05-1423 WALKER V. STATE

SUPREME COURT CASES

Laws-info.com » Cases » Florida » Florida Third District Court » 2005 » 05-1423 WALKER V. STATE

State: Florida

Court: Florida Third District Court

Docket No: 05-1423 WALKER V. STATE

Case Date: 11/23/2005

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2005

LAWTON ROBERT WALKER, Appellant, vs. THE STATE OF FLORIDA, Appellee.

** ** ** ** ** ** LOWER TRIBUNAL NO. 01-15512 CASE NO. 3D05-1423

Opinion filed November 23, 2005. An Appeal from the Circuit Court for Miami-Dade County, Kevin Emas, Judge. Bennett H. Brummer, Public Defender, and Goldstein, Assistant Public Defender, for appellant. Billie Jan

Charles J. Crist, Jr., Attorney General and Maria T. Armas, Assistant Attorney General, for appellee.

Before GERSTEN, GREEN, and RAMIREZ, JJ. GREEN, J. Lawton Robert Walker appeals an order modifying a condition of probation. We affirm.

Appellant pled guilty to one count of DUI manslaughter in exchange for a sentence of six years probation, 300 days in Dade County Jail, and payment of restitution to the victim's family for the victim's appellant medical appeared and in funeral court expenses. for a report Four years

later,

regarding

probation.

The probation officer informed the court that the

insurance company had paid for the victim's funeral expenses and the family did not want restitution from appellant. The

prosecutor orally moved to modify probation requesting that the court order appellant to pay restitution to the insurance

company.

The court granted the motion.

Appellant asserts that the trial court erred in modifying the probation to order payment of restitution to the insurance company under section 775.089, Florida Statutes (2001). not persuaded by this argument. We are

As a threshold consideration,

appellant agreed to pay restitution as part of his plea bargain. Changing the payee does not alter appellant's probation

conditions in any way; appellant's obligation hasn't changed. Notwithstanding that fact, in Montalvo v. State, 705 So. 2d 984, 988 (Fla. 3d DCA 1998), we affirmed an order awarding an

insurance company restitution in the amounts it had paid to its insured, insurance the victim. is Our sister courts to have held "that of an the

company

subrogated

the

rights

victim/insured," Cyrus v. State, 712 So. 2d 811, 812 (Fla. 4th

2

DCA 1998), making the defendant responsible for restitution to the insurance company. See State v. Williams, 689 So. 2d 1233,

1234 (Fla. 2d DCA 1997); L.S. v. State, 593 So. 2d 296, 297 (Fla. 5th DCA 1992); M.E.I. v. State, 525 So. 2d 467 (Fla. 1st DCA 1988). Hence, we are not persuaded by appellant's argument that

restitution to the insurance company under the statute is error. Moreover, we find that the court did not abuse its

discretion in modifying the probation order.

The court had no Kirby v.

discretion but to order restitution under the statute.

State, 863 So. 2d 238 (Fla. 2003); Montalvo; L.S., 593 So. 2d at 297. The modification of the payee was ministerial, as

restitution had been ordered as part of the original probation sentence. Affirmed.

3

Download 05-1423 WALKER V. STATE.pdf