RESTITUTION IN FLORIDA CRIMINAL LAW
Attorney Ken Lewis at the Lewis Law Firm has handled hundreds of cases involving restitution issues in Florida criminal courts. I represent defendants and victims in criminal matters involving restitution and will fight for you. Hiring a criminal defense lawyer that knows the law on restitution could mean dollars in your pocket. We protect victims rights and defendants rights in issues dealing with restitution in criminal cases in Florida.
What is restitution in a Florida criminal case?
Florida Statute 775.089 provides in pertinent part:
(1)(a) In addition to any punishment, the court shall order the defendant to make restitution to the victimfor:
1. Damage or loss caused directly or indirectly by the defendant's offense; and
2. Damage or loss related to the defendant's criminal episode,
unless it finds clear and compelling reasons not to order such restitution. Restitution may be monetary or nonmonetary restitution. The court shall make the payment of restitution a condition of probation in accordance with s. 948.03.
(b)1. If the court does not order restitution, or orders restitution of only a portion of the damages, as provided in this section, it shall state on the record in detail the reasons therefor.
2. An order of restitution entered as part of a plea agreement is as definitive and binding as any other order of restitution, and a statement to such effect must be made part of the plea agreement. A plea agreement may contain provisions that order restitution relating to criminal offenses committed by the defendant to which the defendant did not specifically enter a plea.
775.089(c) The term "victim" as used in this section and in any provision of law relating to restitution means each person who suffers property damage or loss, monetary expense, or physical injury or death as a direct or indirect result of the defendant's offense or criminal episode, and also includes the victim's estate if the victim is deceased, and the victim's next of kin if the victim is deceased as a result of the offense.
Hollingsworth v. State, 835 So. 2d 373, 374 (1st DCA 2003)term “victim” as used in this section and in any provision of law relating to restitution means each person who suffers property damage or loss, monetary expense, or physical injury or death as a direct or indirect result of the defendant's offense or criminal episode, and also includes the victim's estate if the victim is deceased, and the victim's next of kin if the victim is deceased as a result of the offense.In Hollingsworth the victim's mother was able to collect lost wages due to emotional distress of time lost at work.
Who is entitled to restitution in a Florida criminal case?
What restitution from physical injury is recoverable in a Florida criminal case?
775.089(2)(a) When an offense has resulted in bodily injury to a victim, a restitution order entered under subsection (1) shall require that the defendant:
1. Pay the cost of necessary medical and related professional services and devices relating to physical, psychiatric, and psychological care, including nonmedical care and treatment rendered in accordance with a recognized method of healing.
2. Pay the cost of necessary physical and occupational therapy and rehabilitation.
3. Reimburse the victim for income lost by the victim as a result of the offense.
4. In the case of an offense which resulted in bodily injury that also resulted in the death of a victim, pay an amount equal to the cost of necessary funeral and related services.
775.089(2)(b) When an offense has not resulted in bodily injury to a victim, a restitution order entered under subsection (1) may require that the defendant reimburse the victim for income lost by the victim as a result of the offense.Vanlieu v. State, 630 So.2d 1218, (5th DCA 1994).
Hollingsworth v. State, 835 So. 2d 373, 374 (1st DCA 2003) term “victim” as used in this section and in any provision of law relating to restitution means each person who suffers property damage or loss, monetary expense, or physical injury or death as a direct or indirect result of the defendant's offense or criminal episode, and also includes the victim's estate if the victim is deceased, and the victim's next of kin if the victim is deceased as a result of the offense.In Hollingsworth the victim's mother was able to collect lost wages due to emotional distress of time lost at work.
775.089(3)(a) The court may require that the defendant make restitution under this section within a specified period or in specified installments.
(b) The end of such period or the last such installment shall not be later than:
1. The end of the period of probation if probation is ordered;
2. Five years after the end of the term of imprisonment imposed if the court does not order probation; or
3. Five years after the date of sentencing in any other case.
(c) Notwithstanding this subsection, a court that has ordered restitution for a misdemeanor offense shall retain jurisdiction for the purpose of enforcing the restitution order for any period, not to exceed 5 years, that is pronounced by the court at the time restitution is ordered.
(d) If not otherwise provided by the court under this subsection, restitution must be made immediately.
