5D01-1642 5D01-3481 McElrath v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D01-1642

Case Date: 07/22/2002

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2002

SHAUN D. MCELRATH, Appellant/Cross-Appellee, v. STATE OF FLORIDA, Appellee/Cross-Appellant. ___________________________________/ Opinion filed July 26, 2002 Appeal from the Circuit Court for Citrus County, Barbara Gurrola, Judge. James B. Gibson, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant/Cross-Appellee. Robert A. Butterworth, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee/Cross-Appellant. CASE NO. 5D01-1642 5D01-3481

PER CURIAM. We affirm McElrath's convictions. However, we vacate the restitution order entered by the trial court because the trial court lacked jurisdiction to order restitution while McElrath's underlying conviction was pending on appeal. Torres v. State, 812 So. 2d 610 (Fla. 1st DCA 2002).1

Although we vacate the restitution order because the trial court lacked jurisdiction, the trial court's determination regarding restitution was substantively correct. Section

1

CONVICTIONS AFFIRMED; RESTITUTION ORDER VACATED; CASE REMANDED.

SHARP, W., PLEUS and ORFINGER, R. B., JJ., concur.

775.089(1)(a), Florida Statutes (2001), authorizes the court to order restitution to a crime victim for damages or loss caused directly or indirectly by a defendant's offense or related to the defendant's criminal episode. The trial court refused to award restitution on one count of DUI resulting in serious bodily injury because McElrath was acquitted of that charge. A defendant cannot be ordered to pay restitution for damages arising out of crimes of which he was acquitted. See Henninger v. State, 667 So. 2d 488, 489 (Fla. 1st DCA 1996). 2

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