How Do Trial Courts Still Get Restitution Wrong?

By: Adam L. Bantner, II

Board Certified Criminal Trial Attorney

Somehow, Florida courts continue to get restitution wrong. My guess is that this stems from the fact that judges will typically rotate amongst the various benches, i.e, criminal, civil, family, probate, traffic, etc., and that various legal principles will bleed into an area of the law where it simply does not belong.

For example, in courts of equity, the judge has the power to do what it takes to make a situation fair. Of course, they are constrained by various statutes and case law, but they typically will have a lot of discretion to make a situation “right.” However, with regards to any amount of restitution owed to a victim, the law is pretty clear.

The Restitution Statute, Fla. Stat. 775.089

Fla. Stat. 775.089 states: “…the defendant to make restitution to the victim for: 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.

This language has been interpreted as, typically, setting fair market value as the appropriate measure of restitution. State v. Hawthorne, 573 So. 2d 330, 333 (Fla. 1991). Additionally, restitution is not intended to provide a victim with a windfall. Rodriguez v. State, 956 So. 2d 1226, 1232 (Fla. 4th DCA 2007) Therefore, restitution may not exceed the damage caused by the defendant’s criminal conduct.

Restitution Should Not be Used to Pay Off a Loan Balance

With the aforementioned law of criminal restitution mentioned above, the heading for this section should be self-explanatory. However, a Duval County trial judge held that a criminal defendant was liable to the victim for the entire balance of her vehicle loan and not just the fair market value of her vehicle. As I indicated in the opening, I think the judge did what she believed was fair and, unfortunately, failed to follow the law. After all, who wants to continue making payments on a totaled vehicle? Fortunately, though, the First DCA corrected that error in Tolbert v. State, No. 1D17-3240 (Fla. 1st DCA 2019).

Tolbert was convicted of stealing his ex-girlfriend’s vehicle. Prior to his arrest, he totaled the vehicle fleeing from law enforcement. The victim bought the vehicle for $14,000 and still owed over $14,000 at the time of the loss. Insurance paid off approximately $3,000 of the balance. Testimony at the restitution hearing set the value of the vehicle $6,100. However, the trial court set the restitution amount at almost $12,000 (the difference between loan balance and insurance payout).

This “solution” would have gave the victim a windfall that is clearly not contemplated by the statute. As the concurrence so ably put it, “And if the victim lost a $6,000 car and got $6,000 in restitution, she could acquire another $6,000 car. That would leave the victim just where she began: with a $6,000 car and a $12,000 loan. In other words, the restitution award would cover her “damage or loss.” If, on the other hand, the victim got the value of her car plus the unsecured portion of her loan (roughly $12,000) and bought a $6,000 car, she would come out $6,000 ahead.”

The law in this area is fairly well-settled and I’m amazed that trial judges still get this wrong. Fortunately, Tolbert’s able attorneys and the First DCA were able to fix this mistake.

Tampa Restitution Attorney

If you find yourself dealing with restitution as part of your criminal case, give The Bantner Firm a call today! We offer free consultations with board certified criminal trial law attorney Adam Bantner. 813.397.3965

We pray that you never need us, but we’re here for you when you do!

You Can Tell a Cop “No” (In Some Circumstances)

By: Adam L. Bantner, II

Board Certified Criminal Trial Attorney

While it’s not always a smart move, legally speaking, you don’t always have to obey the commands of a law enforcement officer. Whether to exercise this right, as with many things, is a discretionary choice and, in most circumstances, it is wise to simply comply.

However, law enforcement sometimes will make unreasonable and illegal requests. In such circumstances, it is perfectly legal to simply walk away and to ignore those commands. Now, that may still get you arrested and you may still have to the best attorney you can to get you out of the pickle (we recommend the The Bantner Firm), but you should eventually be vindicated in your actions.

Resisting an Officer With Violence

Let’s get the easy one out of the way first; it is almost never legal to resist an officer with violence. If an officer is engaged in any legal duty at all, you cannot resist that command, order, arrest, etc. with violence. Even if the arrest is illegal and not based on probably cause, you cannot resist that arrest with violence. Fla. Stat. 843.01 makes resisting with violence a third-degree felony punishable by up to five years in prison. Additionally, it goes without saying that resistance with violence will greatly enhance your chance of getting injured or killed. Just don’t do it.

Resisting an Officer Without Violence

In order to convict a defendant of resisting, obstructing, or opposing an officer without violence pursuant to Fla. Stat. 843.02 the State must prove:

  • (1) The officer was engaged in the lawful execution of a legal duty; and
  • (2) The actions of the defendant resisted, obstructed, or opposed the officer in the performance of that legal duty.

“Legal duty”, as contained in the first element above, includes “(1) serving process; (2) legally detaining a person; or (3) asking for assistance in an emergency situation, or (4) impeding officers’ undercover activities by acting as a ‘lookout’ during the commission of a criminal act.” There is a difference between an officer who is engaging in the lawful execution of a legal duty, and a police officer who is merely on the job. McCollough v. State, FLWSUPP 2612MCCU, (Fla. 10th Cir. Ct. 2017) (internal citations omitted).

McCollough v. State

You may be asking yourself why a blog post on resisting an officer without violence has a picture of a cute kid on the shoulders of her father. Well, in McCollough, the defendant was arrested for resisting without violence for refusing to take his child off of his shoulders at the direction of law enforcement.

Again, this is one of those situation where it probably would have been better to simply take the child down but, the father was perfectly within his rights to refuse to do so. Here’s why:

McCollough was exercising his court-ordered supervised visitation. The supervisors suspected McCollough was about to walk-off with his child. The supervisors alerted law enforcement and they responded to investigate a possible child abduction. However, it was quickly ascertained that an abduction was not occurring or about to occur. At that point, any legal duty of investigation had been concluded.

However, tensions were still relatively high and McCollough was in an agitated state. The officers requested that McCollough put the child down out of fear that the child would fall off his shoulders; but there wasn’t any evidence that they child was in any sort of real danger of an injury occurring. McCollough refused to put the child down and the officers then forced him to do so and arrested McCollough. Only in Polk County.

The appellate court held that “[I]f the instructions (orders) occurred after the officers were aware that no criminal activity was taking place, then Appellant was not detainable and could walk away from the officers. In other words, once any reasonable suspicion of a crime had been eliminated, there was no valid reason to detain the Appellant. At that point, the officers were merely “on the job” and not “performing a legal duty””. As such, the court ruled that the trial court should have granted the motion for judgment of acquittal and dismissed the case. It reversed and remanded the case for the conviction to be set aside and a judgment of acquittal to be entered.

Polk County Criminal Defense Attorney

If you find yourself or a loved one on the wrong side of the law, give board certified criminal trial attorney Adam L. Bantner, II a call today. You can reach us at 813.397.3965 to set up your free consultation at either our Brandon or Tampa office.