If the restitution ordered by the court is not made within the time period specified, the court may continue the restitution order through the duration of the civil judgment provision set forth in subsection (5) and as provided in s. 55.10.
775.089(7) Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence.The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense is on the state attorney. The burden of demonstrating the present financial resources and the absence of potential future financial resources of the defendant and the financial needs of the defendant and his or her dependents is on the defendant. The burden of demonstrating such other matters as the court deems appropriate is upon the party designated by the court as justice requires.
(8) The conviction of a defendant for an offense involving the act giving rise to restitution under this section shall estop the defendant from denying the essential allegations of that offense in any subsequent civil proceeding. An order of restitution hereunder will not bar any subsequent civil remedy or recovery, but the amount of such restitution shall be set off against any subsequent independent civil recovery.
Prior to ordering restitution, the state must prove by a preponderance of the evidence that: (1) the damage or loss for which restitution is ordered was caused directly or indirectly by defendant's offense; and (2) there is a significant relationship between the damage to the victim and the crime proved. Socorro v. State, 901 So.2d 940 (5thDCA April 29, 2005) citing to Bernard v. State,859 So.2d 560, 562 (5thDCA 2003); Dyer v. State, 622 So.2d 1158 (5thDCA 1993); 775.089(1)(a)(2004).
The State has the burden of proving the amount of the victim's loss by a preponderance of the evidence. Prosecutor’s representations as to what victims told him is insufficient. See Windorn v. State, 625 So.2d 977 (2ndDCA 1993).
Consideration of defendant's ability to pay restitutionneed not be a consideration at the time restitution is ordered. It is a consideration at the time of a probation violation for failure to pay, however. See Nieves v. State, 678 So.2d 468 (5thDCA 1996) finding that section 775.089(6), amended effective May 8, 1995, now provides that financial resources and ability to pay restitution is to be considered at the time of enforcement of the restitution order, rather than at the time restitution is ordered.
However, it is improper for a court to order the immediate payment of restitution from a defendant who has no immediate ability to pay. See Edwards v. State, 892 So.2d 1192 (5thDCA 2005) citing Boss v. State, 613 So.2d 525 (5thDCA 1993).
Restitution is generally paid to the clerk of the court and dispensed but in some instances may be paid directly.
775.089(9) (11)(a) The court may order the clerk of the court to collect and dispense restitution payments in any case.
(b) The court may order the Department of Corrections to collect and dispense restitution and other payments from persons remanded to its custody or supervision.
F.S. 775.089 makes clear that the court must order restitution where applicable unless it finds clear and compelling reasons not to order such restitution. Where it is not ordered, the court must place its reasons on the record. See State v. Shinall, 899 So.2d 1219 (1stDCA April 20, 2005); State v. Nagurney, 687 So2d 336 (4thDCA 1997) citing State v. MacLeod, 600 So.2d 1096 (Fl. 1992). See also 921.187(4) and 948.032 948.03(1)(e) showing legislative intent that restitution be ordered.
Since restitution is a mandated part of sentencing, the failure to impose restitution results in an incomplete sentence that is subject to timely modification. See Ridley v. State, 890 So.2d 1261 (5th DCA Jan. 2005).
Trial Court’s refusal to reserve jurisdiction on issue of restitution to allow time for the victim to collect and organize medical bills, effectively denied the victim his statutory right to restitution and was an abuse of discretion. State v. Nagurney, 687 So2d 336 (4th DCA 1997).
Under Florida Rule of Criminal Procedure 3.800( c ) formerly 3.800(b), a legal sentence may be reduced or modified within sixty days after imposition of the sentence. Thus, “an order of restitution must be imposed at the time of sentencing or within sixty days thereafter.” See State v. Sanderson, 625 So.2d 471, 473 (Fla. 1993) referencing Florida
Rule of Criminal Procedure 3.800( c ).
Adding the requirement that the defendant pay restitution after the initial imposition of sentence is not a sentencing enhancement or punishment enhancement. See Grice v. State, 528 So.2d 1347 (1stDCA 1988); Bunch v. State, 745 So.2d 400 (5thDCA 1999).
