5D01-3421 Fisher v. State

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D01-3421

Case Date: 02/10/2003

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2003

FELICIA FISHER, Appellant, v. STATE OF FLORIDA, Appellee. ______________________________/ Opinion filed February 14, 2003 Appeal from the Circuit Court for Lake County, William G. Law, Judge. Barbara Twine-Thomas of Stewart, Joyner & Jordan-Holmes, P.A., Tampa, for Appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee. SHARP, W., J. Fisher appeals from an order holding her in contempt for failure to make restitution payments and from an order denying her motion to vacate the restitution order which was the basis for the contempt order. We reverse both orders. These orders were rendered in connection witha juvenile delinquencyproceeding involving Fisher's daughter, T.F. T.F., age thirteen, was charged with burglary and arson, after she and two other girls broke CASE NO. 5D01-3421

into a vacant house and set it on fire. The house burned to the ground. T.F. and Fisher both signed an affidavit of indigency and a public defender was appointed for T.F. On August 19, 1999, T.F. pled no contest, was adjudicated delinquent and placed in a Level 4 program. Fisher, as well as the public defender, were present. The amended order rendered after the delinquency hearing and sentencing states: "Restitution, parents responsible also, reserved right to restitution hearing to determine amount." This was the first notice or statement by the judge or the state that Fisher was to be held personally liable for restitution. The restitution hearing was held on January 28, 2000. An employee of the Lake County Property Appraiser's Office testified the house was owned by Jeffrey and Belinda Richardson and in 1999, it had a total assessed value of $30,461 (land valued at $19,800 and the house at $10,661). Other witnesses testified it would cost $5,200 to demolish the house and $95,160 to replace it. Belinda Richardson testified her father lived in the house until he died in December 1996, and after that time the house was vacant. However, she testified the house contained antique furniture and other contents she valued at $25,000. Fisher testified she was familiar with the house. It had been abandoned, some of the downstairs windows lacked window panes, and rats, racoons or snakes could be in the house. Additional testimony was apparently taken from Fisher1 that she is a single parent and earns $45,000 a year. Fisher told the judge that with her income of $17.00 per hour, she could not afford to pay restitution for the house.

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The tape of the hearing ends but apparently Fisher continued to testify. 2

On February 1, 2000, the judge entered an order requiring Fisher to pay restitution in the amount of $25,861 ($5,200 for demolition, $10,000 for the contents of the house, and $10,661 for the house structure). He directed Fisher to pay $250 per month. Fisher questioned the propriety of the restitution order at a February 22, 2001 hearing, and the court minutes reflect "the mother is ordered to pay." On February 26, 2001, Fisher wrote a letter to the judge disputing the amounts used to calculate restitution. She had information the property was in a dilapidated state and had been the subject of notices of code violations. She also disputed anyone would have left valuable antiques in a house in such condition. The judge treated the letter as a motion for rehearing and summarily denied it. On May 15, 2001, a different judge issued an order directing Fisher to show cause why she should not be held in contempt for failure to pay restitution. A contempt hearing was held. Fisher apparently had paid $1,485 but then stopped making payments. She testified she is a registered nurse, earning $21 an hour. She rents her home and has legal custody of two grandchildren, ages three and four. She had $2,000 in a savings account. The judge held her in contempt and sentenced her to thirty days in jail with a purge provision of $500. She spent a month in jail. In August 2001, Fisher retained private counsel. The state again petitioned for a rule to show cause why Fisher should not be held in contempt for failure to pay restitution. A hearing ensued before the second judge on November 1, 2001. At that hearing, Fisher's defense counsel filed a motion to vacate the restitution order, arguing it was void ab initio because Fisher had not been properly noticed that she could be held personally liable for restitution in her daughter's case, and the court failed to make a finding (or take any testimony which would support such a finding) that Fisher had 3

failed to make diligent and good faith efforts to prevent T.F. from engaging in delinquent acts, pursuant to section 985.231(9), Florida Statutes. The judge denied relief on the ground that "parental diligence" was a defense Fisher had to establish and that this was not an element the state had to prove in order for the court to impose an order of restitution on a parent for the acts of a delinquent child. The court then took evidence concerning Fisher's ability to pay the restitution amount. It found she had the ability to pay $250 per month as set forth in the prior order. On December 21, 2001, the court rendered an order holding Fisher in contempt and sentenced her to six months in jail, with a purge provision of $250. In another order rendered on the same date, it denied Fisher's motion to vacate the original restitution order. She appeals from both orders in this proceeding. We conclude that the court improperly imposed restitution on Fisher without making the findings required by section 985.231. This statute provides: (1)(a) The court that has jurisdiction of an adjudicated delinquent child may, by an order stating the facts upon which a determination of a sanction and rehabilitative program was made at the disposition hearing: *** 5. Require the child and, if the court finds it appropriate, the child's parent or guardian together with the child, to render community service in a public service program. 6. As part of the probation program to be implemented by the Department of Juvenile Justice, or, in the case of a committed child, as part of the community-based sanctions ordered by the court at the disposition hearing or before the child's release from commitment, order the child to make restitution in money, through a promissory note cosigned by the child's parent or guardian, or in kind for any damage or loss caused by the child's offense in a reasonable amount or manner to be determined by the court. ... A finding by the court, after a hearing, that the parent or guardian has made diligent and good faith efforts to prevent the child from 4

