L.W. appeals the trial court’s restitution order, which required L.W. to pay a total of $321.61 in $30 monthly installments, on the grounds that he was not present at the restitution hearing and the trial court did not make specific factual findings that L.W. could reasonably be expected to pay the amount of restitution ordered. L.W.’s attendance at the restitution hearing was waived. We therefore find no .legal error on that point. However, we reverse and remand for the trial court to make factual findings as to whether L.W. can reasonably be expected to • pay. the restitution order.
The trial court adjudicated L.W. delinquent of burglary, petit theft, and resisting arrest without violence on June 18, 2014. The evidence introduced at L.W.’s adjudication hearing established that L.W. had broken a window in the victim’s home during the course of the burglary. The State sought restitution for the damaged window, and the trial court scheduled both the disposition and restitution hearings to take place the following month on July 24, 2014. Although L.W. was present at the July 24, 2014, hearing, the State’s only witness testifying as to the price of the window (Katrina Hudson, an employee of the window replacement company) was unable to attend. The State accordingly moved for a continuance of the restitution hearing on that basis. The trial court rescheduled the
At the beginning of the restitution hearing, L.W.’s counsel objected to the hearing being conducted on that day because L.W. was not present. However, after the trial court read back the transcript where it found that L.W. had waived his right to attend, L.W.’s counsel withdrew the objection. The victim and Ms. Hudson were the only testifying witnesses at the hearing. The victim simply testified that the window had been broken during the course of the burglary, while- Ms. Hudson explained the company’s pricing procedures and testified that the total bill for the window replacement was $321.61. The trial court ordered that L.W. pay $321.61 in restitution in $30 monthly installments pursuant to section 985.437 of the Florida Statutes (2014) because the window had been broken during the course of the burglary and made the restitution a condition of L.W.’s probation. Although L.W.’s counsel suggested that the trial court conduct a hearing on L.W.’s ability to pay the restitution order, the trial court stated that such a hearing would not be necessary unless L.W. failed to make the required payments and a probation violation hearing was conducted.
Shortly after the restitution order was finalized, L.W. filed a motion to correct his sentence under Florida Rule of Juvenile Procedure 8.135(b)(2),
First, we briefly address L.W.’s argument that the restitution hearing should not have been held without his presence. While it is true that a defendant has a constitutional right to be present at all critical stages of the proceedings against him, and a restitution hearing is a critical stage, the defendant does not need to be present if he expressly waives the right to attend or if his waiver is implied by the defendant’s voluntary absence from the proceedings. Baker v. State,
L.W.’s second point of contention, however, does have merit. Subsection 985.437(2) of the Florida Statutes states:
The court may order the child to make restitution in money, through a promissory note cosigned by the child’s parentor guardian, or in kind for any damage or loss caused by the child’s offense in a reasonable amount or manner to be determined by the court. When restitution is ordered by the court, the amount of restitution may not exceed an amount the child and the parent or guardián could reasonably be expected to pay or make.
§ 985.437(2), Fla. Stat. (2014) (emphasis added). The cases discussing and interpreting section 985.437 universally require the trial court to make a factual finding that the child and/or his parent or guardian could reasonably be expected to pay the amount of the loss at the time the restitution is imposed, not merely when the court is subsequently required to enforce the order or determine whether the juvenile violated his probation.
The State argues that this issue was not preserved for appeal and is not fundamental error. We agree that the trial court’s failure to make factual findings would not have risen to the level of fundamental error had the issue not been preserved, see Pilon v. State,
We are therefore compelled to reverse and remand that portion of the probation order for a determination by the trial court as to whether L.W. and/or his parents or legal guardian have the ability to pay the restitution ordered. Although the restitution ordered is de minimis and would be a presumptively reasonable amount, see R.D.S. v. State,
Affirmed in part; reversed and remanded in part.
Notes
. Florida Rule of Juvenile Procedure 8.135 is the juvenile equivalent of Florida Rule of Criminal Procedure 3.800.
. Interestingly, this is precisely the opposite of the restitution process for adults, which requires the trial court to consider the defendant's ability to pay only at the time of enforcement of the restitution order, not at the time the restitution order is imposed. § 775.089(6)(b), Fla. Stat. (2014); Del Valle v. State,