An order of restitution must therefore be imposed at sentencing or within 60 days of the sentencing. See State v. Sanderson, 625 So.2d 471 (Fl. 1993); Hollins v. State, 881 So.2d 86 (5thDCA 2004); Bunch v. State, 745 So.2d 400 (5thDCA 1999).
A defendant may seek relief from an adverse restitution order provided he has made a contemporaneous objection or has filed for relief under Florida Rule of Criminal Procedure 3.800(b). The State may also seek relief under rule 3.800(b) but only if the correction of the sentencing error would benefit the defendant. See State v. Shinall, 899 So.2d 1219 (1stDCA April 20, 2005) comparingFillyaw v. State, 734 So.2d 1136 (1stDCA 1999) and Robinson v. State, 757 So.2d 532 (4thDCA 2000). See also Rodriquez v. State,899 So.2d 471 (3rdDCA April 2005).
The court loses jurisdiction to enter an order imposing restitution 60 days after sentencing has passed. Selwyn v. State, 903 So.2d 361, 362 (2ndDCA June 15, 2005)citing State v. Hiscox, 677 So.2d 862 (2ndDCA 1996).The court has a full 60 days from sentencing to order restitution, even where the court sets a self imposed time limit of less than the 60 day period. For example, if at sentencing, the court reserved jurisdiction for 30 days to order restitution, it may still order restitution provided it is within 60 days of sentencing. See Butler v. State, 901 So.2d 922 (2ndDCA April 22, 2005).
Where the court does enter an order of restitution within sixty days of sentencing but does not set any amount, it may determine the actual amount at a later date beyond the 60 day period.Selwyn v. State, 903 So.2d 361, 632 (2ndDCA June 15, 2005)citing State v. Sanderson, 625 So.2d 471 (Fla. 1993); State v. Hiscox, 677 So.2d 862 (2ndDCA 1996).
However, where the court sets the restitution amount within the 60 day period, it cannot modify the amount set after the 60 day period. See Davis v. State, 685 So.2d 1357 (2ndDCA 1996) distinguishing Sanderson. See also J.C. v. State, 632 So.2d 1092 (2ndDCA 1994) finding that the trial court lost jurisdiction to modify restitution after 60 days where the original restitution amount had been set at zero.
Additionally, if the court at sentencing, orders restitution but sets the restitution amount at zero and reserves jurisdiction for less than the 60 days to change or modify the amount upon the State’s objection, than this shorter time period will apply. See Butler v. State, 901 So.2d 922 (2ndDCA April 22, 2005) distinguishing C.W. v. State, 637 So.2d 28 (2ndDCA 1994).
Once an appeal has been filed on the case, the court loses jurisdiction to hold a restitution hearing or enter an order of restitution, even though the trial court may have previously ordered restitution and reserved jurisdiction only as to the amount. See Butler v. State, 901 So.2d 922 (2ndDCA April 22, 2005) citing Pearson v. State, 686 So.2d 721 2ndDCA 1997). Once the appellate court’s jurisdiction has ended, it does appear that the trial court can entertain the restitution issue again however, where done in a timely fashion. See e.g., Nguyen v. State, 655 So.2d 1249 (1stDCA 1995); Wenner v. State,610 So.2d 80 (2ndDCA 1992).
An order of restitution is proper, if “but for” the criminal episode, damages would not have been incurred by the victim. Socorro v. State, 901 SO.2d 940 (5thDCA April 29, 2005) citing Triplett v. State, 709 So.2d 107 (5thDCA 1998). Where a defendant pleads guilty to theft of an item, he is responsible for making restitution for that item. See Thomas v. State, 899 So.2d 1279 (2ndDCA 2005).
Restitution may not be ordered for any loss which resulted from an unrelated offense for which the defendant was not charged or convicted. Socorro v. State, 901 So.2d 940 (5th DCA April 29, 2005) citing Johnston v. State, 870 So.2d 877 (1stDCA 2004); Faulkner v. State,582 So.2d 783(5thDCA 1991). In Socorro v. State, the defendant was responsible for the initial theft of the truck but not the subsequent theft of the truck from the impound lot where it had been towed after his arrest. Thus restitution was improper.
