BM v. State

• Decision Date: 17 September 1999
• Docket Number: No. 98-2437., No. 98-1883
• Parties: B.M., a child and Warren and Catherine Miller, parents of B.M., a child, Appellants, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

744 So.2d 505

B.M., a child and Warren and Catherine Miller, parents of B.M., a child, Appellants, v. STATE of Florida, Appellee.

Nos. 98-1883, 98-2437.

District Court of Appeal of Florida, Fifth District.

September 17, 1999.

Richard S. Jackson, DeLand, for Appellants.

Robert A. Butterworth, Attorney General, Tallahassee, and Alfred Washington, Jr., Assistant Attorney General, Daytona Beach, for Appellee.

GRIFFIN, J.

B.M., a child, and W.M. and C.M., parents of B.M., appeal a restitution order in the amount of $135,523.62. Case numbers 98-1883 and 98-2437 have been consolidated for purposes of appeal.

On November 3, 1997, B.M. and four other minor co-defendants, T.F., T.K., M.K., and D.V., broke into the home of the victim, Lucian Smith, stealing several items of personal property, including a firearm, and vandalizing the contents of the home, believing it to be abandoned by a drug dealer. B.M. and his co-defendants attempted to "hot-wire" a Porsche in the adjacent garage, causing a fire which destroyed the vehicle, garage, and a significant portion of the home.

The State filed a petition for delinquency charging B.M. with burglary of a dwelling and second degree arson. After B.M. pled no contest, the court withheld adjudication and ordered community control. The court then conducted a single restitution hearing, with each child's parents and all but one of the co-defendants present.

At the hearing, the victim testified that the total loss sustained to the garage, home, and its contents amounted to $135,523.62. He based his testimony upon a loss estimate prepared by Charles W. Tutweiler & Associates, Inc., licensed public adjusters, whom he had hired to assist in the filing of a claim with his property insurer. Mr. Smith testified that, although he assisted the adjusters in identifying the losses, he was unaware of the actual procedure utilized by the adjusters to prepare the proposal and to account for depreciation or fair market and replacement values. After Smith's testimony and argument of counsel, the court sua sponte ordered the loss proposal into evidence without objection and accepted the victim's estimate of loss as the amount of restitution.

After testimony from B.M. and his parents regarding their ability to pay restitution, the court ordered B.M. jointly and severally liable with his co-defendants for $71,921.00 in restitution and B.M.'s parents jointly and severally with the other parents for the remaining $63,603.62. The court reserved jurisdiction on the amount of payments.

On August 11, 1998, the court entered a written restitution order. The order, however, reversed the amounts owed by the children with the parents, ordering B.M. responsible for $63,602.62, and B.M.'s parents jointly and severally liable for $71,921.00. Additionally, the written order provided that "in the event, however, that either party shall fail to make payment for this amount, the child shall be liable for the full amount."

On appeal, B.M. contends that the trial court erroneously ordered restitution, claiming that the State offered insufficient evidence of the amount of the victim's loss. Specifically, B.M. argues that the loss proposal relied upon by the trial court constituted inadmissible hearsay. Neither B.M., nor his co-defendants, however, objected below on hearsay grounds. Moreover, B.M.'s counsel and counsel for the co-defendants cross-examined the victim at length about the loss figures derived from the proposal. The only objection lodged below was that the victim did not establish the fair market value of his loss. This court has recently held that B.M.'s co-defendant, T.F., cannot complain of the identical issue on appeal for lack of preservation in the trial court. T.F. v. State, 734 So.2d 601, 1999 WL 445717 (Fla. 5th DCA 1999). See also Tillman v. State, 471 So.2d 32, 35 (Fla.1985)

; J.C. v. State, 722 So.2d 982, 983 (Fla. 5th DCA 1999). If the loss proposal were objectionable on hearsay grounds, equivalent competent evidence was likely available to establish the amount of the loss had the objection been made.

