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

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