       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                       RICHARD ALLEN WHITE,
                             Petitioner,

                                    v.

                          STATE OF FLORIDA,
                             Respondent.

                             No. 4D13-2865

                              [April 1, 2015]

  Appeal being treated as a petition for writ of certiorari to the Circuit
Court for the Seventeenth Judicial Circuit, Broward County; Peter M.
Weinstein, Judge; L.T. Case No. 04004292 CF10A.

   Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public
Defender, West Palm Beach, for petitioner.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L.
Bettendorf, Assistant Attorney General, West Palm Beach, for
respondent.

KLINGENSMITH, J.

   Richard Allen White (“White”) appeals the final order of the trial court
finding him guilty of one count of attempted first-degree murder and
reserving jurisdiction to determine imposition of a restitution amount
payable to the victim. On appeal, White argues that the time for
imposition of a restitution amount has passed, and any such order
imposing a restitution amount is barred both procedurally and by the
defense of laches. For the reasons set forth herein, we treat White’s rule
3.800(b) motion as a petition for certiorari and deny the petition, but
remand the case to the trial court to hold a timely restitution hearing.

    In 2013, the trial court corrected a sentencing error that occurred
following White’s initial conviction in 2006. In the 2006 order, White
received his sentence and restitution was ordered, but the court reserved
as to the amount. Upon re-sentencing in 2013, the trial court issued a
final order which included the requirement that White must pay
restitution, but again did not specify an amount. White then filed a
motion to correct sentencing error pursuant to Florida Rule of Criminal
Procedure 3.800(b)(2), alleging that the trial court’s reservation of
jurisdiction to determine the amount of restitution was erroneous and
untimely. The trial court denied the motion, and this appeal followed.

   Regarding the imposition of an amount of restitution in a criminal
case, the Florida Supreme Court has held:

      [A]n order of restitution must be imposed at the time of
      sentencing or within sixty days thereafter. If an order of
      restitution has been entered in a timely manner, a court can
      determine the amount of restitution beyond the sixty-day
      period. We assume that a trial court will determine the
      amount of restitution at the earliest possible date.

State v. Sanderson, 625 So. 2d 471, 473 (Fla. 1993).

   Additionally, this court recently addressed the issue of a delayed
hearing to determine the amount of restitution in a criminal case in
Vasquez v. State, No. 4D14-2276, 2014 WL 5618047 (Fla. 4th DCA Nov.
5, 2014). There, we stated:

         In State v. Sanderson, 625 So.2d 471, 473 (Fla.1993), the
      Florida Supreme Court held that an order of restitution must
      be imposed at sentencing or within sixty days thereafter, in
      accordance with Section 775.089(1)(a), Florida Statutes, and
      Florida Rule of Criminal Procedure 3.800(b). It added that if
      restitution is timely ordered, the court can determine the
      amount of restitution beyond that sixty-day period.
      However, it also provided: “We assume that a trial court will
      determine the amount of restitution at the earliest possible
      date.” Id. at 473. Florida Rule of Judicial Administration
      2.545(a) provides that judges must “conclude litigation as
      soon as it is reasonably and justly possible to do so.” The
      Sanderson court did not authorize and likely never
      envisioned that a court would delay determination of the
      amount of restitution indefinitely.

         At this point, more than eight years have passed since the
      sentence commenced and restitution was ordered, and there
      is no indication that a hearing has been held or is
      contemplated in the near future. No reason for this delay
      has been demonstrated on this record.              In these
      circumstances, we conclude that the trial court’s order

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      denying a hearing on the amount of restitution constitutes a
      departure from the essential requirements of law. Vasquez
      is irreparably harmed in that the trial court’s order defers
      the restitution determination indefinitely. Her ability to
      dispute the amount of restitution diminishes as the
      memories of witnesses fade or evidence becomes stale or
      unavailable.

Id. at *1-2. This court thereafter remanded the case to the trial court for
a hearing to be held “as soon as practicable.” Id. at *2.

   A trial court may determine the amount of restitution after reserving
jurisdiction to do so at sentencing. Gladfelter v. State, 604 So. 2d 929,
930 (Fla. 4th DCA 1992) (“We have repeatedly held, however, that as long
as the requirement to pay restitution is included in the sentence, setting
the actual amount of restitution, even beyond sixty days from the
sentence, is permissible.”), aff’d, 618 So. 2d 1364 (Fla. 1993). Indeed,
the trial court can properly do so years after the date of sentencing if it
reserves jurisdiction. See Savory v. State, 600 So. 2d 1, 2 (Fla. 4th DCA
1992) (“The original sentence did impose restitution and the court
reserved jurisdiction to determine the amount at a later date. This is
permissible.”); see also Smith v. State, 589 So. 2d 387, 388 (Fla. 1st DCA
1991) (“A trial court may properly determine the amount of restitution at
a hearing subsequent to the sentencing date.”). Even so, a trial court
must still “determine the amount of restitution at the earliest possible
date.” Sanderson, 625 So. 2d at 473.

    Where a trial court reserves jurisdiction to determine a restitution
amount at a later time and the defendant files a notice of appeal in the
interim, the trial court is divested of jurisdiction over the issue while the
appeal is pending. Marro v. State, 803 So. 2d 906, 907 (Fla. 4th DCA
2002). However, “[o]n remand, the trial court may impose restitution
following a new hearing to determine the amount.” Id. Accordingly,
restitution hearings may be properly delayed for long periods of time in
situations where a defendant pursues lengthy or multiple appeals, and
still comply with the Florida Supreme Court’s ruling in Sanderson.

   In both Vasquez and the instant case, the restitution hearings
regarding the amounts owed were delayed in part because the
defendants pursued numerous appeals. Moreover, here, as in Vasquez,
no reasonable excuse has been demonstrated for the latest delay in
determining a restitution amount, and there is no indication in the
record that a hearing will be scheduled anytime soon. As such, the
practical effect is that White has been given an indefinite deferral of the

                                     -3-
determination of his obligation, while the victim has been deprived of the
right to timely restitution.

   In light of the amount of time that has passed since the initial
reservation on the issue of restitution, and considering this court’s ruling
in Vasquez, White is entitled to a hearing on the amount of restitution as
soon as practicable. Therefore, we remand this case to the trial court for
further proceedings in accordance with this opinion, without prejudice to
White’s ability to assert his defense of laches at the restitution hearing.

   Petition denied; Remanded with instructions.

GROSS and CONNER, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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