B.M., unlike his co-defendant, T.F., relies on the supreme court's holding in State v. T.M.B., 716 So.2d 269 (Fla.1998), for the proposition that the contemporaneous objection rule does not apply to this case. This court, however, has recognized that restitution hearings, unlike typical sentencing hearings, are adversarial proceedings in which counsel has the opportunity to cross-examine and lodge appropriate objections, and accordingly, defendants should not be entitled to complain of errors for the first time on appeal. Mitchell v. State, 664 So.2d 1099 (Fla. 5th DCA 1995). In Mitchell, this court expressly rejected the argument that State v. Rhoden, 448 So.2d 1013 (Fla.1984), applied to restitution cases, finding that the right to appeal the inclusion of an item of restitution requires a contemporaneous objection:

That reasoning [Rhoden] would not apply in the instant case. Mitchell was represented by counsel at the restitution hearing, and the victim testified and was cross-examined by defense counsel. The court's decision was announced at the hearing. Due process was fully afforded to Mitchell and he should not have the privilege of complaining for the first time on appeal. The restitution ordered is in the nature of a civil judgment, and, had the amount been determined in a civil trial without objection, a civil litigant would have no remedy on appeal. There is no reason to give a criminal defendant more rights regarding restitution than a civil litigant. (Footnote omitted).

Mitchell, 664 So.2d at 1100. Recently, the fourth district, in J.S. v. State, 717 So.2d 175 (Fla. 4th DCA 1998), held that a finding of no preservation of error in a juvenile restitution proceeding is not in conflict with the supreme court's holding in T.M.B. that the Criminal Reform Act does not apply in juvenile cases.

B.M. next contends that the trial court abused its discretion in finding that he had the ability to pay the amount of restitution in light of the fact that at the time of the restitution hearing he was a seventeen year old senior in high school expecting to attend Daytona Beach Community College to study business administration, hoping to own a surf shop some day in the future, and immediately planning to obtain part-time employment paying approximately $6.00 an hour for about twenty hours a week. The trial court concluded below that B.M. had the ability to pay the restitution:

COURT: All right. Well, listening to the testimony, it's obvious that all of these kids, except for [M.K.], have the present ability to obtain and maintain employment ... Obviously they're all in good health, physically and mentally, and there's no reason that they can't do neighborhood jobs, even if there weren't a decision made to maintain regular employment.

Also, that they all have significant positive plans for the future that are going to put them in positions to earn good livings and to make restitution.

* * *

In regards to [T.F.] and in regards to [T.K.] and in regards to [B.M.], I find that the children have the ability to make restitution in the amount of $71,921, and the parents will pay the remainder.

Section 985.231(1)(a)1.a., Florida Statutes (1997), provides in pertinent part that a court that has jurisdiction of an adjudicated delinquent child may order restitution, but "the amount of restitution may not exceed an amount the child and the parent or guardian could reasonably be expected to pay or make." On the other hand, when a child is placed on community control section 985.231(1)(a)6. applies and provides in pertinent part that:

6. As a part of the community control program to be implemented by the Department of Juvenile Justice, or, in the case of a committed child, as part of the community-based sanctions ordered by the court at the disposition hearing or before the child's release from commitment, order the child to make restitution in money, through a promissory note cosigned by the child's parent or guardian, or in kind for any damage or loss caused by the child's offense in a reasonable amount or manner to be determined by the court. (Emphasis added).

This court has recently affirmed the trial court's ruling that B.M.'s co-defendant, T.F., a seventeen-year-old high school graduate planning to attend Seminole Community College to get an electrician's license and looking for part-time work, has the ability to pay restitution. T.F. v. State, 734 So.2d 601 (Fla. 1999)("The evidence shows the appellants have the ability, each of them, to make the money to pay the damages over time").¹ We find no error.

B.M.'s final contention that the trial court's written restitution order failed to comport with the court's oral ruling has merit. At the restitution hearing, the court ordered B.M., T.F., and T.K. jointly and severally liable for $71,921.00 in restitution, and the parents of the co-defendants liable for the remaining $63,602.62 of the total restitution award of $135,523.62. The written restitution order, however, reversed the amounts owed by the children with the parents, ordering the children responsible for $63,602.62, and the parents joint and severally liable for $71,921.00. Additionally, the written order provided that "in the event, however, that either party shall fail to make payment for this amount, the child shall be liable for the full amount." Despite the State's assertions to the contrary, the transcript reveals that such a ruling was not expressed by the trial court. These errors require correction.

B.M.'s parents contend for the first time on appeal that the restitution order should be reversed since they were not afforded reasonable notice and an opportunity to be heard. The parents concede that they received notice of the restitution hearing but complain that they were not informed that liability could be imposed upon them as a result of B.M.'s acts.

Section 985.231(1)(a)1...