Opinion
Nos. 5D01-1642, 5D01-3481.
July 26, 2002.
Appeal from the Circuit Court for Citrus County, Barbara Gurrola, Judge.
James B. Gibson, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant/Cross-Appellee.
Robert A. Butterworth, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee/Cross-Appellant.
We affirm McElrath's convictions. However, we vacate the restitution order entered by the trial court because the trial court lacked jurisdiction to order restitution while McElrath's underlying conviction was pending on appeal. Torres v. State, 812 So.2d 610 (Fla. 1st DCA 2002).
Although we vacate the restitution order because the trial court lacked jurisdiction, the trial court's determination regarding restitution was substantively correct. Section 775.089(1)(a), Florida Statutes (2001), authorizes the court to order restitution to a crime victim for damages or loss caused directly or indirectly by a defendant's offense or related to the defendant's criminal episode. The trial court refused to award restitution on one count of DUI resulting in serious bodily injury because McEIrath was acquitted of that charge. A defendant cannot be ordered to pay restitution for damages arising out of crimes of which he was acquitted. See Henninger v. State, 667 So.2d 488, 489 (Fla. 1st DCA 1996).
CONVICTIONS AFFIRMED; RESTITUTION ORDER VACATED; CASE REMANDED.
SHARP, W., PLEUS and ORFINGER, R.B., JJ., concur.