There must also be a casual relationship between the defendant’s crime and the damages involved before restitution can be ordered. For example, a defendant convicted of leaving the scene of an accident cannot be ordered to pay restitution for injuries which resulted from the accident. See State v. Williams, 520 So.2d 276 (Fl. 1988). In Schuette v. State, 822 So.2d 1275 (Fl. 2002), the Florida Supreme court found that a defendant’s conviction for driving on a suspended license would not require restitution to the victims in the accident which occurred while the defendant was driving. In the court’s view, there was an insufficient relationship between the act of driving with a suspended license and the damages which resulted from the accident.
However, as F.S. 775.089(2) clearly states restitution can be made part of a plea agreement and aplea agreement may contain provisions that order restitution relating to criminal offenses committed by the defendant but which the defendant did not specifically enter a plea to.
Where restitution is owed, it should be made a part of the negotiated plea. Where a defendant agrees to pay restitution as part of a plea agreement, the calculation of the amount by the trial court will be reviewed by an “abuse of discretion” standard. Troxell v. State,662 So.2d 1014 (5thDCA 1995). See also Hebert v. State, 614 So.2d 493.
“Where restitution is part of a plea bargain, it should be liberally construed in favor of making the victim whole.” Hercule v. State, 655 So.2d 1256, 1257 (3rdDCA 1995); see also Montalvo v. State, 705 So.2d 984, 986 (3rdDCA 1998) (noting that where a plea agreement leaves restitution to the trial court's discretion, reversal is not warranted absent a clear showing that the trial court abused its discretion).
A defendant, who agrees to make full restitution as part of a plea agreement where no amount is agreed to in the plea agreement, will be allowed a hearing as to the amount where a bone fide objection is raised as to the amount. See Nettles v. State, 611 So.2d 103 (5thDCA 1992).
Regardless of a plea agreement, the court may award restitution in an amount which exceeds the maximum dollar amount defining the crime. For example, a person who commits the second – degree misdemeanor offense of criminal mischief can be ordered to pay restitution in an amount exceeding $200.00 threshold. See J.O.S. v. State, 689 So.2d 1061 (Fl. 1996).
Where more than one defendant is responsible for the crime, it is within the court’s discretion to require the defendant to pay the full amount, find them jointly and severally liable or apportion restitution as it deems appropriate. See Spivey v. State, 531 So.2d 965 (Fl. 1988); Moore v. State, 664 So.2d 343 (5thDCA 1995).
It is error for a trial court to conduct a restitution hearing in the defendant's absence without a showing that the absence is voluntary. See T.A.S. v. State, 892 So.2d 1233
(2ndDCA Feb. 2005) (record evidence did not establish that T.A.S. knew a restitution hearing was scheduled or that he waived his right to be present) citing Miller v. State, 833 So.2d 318 (2ndDCA 2003); J.B. v. State, 646 So.2d 808 (1stD
In determining the amount the state has the burden to establish the amount based on competent evidence rathee than on mere speculation. Boulais v. State, 706 So.2d 365, (1st DCA 1998).
The state may prove the restitution amount “by presenting testimony of a witness with knowledge of the amount of damage and repairs, or by presenting uncontested documentary evidence.” Bonner v. State, 899 So.2d 1212, 1213 (2nd DCA 2005) citing Williams v. State, 850 So.2d 627, 628 (2ndDCA 2003)(quoting C.S. v. State, 617 So.2d 863, 864 (1st DCA 1993). Hearsay evidence can used to determine amount of restitution unless the defendant properly objects to the hearsay evidence. See Flanagan v. State, 536 So.2d 275 (2ndDCA 1988).Where objected to, proof may not be based solely on hearsay. A.J. v. State, 677 So.2d 935 (4thDCA 1996). For example, the restitution amount cannot be based on the testimony of the victim to the effect of “a fellow estimated $430 to be the amount of damage to the victim's rental property.” Bonner.
In A.J. v. State, 677 So.2d 935 (4thDCA 1996) the victim’s mom testified to medical bills she incurred for treatment rendered to her son as a result of the defendant’s crime and identified the various bills as correct copies of bills she received. The court ruled that the bills were not hearsay. “Thus a witness' testimony that she received a medical bill and either made payment, part payment, or did not challenge it, is testimony concerning offer and acceptance, the words of a contract. Words of a contract, often characterized as verbal acts, are non-hearsay because they have independent legal significance - the law attaches duties and liabilities to their utterance.” “Well embedded in Florida law is the recognition that a fact finder may properly consider a medical bill with a minimal evidentiary foundation - that the witness received the bill for medical services related to the injury which is the subject of the litigation.” “In the cited cases, courts rejected the contention that, as a preconditionto the admissibility of the bills, it was necessary to introduce expert testimony that the charges reflected in them were reasonable and necessary. This approach to medical bills obviates the necessity of producing at trial a records custodian unless some evidence is introduced that the bill is faulty.”
