Opinion
No. 5D99-2051.
Opinion filed March 17, 2000.
Appeal from the Circuit Court for St. Johns County, Robert K. Mathis, Judge.
James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
The trial court entered restitution orders against Ralph Moriarity but after Moriarity filed a notice of appeal of his judgment and sentence. We vacate the restitution orders because the trial court lost jurisdiction to enter the orders while the appeal was pending. See Kern v. State, 726 So.2d 353 (Fla. 5th DCA 1999).
Although Moriarity has prevailed on this issue at this time, his victory may not prove to be permanent. The trial court reserved jurisdiction to enter a restitution order at the time of sentencing and included the reservation in the judgment. Therefore, a timely hearing after notice is given may be held to require restitution after the mandate in this appeal has issued. RESTITUTION ORDER VACATED.
COBB and PETERSON, JJ., concur.
GRIFFIN, J., concurs specially, with opinion.
Notwithstanding the long apparently unbroken line of cases supporting our decision, which I am bound to follow, I do not see why the lower court is divested of jurisdiction to enter a restitution order while an appeal of the judgment is pending. Section 960.292, Florida Statutes (1999), seems to contemplate continuing jurisdiction and there appears to be no good reason why the power to enter such orders is tolled while the case is in the appellate court. Such an order has no effect on our appellate jurisdiction. By making the court delay conducting the restitution hearing until after the appeal, we only make matters more difficult for the victims, the judge, the prosecutor and the defendant. I simply do not agree with Hart v. State, 516 So.2d 58 (Fla. 2d DCA 1987), which appears to be a leading source of this view. Another source is Gonzalez v. State, 384 So.2d 57 (Fla. 4th DCA 1980), but that case dealt with the modification of a sentence.