No. 91-2208 | Fla. Dist. Ct. App. | Mar 18, 1992
Rehearing
ON PETITION FOR REHEARING
Appellant has filed a petition for rehearing which takes the court to task, in a somewhat strident fashion, for alleged misstatements of fact and of the record. We have carefully considered the various assertions in said petition and concede that our opinion was in error regarding the initial appeal in this ease when we stated that “Savory appealed solely from the departure sentence.” What we should have said was that Savory had presented six points on appeal, none of which had merit except one having to do with the sentence.
We adhere to our opinion relative to the propriety of the permissive sentence of 7 to 22 years. While the printed form used by the trial court stated only the recommended range and did not include the permitted range, there is no question that the
With regard to the imposition of restitution two years after the original sentence, the court simply disagreed with appellate counsel and held the trial court imposed restitution at sentencing, but withheld jurisdiction to determine the amount thereof to a later date. We believe the documentation supports that conclusion.
Accordingly, we grant rehearing. The first sentence in the second paragraph on page one is deleted and, in its place and stead, the following sentence is substituted: [Editor’s Note: The sentence has been substituted for the publication of this opinion]
In all other respects the petition for rehearing is denied.
GARRETT, J., and OWEN, WILLIAM C., Jr., Senior Judge, concur.
Lead Opinion
Appellant, Edward Savory, was convicted of second-degree murder in June, 1989. Based upon his scoresheet, the recommended range is a sentence from 12 to 17 years. The permitted range is 7 to 22 years. The trial court sentenced him to 25 years, but failed to furnish written departure grounds. In addition, the trial court imposed restitution to the victim's family in an amount to be determined at a later date and reserved jurisdiction therefor.
Savory appealed, presenting six points, none of which had merit except one pertaining to the sentence imposed by the trial court. This court reversed for failure to set forth written grounds. 576 So. 2d 389" court="Fla. Dist. Ct. App." date_filed="1991-03-13" href="https://app.midpage.ai/document/russell-v-state-1653291?utm_source=webapp" opinion_id="1653291">576 So.2d 389. After remand, appellant was sentenced within the permissive range to 22 years. The court also adjudicated the amount of restitution to be paid at $50,817.
Savory has perfected this appeal based upon two points: 1) it was error to sentence him in excess of the recommended range of 12 to 17 years, and 2) the court erred in ordering restitution two years after the initial sentence.
The thrust of appellant’s argument in support of Point I is that a sentence within the permissive range is not appropriate in this case because the crime predated the sentencing guidelines authorizing a permissive range. Unfortunately for Savory, his contention is invalid because Savory committed the instant crime in September, 1988, and the amended rule became effective July 1, 1988. Furthermore, Savory’s reliance upon Pope v. State, 561 So. 2d 554" court="Fla." date_filed="1990-04-26" href="https://app.midpage.ai/document/pope-v-state-1867332?utm_source=webapp" opinion_id="1867332">561 So.2d 554 (Fla.1990), is also unavailing because it pertains to departure sentences. The subject sentence is not a departure sentence.
Savory’s next argument suggests that the original sentencing in his case did not include the imposition of restitution and that to impose restitution two years “after the fact” is impermissible. Once again, the facts are wrong. The original sentence did impose restitution and the court reserved jurisdiction to determine the amount at a later date. This is permissible. Hatcher v. State, 591 So. 2d 1134" court="Fla. Dist. Ct. App." date_filed="1992-01-08" href="https://app.midpage.ai/document/hatcher-v-state-1148711?utm_source=webapp" opinion_id="1148711">591 So.2d 1134 (Fla. 4th DCA 1992); In the Interest of B.M., 580 So. 2d 896" court="Fla. Dist. Ct. App." date_filed="1991-06-19" href="https://app.midpage.ai/document/in-interest-of-bm-1792043?utm_source=webapp" opinion_id="1792043">580 So.2d 896 (Fla. 4th DCA 1991); Weckerle v. State, 579 So. 2d 742" court="Fla. Dist. Ct. App." date_filed="1991-04-03" href="https://app.midpage.ai/document/weckerle-v-state-1831919?utm_source=webapp" opinion_id="1831919">579 So.2d 742 (Fla. 4th DCA 1991); McCaskill v. State, 520 So. 2d 664" court="Fla. Dist. Ct. App." date_filed="1988-02-24" href="https://app.midpage.ai/document/mccaskill-v-state-1770723?utm_source=webapp" opinion_id="1770723">520 So.2d 664 (Fla. 1st DCA 1988). Savory’s reliance on Jones v. State, 590 So. 2d 1061" court="Fla. Dist. Ct. App." date_filed="1991-12-18" href="https://app.midpage.ai/document/jones-v-state-7597088?utm_source=webapp" opinion_id="7597088">590 So.2d 1061 (Fla. 4th DCA 1991), and Abt v. State, 581 So. 2d 1001" court="Fla. Dist. Ct. App." date_filed="1991-07-31" href="https://app.midpage.ai/document/abt-v-state-1695640?utm_source=webapp" opinion_id="1695640">581 So.2d 1001 (Fla. 4th DCA 1991), is misplaced because in those cases the original sentencing order did not impose restitution. It was attempted on remand, which is prohibited.
We have considered appellant’s other contentions and find them, too, without merit.
Accordingly, we affirm the order appealed from.