        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                              JOSEPH SILKY,
                                Petitioner,

                                      v.

                           STATE OF FLORIDA,
                              Respondent.

                              No. 4D17-2945

                           [December 13, 2017]

   Petition for belated appeal to the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Michael Rothschild, Judge; L.T. Case
No. 07-1182CF10A.

   Joseph Silky, Crawfordville, pro se.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T.
Acuña, Assistant Attorney General, West Palm Beach, for respondent.

GROSS, J.

    Joseph Silky seeks a belated appeal of his 2008 conviction and
sentence and a mitigated “resentencing” order rendered on July 1, 2015.
He also seeks a belated appeal of June 1 and 2, 2016 restitution orders.
Silky claims that he asked counsel to appeal the judgment, sentence, and
restitution orders after the restitution hearing on June 1, 2016. We write
primarily to address Silky’s contention, lifted from federal case law, that
the time for filing a direct appeal does not expire until a restitution amount
is set.

   In 2007, Silky was charged with second-degree grand theft (between
$20,000 and $100,000). He entered an open plea, and in May 2008, the
court initially sentenced him to five years in prison followed by ten years
of probation. The court ordered restitution and reserved on the amount.
The basis of the criminal charge involved Silky’s failure to fulfill contracts
as a professional photographer; the prosecution believed there were more
than 50 victims and that restitution totaled more than $80,000. The
defense disputed the restitution amount, so a restitution hearing was
required.
   Silky negotiated for a one-week furlough, which provided that a 15-year
sentence would be mitigated if Silky surrendered and complied with the
conditions of the agreement. Silky failed to appear. In 2014, he was
arrested in Mississippi.

   On April 28, 2015, Silky and the state reached an agreement that,
among other things, the prison sentence would be mitigated to seven years
in prison followed by probation. On July 1, 2015, the circuit court
rendered the resentencing order and reserved jurisdiction for a restitution
hearing. Silky did not appeal from the mitigated sentence.

   On June 1 and 2, 2016, the court rendered restitution orders as to
various victims.

   More than a year later, on September 5, 2017, Silky turned over to
prison officials the petition for belated appeal at issue here. The petition
argues that, pursuant to Gonzalez v. United States, 792 F.3d 232 (2d Cir.
2015), a conviction is not final while substantive restitution proceedings
are ongoing. He contends that the time for filing a direct appeal did not
run until the amount of restitution was determined in 2016. He asks for
a “belated direct appeal of sentence, judgment, and restitution orders.”

   Under Florida law, the time to appeal begins to run from a written order
imposing a sentence. A court is permitted to hold a restitution hearing
after the imposition of a sentence, and post-sentence restitution orders are
separately appealable from the original judgment and sentence.

   No Florida authority holds that a delayed restitution hearing tolls or
postpones the time to appeal from a criminal sentence. Florida Rule of
Appellate Procedure 9.140(b)(3) provides (in relevant part):

      (3) Commencement. The defendant shall file the notice
      prescribed by rule 9.110(d) with the clerk of the lower tribunal
      at any time between rendition of a final judgment and 30 days
      following rendition of a written order imposing sentence.

Id. (emphasis added).       The 30-day time limit established by Rule
9.140(b)(3) establishes a bright line rule that encourages clarity and
uniformity in procedure. A restitution order is not one of the matters that
tolls rendition of an order. See Fla. R. App. P. 9.020(i).

   The restitution statute provides: “In addition to any punishment, the
court shall order the defendant to make restitution to the victim . . . .” §
775.089(1)(a), Fla. Stat. (2017). In 1993, the Florida Supreme Court held

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that, while an order requiring restitution must be imposed at sentencing
or within 60 days thereafter, the amount can be determined at a later date.
See State v. Sanderson, 625 So. 2d 471, 473 (Fla. 1993). It is because a
sentencing order must be appealed within 30 days of the rendition of a
sentence that Florida courts have held that the appeal divests the trial
court of jurisdiction to determine the amount of restitution. See White v.
State, 190 So. 3d 99, 101 (Fla. 4th DCA 2015). This court has suggested
that “where the hearing is not set to occur until after notice of appeal has
been filed, the better practice would be to ask this court to relinquish
jurisdiction to allow the trial court to hold a hearing as to the amount of
restitution.” Stanek-Cousins v. State, 912 So. 2d 43, 48 (Fla. 4th DCA
2005).

