfall. Rodriguez v. State, 956 So. 2d 1226, 1232 (Fla. 4th DCA 2007) Therefore, restitution may not exceed the damage caused by the defendant’s criminal conduct.

Restitution Should Not be Used to Pay Off a Loan Balance

With the aforementioned law of criminal restitution mentioned above, the heading for this section should be self-explanatory. However, a Duval County trial judge held that a criminal defendant was liable to the victim for the entire balance of her vehicle loan and not just the fair market value of her vehicle. As I indicated in the opening, I think the judge did what she believed was fair and, unfortunately, failed to follow the law. After all, who wants to continue making payments on a totaled vehicle? Fortunately, though, the First DCA corrected that error in Tolbert v. State, No. 1D17-3240 (Fla. 1st DCA 2019).

Tolbert was convicted of stealing his ex-girlfriend’s vehicle. Prior to his arrest, he totaled the vehicle fleeing from law enforcement. The victim bought the vehicle for $14,000 and still owed over $14,000 at the time of the loss. Insurance paid off approximately $3,000 of the balance. Testimony at the restitution hearing set the value of the vehicle $6,100. However, the trial court set the restitution amount at almost $12,000 (the difference between loan balance and insurance payout).

This “solution” would have gave the victim a windfall that is clearly not contemplated by the statute. As the concurrence so ably put it, “And if the victim lost a $6,000 car and got $6,000 in restitution, she could acquire another $6,000 car. That would leave the victim just where she began: with a $6,000 car and a $12,000 loan. In other words, the restitution award would cover her “damage or loss.” If, on the other hand, the victim got the value of her car plus the unsecured portion of her loan (roughly $12,000) and bought a $6,000 car, she would come out $6,000 ahead.”

The law in this area is fairly well-settled and I’m amazed that trial judges still get this wrong. Fortunately, Tolbert’s able attorneys and the First DCA were able to fix this mistake.

Tampa Restitution Attorney

If you find yourself dealing with restitution as part of your criminal case, give The Bantner Firm a call today! We offer free consultations with board certified criminal trial law attorney Adam Bantner. 813.397.3965

We pray that you never need us, but we’re here for you when you do!

Can I Get a Withhold of Adjudication?

If, for whatever reason, you are unsuccessful in getting your charges dismissed either before or after trial, the next best thing is to receive a withhold of adjudication on your conviction. A “withhold” is one of those quirks of the law that both is and is not a conviction. A “withhold” allows a person to deny having been convicted and leaves open the possibility of sealing and expunging the arrest. Nonetheless, it’ll be on your record.

How do we get a withhold?

The most common method to get one is through negotiations with the Office of the State Attorney. Generally speaking, first-time offenders who have committed relatively minor crimes are eligible with some exceptions, most notably DUIs.

Persons convicted of capital, life, punishable by life, or first-degree felonies will not be eligible to receive a withhold of adjudication. A person convicted of a second-degree felony is only eligible if requested by the State Attorney or the Court makes certain findings. A person convicted of a third-degree felony will be eligible unless they’ve received two prior withholds. A person convicted of a third-degree felony crime of domestic violence or who has received one prior withhold may be eligible if requested by the State Attorney or the Court makes certain findings. Fla. Stat. 775.08435.

Can it be taken away from me?

The short answer is “yes.” In order to receive a withhold of adjudication, Florida law requires that you be placed on probation. There’s no specified length of probation but, generally speaking, you must earn your withhold. If you violate probation, the Court can, and most likely will, adjudicate you guilty of the crime.

If the court screwed up and unlawfully gave you a withhold when it wasn’t supposed to give such a sentence, it will not be taken away from you if the State failed to object at sentencing. The courts have held that such error is not “fundamental” and, as such, will not overturn such a sentence unless the State objected contemporaneously at the sentencing. State v. Rivera, 43 Fla. L. Weekly D1537c (Fla. 5th DCA 2018).


Correction of Jail Credit After Sentencing

By: Adam L. Bantner, II, The Bantner Firm, Candidate for Hillsborough County Court Judge, Group 2

Credit for time served prior to sentencing is usually a straight forward matter; it equals the number of days spent in custody from the date of arrest to the date of sentencing. However, the clerk, the court, and counsel can sometimes get it wrong. This is especially true when dealing with violations of probation when a defendant has spent time in multiple jurisdictions on multiple charges. This article attempts to simplify Rule. 3.801, Florida Rules of Criminal Procedure, to clarify how counsel can correct the amount of time served when it has been improperly calculated.

The Rule has some basic requirements:

  1. It must be filed within one year of the date the sentence became final.
  2. It shall be under oath.
  3. It shall include a brief statement of the facts, including the dates and locations of incarcerations and the amount of time already credited.
  4. Whether any other criminal charges were pending during any period of incarceration and, if so, the location, case number and resolution of those charges.
  5. Whether any credit was waived and, if so, the amount waived.
  6. It must be signed by the defendant certifying that the defendant has read the motion or that it has been read to the defendant and that the defendant understands its content; the motion is filed in good faith and with a reasonable belief that it is timely filed, has potential merit, and does not duplicate previous motions that have been disposed of by the court; and, the facts contained in the motion are true and correct.
  7. The defendant must further certify that the defendant can understand English or, if the defendant cannot understand English, that the defendant has had the motion translated completely into a language that the defendant understands. The motion shall contain the name and address of the person who translated the motion and that person shall certify that he or she provided an accurate and complete translation to the defendant.

The most difficult and time consuming task is finding the defendant’s incarceration history and determining whether he or she should receive credit for the time served in that particular jurisdiction. For example, a defendant may be arrested in Pasco County for driving on a suspended license while he or she was serving a probationary sentencing in Hillsborough County. If the defendant did not have a Hillsborough “hold” placed on him for the violation or served with the violation warrant while in custody, he may not be entitled to credit for the time served in Pasco towards his subsequent sentence in Hillsborough. However, if the jail records indicate Hillsborough placed the hold, then counsel must look at the Pasco disposition to see whether anything in the sentencing in that case would cause the defendant to not be able to use the credit in Hillsborough.

Once all the research is concluded, it’s a good practice to attach printouts from the jail and clerk to substantiate the credit claimed in the motion.

Once a completed motion is signed, certified by the client, and filed with the court, it proceeds in same manner as a Rule 3.850 motion, i.e., the court will review the motion for sufficiency and, if sufficient, forward to the State Attorney for response. Depending on the response, it will be granted, denied summarily, or set for a hearing. If the motion was originally deemed insufficient by the court for whatever reason, counsel will have 60 days to file an amended motion.