final until disposition of timely filed motion for rehearing.
Petition for belated appeal to the Circuit Court for the
Seventeenth Judicial Circuit, Broward County; Michael
Rothschild, Judge; L.T. Case No. 07-1182CF10A.
Silky, Crawfordville, pro se.
Jo Bondi, Attorney General, Tallahassee, and Kimberly T.
Acuña, Assistant Attorney General, West Palm Beach,
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
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.
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.
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.
1 and 2, 2016, the court rendered restitution orders as to
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."
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.
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 ...