“Where restitution is part of a plea bargain, it should be liberally construed in favor of making the victim whole.”Yaun v. State, 898 So.2d 1016 (4thDCA 2005)quoting Hercule v. State, 655 So.2d 1256, 1257 (3rdDCA 1995).
A victim, as owner of the property is qualified to testify regarding the value of property stolen from him especially if the property is a family heirloom. See A.G. v. State, 718 So.2d 854 (4thDCA 1998); State v. Hawthorne, 573 So.2d 330 (Fl. 1992). Admission of repair bills is sufficient to establish restitution where agent testified that bills in question were kept in regular course of business and that he was F.B.I. records custodian. See Davis v. State, 707 So.2d 842 (2ndDCA 1998).
For purposes of determining the amount of restitution owed, the standard to be used is the fair market valuerather than the replacement cost.See Molter v. State, 892 So.2d 1115 (2ndDCA 2004); Walters v. State, 888 So.2d 150 (5thDCA 2004); J.F.H. v. State, 849 So.2d 1151 (5thDCA 2003). It is fair market value at the time of the theft. Garay v. State, 708 So.2d 631 (5thDCA 1998).In determining the fair market value the court considers the items purchase price, the manner in which the item was used, its condition, and depreciation. See Ibrahim v. State, 866 So.2d 749 (5thDCA 2004).
In Kiefer v. State, 2005 WL 2104605 (5thDCA 9-2-05) the defendant appealed the restitution award amount. The state cross appealed on the issue that the court determined the amount of restitution by depreciating the value of each item by fifteen percent. The 5thDCA found substantial competent evidence to support the award of restitution. As to the state’s cross appeal, the court found that the state’s argument was not preserved for appeal but went on to state that depreciation is a factor that the trial court can consider in establishing the amount of restitution. To do so however, there must be sufficient evidence to support application of the depreciation rate applied.
The trial court has discretion to take into account any appropriate factor in arriving at a fair amount which will adequately compensate the victim for his or her loss. The trial court is not tied to fair market value as the sole standard for determining restitution amounts, but rather may exercise such discretion as required to further the purposes of restitution. Hercule v. State, 655 So.2d 1256 (3rdDCA 1995) citing State v. Hawthorne, 573 So.2d 330 (Fl. 1992).
Florida Statute 924.07(1)(k) provides that : The state may appeal froman order denying restitution under 775.089.
However, section 924.051(3), provides: An appeal may not be taken from a judgment or order of a trial court unless a prejudicial error is alleged and is properly preserved or, if not properly preserved, would constitute fundamental error. A judgment or sentence may be reversed on appeal only when an appellate court determines after a review of the complete record that prejudicial error occurred and was properly preserved in the trial court or, if not properly preserved, would constitute fundamental error.
In State v. Shinall, 899 So.2d 1219 (1stDCA April 20, 2005), although not specifically authorized by statute, the 1st DCA recognized the state’s right to appeal an order denying restitution where the challenge was to the sufficiency of a restitution order, where the court made no verbal findings as to it’s decision denying restitution.
Where restitution has been made a condition of probation and the defendant fails to make restitution, probation can file a violation of probation affidavit. In order for the court to find a violation, the court will have to find that the defendant willfully violated. The burden is on the state to show by the greater weight of the evidence that a probationer has willfully and substantially violated her probation. See Hines v. State, 789 So.2d 1085 (2nd DCA 2001).
In Stephens v. State, 630 So.2d 1090 (Fl. 1994) the Court held that “before a person on probation can be imprisoned for failing to make restitution, there must be a determination that that person has, or has had, the ability to pay but has willfully refused to do so.” This is true even where the defendant agreed to make restitution as part of a plea agreement.