    That a restitution order does not alter the time for appeal of an earlier
sentence is demonstrated by the fact that restitution orders are often
reviewed separately from the original judgment and sentence. E.g., James
v. State, 223 So. 3d 288, 289 (Fla. 4th DCA 2017); Thompson v. State, 68
So. 3d 425, 426 (Fla. 4th DCA 2011); Sage v. State, 988 So. 2d 150, 151
(Fla. 4th DCA 2008); Soriano v. State, 968 So. 2d 112, 113 (Fla. 4th DCA
2007).

   We decline to follow the federal authority on which Silky relies.
Gonzalez, 792 F.3d 232 at 235, addressed when an appeal is “final” for
purposes of a federal postconviction motion. See 28 U.S.C. § 2255. The
question presented in Gonzalez was: “Does the limitations period begin to
run with an order affirming a conviction and sentence but remanding for
recalculation of restitution, or does it begin to run only after the district
court enters a revised restitution order on remand?” 792 F.3d at 233. The
court held that the limitations period “begins to run only when the revised
restitution order becomes final.” Id. Gonzalez dealt strictly with when the
federal postconviction clock began to run and is inapplicable here.

   We note that the Eleventh Circuit has held that a judgment sentencing
a defendant to imprisonment but reserving jurisdiction to determine the
amount of restitution is final for purposes of appeal. See United States v.
Muzio, 757 F.3d 1243, 1244 (11th Cir. 2014) (citing Dolan v. United States,
560 U.S. 605 (2010)). However, Muzio contains dicta that suggests a
defendant might also wait to appeal a federal sentence until after
restitution has been determined:

      The Supreme Court has also recognized that if the defendant
      chooses to do so, he may avoid bifurcation of his appeal by
      waiting until restitution has been resolved to appeal. See


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        Corey 1 (holding that defendants have the option to appeal
        immediately from an initial sentencing judgment or to wait
        and appeal from both judgments only after the second has
        been entered).

Muzio, 757 F.3d at 1250; see         also Gonzalez, 792 F.3d at 237 (“The
Supreme Court’s decision in          Corey v. United States supports the
conclusion that while the initial    judgment is sufficiently final for appeal,
an appeal could also be pursued      following entry of the restitution order.”).

   This dicta from federal cases does not derive from a rule of
constitutional law that is binding on the states. Corey involved a
defendant who was committed preliminarily under 18 U.S.C. 4208(b), but
three months later, the court entered an order imposing probation. 375
U.S. at 170. In that situation, the U.S. Supreme Court said that the
defendant could appeal the preliminary order committing him or the
subsequent “final” disposition. Corey was based on an application of
federal statutes not applicable here; the case did not establish a
constitutional rule directed at how state court criminal judgments must
be appealed.

    For these reasons, we decline to apply Muzio and Gonzalez and hold
that reserving jurisdiction to determine the amount of restitution does not
impact appellate or postconviction time limits set by Florida rules of
procedure. See United States v. Gilbert, 807 F.3d 1197, 1200-01 (9th Cir.
2015) (holding that the time limit to appeal runs following the sentence
even if the restitution amount is unspecified and that the postconviction
time limit does not restart once the restitution amount is set); see also
Dolan v. United States, 560 U.S. 605, 617 (2010) (recognizing in dicta that
“strong arguments favor the appealability of the initial judgment
irrespective of the delay in determining the restitution amount.”).

    We conclude that Silky’s judgment and initial sentence became final in
2008 after he failed to appear for the mitigation hearing. The time for
direct appeal expired while Silky was a fugitive. The petition for “belated
direct appeal of sentence, judgment, and restitution orders” is untimely,
and Silky establishes no basis for a belated appeal of his judgment and
initial sentence.

   The petition is also untimely from the July 1, 2015 resentencing order
that mitigated Silky’s sentence. The two-year time limit to petition for
belated appeal from the resentencing order began to run on July 31, 2015

1   Corey v. United States, 375 U.S. 170, 175 (1963).

                                        -4-
– when the 30-day time period for filing a notice of appeal expired. Fla. R.
App. P. 9.141(d)(5). This petition was filed under the prisoner mailbox rule
on September 5, 2017 – more than a month after the time limit expired.
The petition does not set forth any valid exception to the time limitation.
See Fla. R. App. P. 9.141(d)(5).

   The petition, however, is timely as to the June 2016 restitution orders.
Courts have granted a belated appeal from a restitution order. E.g., Adirim
v. State, 166 So. 3d 229 (Fla. 5th DCA 2015). The state has presented a
good faith basis to dispute Silky’s allegation that he asked counsel to
appeal the restitution orders. By a separate order, we will direct the circuit
court to appoint a commissioner to make findings of fact as to whether
Silky timely requested counsel to file a notice of appeal from the restitution
orders rendered on June 1 and 2, 2016.

MAY and KUNTZ, JJ., concur.


                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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