Kirby v. State

• Decision Date: 09 October 2003
• Docket Number: No. SC02-1511.,SC02-1511.
• Citation: 863 So.2d 238
• Parties: Gary Kent KIRBY, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

863 So.2d 238

Gary Kent KIRBY, Petitioner, v. STATE of Florida, Respondent.

No. SC02-1511.

Supreme Court of Florida.

October 9, 2003.

James B. Gibson, Public Defender, and Lyle Hitchens, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Petitioner.

Charles J. Crist, Jr., Attorney General, and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, FL, for Respondent.

PARIENTE, J.

We have for review State v. Kirby, 818 So.2d 689 (Fla. 5th DCA 2002), which expressly and directly conflicts with State v. Vandonick, 800 So.2d 239 (Fla. 2d DCA 2001), on the issue of whether a settlement and release of liability between a victim and a defendant on a civil claim for damages prior to the disposition of a criminal case based on the same incident prohibits the trial court as a matter of law from ordering restitution.¹ Because civil settlements and criminal restitution are distinct remedies with differing considerations, we hold that a settlement and release of liability on a civil claim for damages between private parties does not prohibit the trial court from fulfilling its mandatory obligation to order restitution in the criminal case. For the reasons that follow, we approve the Fifth District's decision in Kirby, and disapprove the Second District's decision in Vandonick to the extent that it is inconsistent with this opinion.

FACTS

On November 20, 1999, police officer Gary Kent Kirby caused a traffic accident, generating both a civil claim for damages by the injured victim and a criminal prosecution against Kirby for driving under the influence resulting in serious bodily injury to another. On April 7, 2000,² independent of the criminal case, the victim and Kirby executed a settlement agreement. This written settlement agreement released Kirby of any liability that may have resulted from the November 20, 1999, incident. The consideration for the settlement was the payment by Kirby's insurance company of $25,000—the insurance policy limits.³

Kirby proceeded to trial in the criminal prosecution on February 23, 2001, and the jury found Kirby guilty of DUI with serious bodily injury as charged. The trial court adjudicated Kirby guilty and sentenced him to five years' probation, a downward departure from the permissible guidelines sentence of fifty-one months' incarceration. As justification for the downward departure, the trial court concluded that "the need for payment of restitution to the victim outweigh[ed] the need for a prison sentence" and that "the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse."⁴ The trial court ordered restitution, reserving jurisdiction to determine the amount.

The trial court subsequently held a restitution hearing. The State requested that the trial court award the victim restitution for the out-of-pocket medical expenses, deductibles, and lost wages that exceeded the $25,000 he received pursuant to the settlement agreement. Kirby opposed restitution based on the fact that the settlement agreement contained a release of liability. The State conceded that the settlement agreement contained a release of all liability, but argued that because the State was not a party to the agreement the victim could not prevent the State from exercising its statutory right to seek restitution. The trial court disagreed and denied restitution based on the release and the decision in Vandonick that the right to restitution is foreclosed by a settlement and release in a civil case. See Kirby, 818 So.2d at 690

.

On appeal, the Fifth District disagreed with the Second District's decision in Vandonick and agreed with the view expressed in Judge Northcutt's dissenting opinion in that case that, because restitution serves significant societal purposes other than compensating the victim, a sentencing court should not be bound by a civil settlement and release when the State was not a party to the transaction. See Kirby, 818 So.2d at 690

(citing to Vandonick, 800 So.2d at 240-41 (Northcutt, J., dissenting)). Accordingly, 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." Id. at 691.

ANALYSIS

The issue presented in this case is whether the victim and defendant may foreclose the trial court's obligation to impose restitution by entering into a settlement agreement that contains a release of liability in a civil action prior to the disposition of the criminal case involving the same incident. As this issue presents a pure question of law, we review it de novo. See Barnhill v. State, 834 So.2d 836, 843 (Fla.2002),

cert. denied, ___ U.S.___, 123 S.Ct. 2281, 156 L.Ed.2d 134 (2003); State v. Glatzmayer, 789 So.2d 297, 301-02 n. 2 (Fla.2001).

We begin with the language of Florida's restitution statute, which is the source of the trial court's authority to order restitution. Section 775.089, Florida Statutes (2002),⁵ states in relevant part:

(1)(a) In addition to any punishment, the court shall order 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,

unless it finds clear and compelling reasons not to order such restitution.... The court shall make the payment of restitution a condition of probation....

....

(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.

....

(8) ... 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.

(Emphasis supplied.)

Section 775.089(1)(a) requires the trial court to order a defendant to make restitution for damage or loss caused by the defendant's offense or related to the defendant's criminal episode unless the trial court finds clear and compelling reasons not to order restitution. See § 775.089(1)(a).⁶ When probation is imposed, the statute also requires the court to order restitution as a condition of probation. See § 775.089(1)(a)(2).⁷

In light of the statutory requirement that restitution be imposed, the legal question becomes whether 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 constitutes a clear and compelling reason not to order restitution as a matter of law. We conclude that it does not, because of both the unique purposes of restitution and the clear legislative intent as expressed in the restitution statute.

The criminal sanction of restitution and the civil remedy of damages further distinct societal goals. We have recognized that unlike civil damages, restitution is a criminal sanction. See Spivey v. State, 531 So.2d 965, 967 (Fla. 1988)

. In contrast, 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. See Glaubius v. State, 688 So.2d 913, 915 (Fla.1997); Spivey, 531 So.2d at 967.

Consistent with this twofold purpose of restitution, we have recognized that "[w]hile the victim's wishes concerning restitution are relevant, they are not dispositive—it is the judge, not the victim, who must weigh society's competing needs." Banks v. State, 732 So.2d 1065, 1069 (Fla.1999). To this end, we agree with the discussion in People v. Bernal, 101 Cal.App.4th 155, 123 Cal.Rptr.2d 622 (2002), regarding the distinctive purpose restitution serves in the criminal justice system compared to settlement agreements in civil cases:

Restitution is an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his actions have caused. Such a penalty will affect the defendant differently than a traditional fine, paid to the State as an abstract and impersonal entity, and often calculated without regard to the harm the defendant has caused. Similarly, the direct relation between the harm and the punishment gives restitution a more precise deterrent effect than a traditional fine.

While a settlement agreement with, and release of, a defendant's insurance company may reflect a victim's willingness to accept the amount paid in full satisfaction for all civil liability, it does not reflect the willingness of the People to accept that sum in satisfaction of the defendant's rehabilitative and deterrent debt to society. A restitution order pursuant to a defendant's plea is an agreement between the defendant and the state. The victim is not party to the agreement, and a release by the victim cannot act to release a defendant from his financial debt to the state any more than it could terminate his prison sentence.

Id. at 627 (citations, quotation marks, and footnotes omitted).

In addition to the distinct purposes served by restitution, 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 (Fla. 2d DCA 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...