Koile v. State
| Decision Date | 07 January 2005 |
| Docket Number | No. 5D04-91.,5D04-91. |
| Citation | 902 So.2d 822 |
| Parties | Timothy Thomas KOILE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James S. Purdy, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.
After the commencement of his trial for first degree murder, Timothy Koile, the appellant, pled no contest to second degree murder pursuant to a plea bargain in which he agreed to a specific incarcerative sentence, followed by probation, and in which he agreed further to pay restitution in an unstipulated amount. The trial court thereafter presided over a hearing on the amount of restitution to be assessed, and later entered an order requiring Mr. Koile to pay restitution totalling more than $2,000,000. The only issues raised by Mr. Koile on appeal concern the assessment of restitution. We affirm in part, and reverse in part.
At the restitution hearing the victim's father, Patrick Cousins, testified that he had incurred a number of expenses, many of which are not contested, that resulted from his son's murder. Among the uncontested expenses, for example, were funeral and burial costs. He also testified, however, that he elected to attend the three-week trial of Mr. Koile, and that as a result, he lost income of about $12,000. He admitted that he only testified at the trial on a single day. The victim's mother, Roseanne Cousins, indicated that she lost $1,500 in wages during the three-week trial period, and likewise related that she only testified on a single day of the trial. She testified, as well, that a wrongful death suit had been brought, and was still pending against Mr. Koile and his co-defendant, who was the wife of the murder victim.
In addition, the State also presented evidence on behalf of the victim's estate concerning the loss of future income of the victim. It appears that the victim had been a first officer with Air Jamaica, and was compensated with a salary of $87,988 per year. He was expected to be promoted to captain in the future, at which time he would earn $156,882 per year. There was also testimony presented concerning the airline's mandatory retirement plan and pension contributions. To prove up the lost future earnings of the victim, the State called a certified public accountant, who testified that the victim's future income was $3,322,743, assuming his promotion to captain, and assuming that he worked until age 60.
The trial judge took the matter under advisement, and later rendered a written order assessing restitution against Mr. Koile and his co-defendant, jointly and severally. The court awarded the victim's father all of his lost wages for the three week period of the trial, as well as certain other expenses associated with the trial, and awarded the victim's mother all of the $1,500 lost wages that she sought. In addition, the trial judge calculated that the estate of the victim suffered damages or losses in the amount of $2,042,126, which represented the present value of lost future earnings, without engaging in the assumption that the victim would be promoted to captain. The trial judge evidently used the formula testified to by the certified public accountant in order to make this calculation, but made no deductions for living expenses or such things as income taxes that the decedent would have incurred. Mr. Koile timely appealed the restitution order. We address in this appeal the issues of whether it was appropriate to assess as restitution the lost wages of the decedent's parents while attending trial, and the lost future earnings of the decedent.
We review restitution orders using an abuse of discretion standard. See Ashton v. State, 790 So.2d 1115, 1117 (Fla. 5th DCA 2001). The burden of proving the amount of restitution is on the State, and the amount must be proved by a preponderance of the evidence. See § 775.089(7), Fla. Stat. (2001); Santana v. State, 795 So.2d 1112 (Fla. 5th DCA 2001). Restitution must be proved by substantial competent evidence. See Sparkman v. State, 445 So.2d 1115 (Fla. 2d DCA 1984).
The State asserts that based on its reading of the restitution statute, the awards were lawful. Section 775.089, Florida Statutes (2003), the statute governing restitution as a condition of probation, states in pertinent part that:
(Emphasis added).
For restitution to be deemed reasonable, it must bear a significant relationship to the offense of which the defendant is convicted. See L.H. v. State, 803 So.2d 862, 863 (Fla. 4th DCA 2002). One factor to be considered in this regard is whether there is a causal connection between the criminal conduct and the loss claimed by the victim. Id. Before ordering restitution, therefore, the trial court must find that the loss or damage is causally connected to the offense, either directly or indirectly, and bears a significant relationship to the offense. See Bernard v. State, 859 So.2d 560, 562 (Fla. 5th DCA 2003). The causation and significant relationship tests work in conjunction with, and not independently of, each other. Id. In this connection this Court has previously held that lost wages may provide a sufficient basis for a restitution award. See Graham v. State, 720 So.2d 294, 294 (Fla. 5th DCA 1998); see also Hollingsworth v. State, 835 So.2d 373 (Fla. 1st DCA 2003).
Consider, first, whether the statute permits an award of lost wages to the parents of the decedent. The definition of victim contained in the statute specifically includes the victim's next of kin. The statute further relates that when there is bodily injury to a victim, "the victim" may be reimbursed for "income lost by the victim as a result of the offense." The State argues that because Article I, section 16(b) of the Florida Constitution gives the next of kin of victims of crime the right to be present at all crucial stages of criminal proceedings, there is an inference that the lost wages of the next of kin in attending the trial is an economic loss directly attributable to the crime, and that restitution for this loss is proper. That argument, however, makes an illogical leap.
Having a right to attend a trial does not necessarily imply a right to be reimbursed by a criminal defendant for one's voluntary attendance. Moreover, for restitution to be deemed reasonable, it must bear a significant relationship to the offense of which the defendant was convicted. See L.H., 803 So.2d at 863. As we have noted, a factor in determining whether a significant relationship exists is whether there is a causal connection between the criminal conduct and the loss claimed by the victim. Id. Thus, before ordering restitution, the trial court must find that the loss or damage is both causally connected to the offense, and bears a significant relationship to the offense. See Bernard, 859 So.2d at 562. We have held in the past that in certain circumstances lost wages may provide a basis for a restitution award. See Graham, 720 So.2d at 294; see also Hollingsworth. In the present case, however, we do not discern the "significant relationship" between the underlying criminal offense, and the attendance at trial of what is unquestionably a very interested spectator, in the absence of a statute authorizing such an award.
Two cases involving restitution in the juvenile justice context are instructive in this regard. In J.S. v. State, 717 So.2d 175 (Fla. 4th DCA 1998), the Fourth District Court of Appeal held that wages lost by the direct victims of an offense as a result of their attendance at court proceedings did not bear a significant relationship to the underlying criminal offense. The victims in J.S., testified that they had to take three days off, one for a deposition, one for trial, and one for the restitution hearing. The trial court awarded $480.00 for lost wages. The juvenile challenged this award, arguing that Chapter 39 does not authorize the award of lost wages because of a victim's compliance with the demands...
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