engaging in delinquent acts absolves the parent or guardian of liability for restitution under this subparagraph. 7. Order the child and, if the court finds it appropriate, the child's parent or guardian together with the child, to participate in a community work project, either as an alternative to monetary restitution or as part of the rehabilitative or probation program. *** 9. In addition to the sanctions imposed on the child, order the parent or guardian of the child to perform community service if the court finds that the parent or guardian did not make a diligent and good faith effort to prevent the child from engaging in delinquent acts. The court may also order the parent or guardian to make restitution in money or in kind for any damage or loss caused by the child's offense. The court shall determine a reasonable amount or manner of restitution, and payment shall be made to the clerk of the circuit court as provided in subparagraph 6. (emphasis added) Restitution was imposed on Fisher pursuant to subsection (9) quoted above, since it was not being ordered in connection with a probation program or a community based sanction but rather as part of the sanctions initially imposed on T.F. The language in subsection (6) is different than in subsection (9), lending itself somewhat to the judge's interpretation, that it is a defense a parent must establish to escape from sanctions, although we do not address that issue in this case. Subsection (9) requires the court to find that the parent or guardian did not make a diligent and good faith effort to prevent the child from engaging in delinquent acts before ordering a parent or guardian to perform community services. As we held in B.M. v. State, 744 So. 2d 505 (Fla. 5th DCA 1999), although the next sentence in subsection (9) permitting the court to impose restitution on a parent or guardian does not expressly require a similar finding, such a required finding is implied from the structure of the statute. Accord J.C.R. v. State, 785 So. 2d 550 (Fla. 4th DCA 2001). 5 Holding a parent

vicariously liable for a child's harmful or delinquent acts is a departure from the common law, and statutes imposing such liability should be construed narrowly.2 In this case, no finding was made that Fisher failed to make a diligent and good faith effort to prevent T.F. from engaging in the delinquent act involved in this case or any other. Nor was any evidence presented concerning Fisher's parenting efforts. In B.M., we noted there were procedural problems with how and when such a hearing should be held pursuant to section 985.231, and whether a parent or guardian would be entitled to state representation at such a hearing. We simply remanded to the trial court to conduct a hearing. Since that time, the juvenile rules have been amended to remedy our procedural due process concerns when the state seeks restitution or other sanctions against parents or guardians of delinquent children. See Fla. R. Juv. P. 8.040, 8.030, 8.031.3 Effective January 1, 2001, the rules provide that the
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Canida v. Canida, 751 So. 2d 647 (Fla. 3d DCA 1999), rev. denied, 767 So. 2d 455 (Fla.

2000).
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The juvenile rules now contain specific provisions relating to parental sanctions: Rule 8.030. Commencement of Formal Proceedings. (b) Allegations as to Parents or Legal Guardians. In any delinquency proceeding in which the state is seeking payment of restitution by the child's parents or legal guardians, or any other penalty under chapter 985, Florida Statutes, a separate petition alleging the parents' or legal guardians' responsibility shall be filed and served on the parents or legal guardians of the child.

Rule 8.031. Petition for Parental Sanctions. (a) Contents. Each petition directed to the child's parents or legal guardians shall be entitled a petition for parental 6

state must file and serve a petition on the parents or guardians in cases where restitution or other sanctions are sought against them. The petition must set forth facts to establish the appropriateness of imposing sanctions on them, and service must occur 72 hours before the hearing concerning imposition of the sanctions. The state argues that even if a "diligence and good faith hearing" was not held in this case and the statute required it, Fisher should have raised that issue in a direct appeal and that since she did not do so she has waived this defect. Thus the validity of the restitution order has become the law of the case. Normally what the state argues would be true, if the judgment being collaterally attacked was not void. See Cesaire v. State, 811 So. 2d 816 (Fla. 4th DCA 2002)(person cannot be compelled to obey a void order); Synchron, Inc. v. Kogan, 757 So. 2d 564 (Fla. 2d DCA 2000)(disobedience of a void order, judgment, or decree, or one issued by a court without jurisdiction of the subject-matter and parties, is not "contempt"); In re Elrod, 455 So. 2d 1325 (Fla. 4th DCA1984)(a court does not have contempt powers

sanctions and shall allege all facts showing the appropriateness of the requested sanction against the child's parents or legal guardians. Rule 8.040. Process. (b)(2) Petition for Parental Sanctions. A petition for parental sanctions may be served on the child's parents or legal guardians in open court at any hearing concerning the child, but must be served at least 72 hours before the hearing at which parental sanctions are being sought. The petition for parental sanctions also may be served in accordance with chapter 48, Florida Statutes.

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to enforce violations of its orders if they are rendered without jurisdiction over the subject matter or the parties or transcend its power or authority). Fisher argues that the restitutionorder is void because the court did not acquire personal jurisdiction over her. She was never served with process in her daughter's case nor was there any pleading directed at her to put her on notice she could be held personally liable for a restitution order in her daughter's delinquency case. However, a party can make a voluntary appearance and submit to the jurisdiction of a court even where the party is not served with process. Manufacturers National Bank of Detroit v. Moons, 659 So. 2d 474 (Fla. 4th DCA 1995); McKelvey v. McKelvey, 323 So. 2d 651 (Fla. 3d DCA 1976);

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