Golden Vasquez v. State , 2014 Fla. App. LEXIS 18085 ( 2014 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2014
GOLDEN VASQUEZ,
Petitioner
v.
STATE OF FLORIDA,
Respondent.
No. 4D14-2276
[November 5, 2014]
Petition for writ of certiorari to the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Martin J. Bidwill, Judge; L.T. Case No.
05-3562 CF10A.
Golden Vasquez, Florida City, pro se.
Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L.
Comras, Assistant Attorney General, West Palm Beach, for respondent.
PER CURIAM.
Golden Vasquez has filed a petition for writ of certiorari which
challenges a trial court order that denied her motion seeking a hearing on
the amount of restitution. Because the unreasonable and unjustified
delay of more than seven years causes irreparable harm, we grant the
petition.
In 2006, Vasquez was convicted of first degree grand theft and
sentenced to fifteen years in prison. The trial court ordered restitution
but reserved jurisdiction to determine the amount at a later date. More
than seven and a half years had passed since her sentencing and
incarceration had begun, when Vasquez alleged in her motion that the trial
court still had not conducted a hearing to determine the amount of
restitution. She argued that the amount of restitution should have been
determined before or at the time of sentencing as it could have impacted
the sentence she received and that the court’s failure to have determined
the amount of restitution when imposing sentence denied her due process
of law. The trial court denied the motion without requiring a response and
without explanation.
Our certiorari standard of review requires us to determine whether
Vasquez has demonstrated a departure from the essential requirements of
law resulting in material harm that cannot be adequately remedied on
appeal. Cf. Ford v. State, 829 So. 2d 946 (Fla. 4th DCA 2002) (granting
certiorari review and ordering a new restitution hearing where the victim’s
rights were denied as to restitution); see generally Bared & Co., Inc. v.
McGuire, 670 So. 2d 153 (Fla. 4th DCA 1996) (setting forth the standard
for certiorari review of nonfinal orders).
We do not find persuasive Vasquez’s argument that the court was
required to determine the amount of restitution before or at sentencing.
She cites no authority that requires the court to do so, nor has she shown
that the failure to have determined the amount of restitution at the time
of sentencing denies her due process. The essence of Vasquez’s challenge,
however, is to the extreme delay in determining the amount of restitution.
We conclude that the delay is unreasonable and that such a lengthy delay
threatens Vasquez’s opportunity to be meaningfully heard and to dispute
the amount of restitution.
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 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
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witnesses fade or evidence becomes stale or unavailable.
We grant the petition for writ of certiorari, quash the order denying the
motion for restitution hearing, and remand to the trial court to conduct a
hearing on the amount of restitution as soon as practicable.
Petition granted.
STEVENSON, GROSS and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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