From Casetext: Smarter Legal Research

Fichera v. State

District Court of Appeal of Florida, First District
Feb 28, 1997
688 So. 2d 453 (Fla. Dist. Ct. App. 1997)

Summary

affirming in part, despite the State's concession of error

Summary of this case from Salonko v. State

Opinion

Case No. 96-2102

Opinion filed February 28, 1997.

An appeal from the Circuit Court for Gulf County. N. Russell Bower, Judge.

Nancy A. Daniels, Public Defender; David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General; Carolyn J. Mosely, Assistant Attorney General; Laura M. Fullerton, Certified Legal Intern, Tallahassee, for Appellee.


Tilden Lee Fichera (Fichera) challenges the trial court's restitution order on two grounds. The State concedes error on both points. We affirm in part, and remand in part.

Notwithstanding the State's concession of error, we find the trial court did not abuse its discretion in the amount of restitution it imposed. There was competent evidence in the record supporting the assessment. We agree, however, that the trial court improperly delegated to Fichera's probation officer the responsibility for creating a schedule of payments consistent with his ability to pay. Briggs v. State, 647 So.2d 182 (Fla. 1st DCA 1994); Bowers v. State, 596 So.2d 480 (Fla. 1st DCA 1992); Smith v. State, 589 So.2d 387 (Fla. 1st DCA 1991). The restitution order must be remanded with directions to strike this language. On remand, if the trial court determines that payment of restitution in installments is appropriate, it must establish the schedule itself. See § 775.089(3), Fla. Stat. (Supp. 1994).

AFFIRMED in part, and REMANDED in part for consistent proceedings.

WEBSTER, LAWRENCE and PADOVANO, JJ., CONCUR.


Summaries of

Fichera v. State

District Court of Appeal of Florida, First District
Feb 28, 1997
688 So. 2d 453 (Fla. Dist. Ct. App. 1997)

affirming in part, despite the State's concession of error

Summary of this case from Salonko v. State

rejecting state's concession that trial court abused its discretion when setting the amount of restitution, because competent evidence supported the trial court's assessment

Summary of this case from Sells v. CSX Transportation, Inc.
Case details for

Fichera v. State

Case Details

Full title:TILDEN LEE FICHERA, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, First District

Date published: Feb 28, 1997

Citations

688 So. 2d 453 (Fla. Dist. Ct. App. 1997)

Citing Cases

Sells v. CSX Transportation, Inc.

The majority attempts to buttress their conclusion in this regard by relying upon counsel's apparent…

Salonko v. State

However, we find the instant case distinguishable from Montgomery, and because this Court does not accept…