When the violation is for failure to pay restitution or costs, the State must present evidence of the probationer’s ability to pay to demonstrate willfulness. See Robinson v. State, 773 So.2d 566 (2ndDCA 2000); Edwards v. State, 892 So.2d 1192 (5thDCA 2005). Additionally, as stated in Osta v. State, 880 So.2d 804(5thDCA 2004): “Although a plain reading of the statute appears to place the burden of proving ability to pay restitution on the probationer, our courts have held that in order to revoke probation for failure to pay restitution the burden is on the State to prove the “willfulness” of the violation, and in order to prove “willfulness” the State must provide evidence that the probationer has the ability to pay restitution but willfully refuses to do so.”
The trial court must also set forth the payment plan or give a full payment due date which is prior to the expiration of the probationary period. The trial court cannot delegate to a probation officer the duty of formulating a restitution payment schedule. See Fichera v. State, 688 So.2d 453 (1stDCA 1997) and cases cited therein. See also Mayer v. State, 632 So.2d 678 (5thDCA 1994).
In the violation proceeding the state must establish the defendant’s gross and net income are and his expenses in order to establish that the defendant has the ability to pay restitution. See Mabry v. Florida Parole Com'n.,891 So.2d 1164 (2ndDCA 2005).
Where the defendant cannot pay nor has paid, F.S. 960.292 and F.S. 775.089(3) recognize the use of a restitution lien.
In Kirby v. State, 863 So.2d 238 (Fla. 2003) the defendant was charged with driving under the influence causing injuries and was also the defendant in a civil suit as a result of the accident. In consideration of the payment by Kirby's insurance company of $25,000 - the insurance policy limits, the victim and Kirby entered into a settlement agreement in the civil case which released Kirby of any liability that may have resulted from the accident. Subsequent to the entry of the civil settlement agreement, the defendant went to trial and was convicted.
The State requested restitution for the victim’s out-of-pocket medical expenses, deductibles, and lost wages that exceeded the $25,000 received pursuant to the settlement agreement. Kirby argued that since the settlement agreement contained a release of liability, restitution was not appropriate. The trial court denied restitution based on the release. The Fifth District reversed the trial court and held that “[t]he settlement between the victim and the defendant in a civil proceeding did not bar the state from seeking restitution.” The Florida Supreme Court ruled that a settlement and release of liability by the victim of “any and all claims” against the defendant executed prior to the disposition of the criminal case does not preclude an order of restitution in the criminal case.
“The criminal sanction of restitution and the civil remedy of damages further distinct societal goals…. a civil claim for damages is a method for the orderly resolution of a dispute between the defendant and the victim. Unlike a civil claim for damages, the purpose of restitution is twofold: (1) to compensate the victim and (2) to serve the rehabilitative, deterrent, and retributive goals of the criminal justice system.”
The Court further stated, “…we note that section 775.089(8) contemplates the coexistence of criminal restitution and a civil recovery. See State v. Williams, 689 So.2d 1233, 1234 (2ndDCA 1997).The statute provides that the amount of restitution shall be set off against any civil recovery, reflecting the Legislature's recognition that although the restitution obligation is primary, the victim should not receive a double recovery. Although section 775.089(8) assumes that restitution will precede a civil recovery… the sequence is not determinative.” “[t]he amount of the settlement will be a relevant factor for the trial court to consider in determining the amount of restitution so as to prevent a double recovery, which would be contrary to section 775.089(8).” Kirbyat 244. See also State v. Hitchmon, 678 So.2d 460 (3rdDCA 1996) (It is not permissible to deny restitution because the victim intends to file, or has actually filed, a civil lawsuit for the same loss. In the event of a civil recovery the defendant is to receive credit for restitution amounts actually paid).
Where a victim has been compensated for the loss by his insurance company, the defendant can be ordered to pay restitution to insurers that became subrogated to rights of the victims. See Warzybok v. State, 505 So.2d 507 (2ndDCA 1987);
Longo v. State, 580 So.2d 212 (4thDCA 1991) (reversed on other grounds).
“[T]he argument that the insurance company is not entitled to restitution is meritless…” “The thought that a perpetrator should escape paying for his act simply because he chose a victim with insurance is without logic. An insurance company is subrogated to the rights of a victim.” L.S. v. State, 593 So.2d 296 at 297 (5thDCA 1992).