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Silky v. State

Florida Court of Appeals, Fourth District

December 13, 2017

JOSEPH SILKY, Petitioner,
v.
STATE OF FLORIDA, Respondent.

         Not 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.

          Joseph Silky, Crawfordville, pro se.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T. Acuña, Assistant Attorney General, West Palm Beach, for respondent.

          Gross, J.

         Joseph 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 set.

         In 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.

          Silky 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.

         On 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.

         On June 1 and 2, 2016, the court rendered restitution orders as to various victims.

         More 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."

         Under 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.

         No 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 ...

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