L.W. v. State, 163 So. 3d 598

Juvenile L.W. adjudicated delinquent for burglary, petit theft, and resisting arrest; court found he broke a victim’s window during the burglary.
State sought restitution for the window replacement totaling $321.61; restitution and disposition hearings set for July 24, 2014.
At the continued restitution hearing L.W. was not present; the trial court found on the record that L.W. had waived his right to attend and proceeded after defense counsel withdrew an objection.
Victim and a window-company employee testified; the company witness established the $321.61 cost. Court ordered restitution of $321.61, payable in $30 monthly installments as a condition of probation.
L.W. moved postconviction under Fla. R. Juv. P. 8.135(b)(2) arguing (1) the hearing was held without him and (2) the court failed to make factual findings that he or his parents could reasonably be expected to pay the restitution. Trial court denied the motion; L.W. appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether holding the restitution hearing without L.W. present was improper	L.W.: restitution hearing is a critical stage and he was not present, so order is illegal	State: L.W. waived his right or was voluntarily absent after being informed of the right to attend	Court: No error — trial court found an express waiver and L.W. was voluntarily absent; counsel withdrew objection
Whether trial court must make factual findings that child/parent could reasonably be expected to pay at time restitution imposed	L.W.: statute requires factual finding at imposition that child/parent can reasonably be expected to pay; trial court failed to make those findings	State: issue not preserved and not fundamental error; ability-to-pay can be addressed later at enforcement or violation	Court: Reversed and remanded on this point — trial court must make factual findings regarding reasonable ability to pay when imposing restitution (issue preserved by objection and motion)
Whether lack of findings was harmless or forfeited	State: error would be harmless and could be corrected at enforcement or by modification	L.W.: preserved via on-record objection and motion under Rule 8.135(b)(2)	Court: Although likely de minimis, failure to make required findings over objection was reversible legal error; remand required

Baker v. State, 979 So.2d 453 (Fla. 2d DCA 2008) (defendant may waive right to be present at restitution hearing)
S.S. v. State, 122 So.3d 499 (Fla. 4th DCA 2013) (trial court must make ability-to-pay findings when imposing juvenile restitution)
E.J. v. State, 1 So.3d 251 (Fla. 3d DCA 2008) (same)
I.M. v. State, 955 So.2d 1163 (Fla. 1st DCA 2007) (same)
M.W.G. v. State, 945 So.2d 597 (Fla. 2d DCA 2006) (same)
Pilon v. State, 20 So.3d 992 (Fla. 4th DCA 2009) (no fundamental error for certain restitution evidentiary mistakes)
Edwards v. State, 892 So.2d 1192 (Fla. 5th DCA 2005) (ability to pay implicated before finding probation violation)
R.D.S. v. State, 844 So.2d 720 (Fla. 2d DCA 2003) (small monthly restitution amounts can be presumptively reasonable)
J.M.H. v. State, 589 So.2d 394 (Fla. 1st DCA 1991) ($25 monthly restitution can conform to reasonable-ability requirement)

Affirmed in part; reversed and remanded in part.