Ritch v. State, No. 1D08-0079.

CourtCourt of Appeal of Florida (US)
Writing for the CourtBenton
Citation14 So.3d 1104
PartiesMichael RITCH, Appellant, v. STATE of Florida, Appellee.
Docket NumberNo. 1D08-0079.
Decision Date12 June 2009
14 So.3d 1104
Michael RITCH, Appellant,
v.
STATE of Florida, Appellee.
No. 1D08-0079.
District Court of Appeal of Florida, First District.
June 12, 2009.
Rehearing Denied July 24, 2009.

[14 So.3d 1105]

Nancy A. Daniels, Public Defender, and Barbara J. Busharis, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.

BENTON, J.


Michael Lewis Ritch appeals an order of the trial court requiring him to make restitution to his former employer, Columbia Grain & Ingredients, Inc. (Columbia Grain), in the amount of $22,152.95. Because this amount lacks substantial support in competent evidence adduced at the restitution hearing, we reverse with directions to substitute the lesser sum that the evidence did establish. We decline to give a judgment, entered in a civil lawsuit to which the state was not a party, preclusive collateral effect.

Charged with theft (of property worth more than $300 but less than $5,000), Mr. Ritch entered a plea of guilty to dealing in stolen property between October 20, 2005, and January 7, 2007, in violation of section 812.019(1), Florida Statutes (2005). The state then announced it would nolle prosequi the grand theft charge.1 At the restitution hearing, Mr. Ritch testified that on five or six occasions (in the course of the last of which he was apprehended), he loaded a trailer for one Mario Alonso with soybean meal that belonged to Columbia Grain (in exchange for $300 per load,

14 So.3d 1106

which he pocketed). He put the value of a trailer load of soybean meal at approximately $1,500, and no other evidence suggested a higher value.2

Henry Ward testified that a civil action against Messrs. Ritch and Alonso resulted in a judgment in favor of Columbia Grain in the amount of $22,152.95. Mr. Ward testified that the business normally experiences some loss of grain or "shrinkage" as a result of spillage and spoliation. During the pertinent time period, he testified, the business experienced shrinkage in excess of its historical average for soybean meal. The figure of $22,152.95 was derived by multiplying the "excess shrinkage" of soybean meal by the lowest cost for soybean meal during that period.3 The trial court eventually ordered restitution in this amount, after granting a Florida Rule of Criminal Procedure 3.800(b)(2) motion challenging the amount initially ordered.4

The state has the burden to show that a defendant's criminal episode or offense caused the victim's loss, directly or indirectly. § 775.089(7), Fla. Stat. (2005). It is not enough to show merely that a business suffered losses contemporaneously with employee theft. See Strickland v. State, 685 So.2d 1365, 1366 (Fla. 2d DCA 1996). The defendant in Strickland, a waitress at a restaurant, had control tickets totaling $631 in her personal possession, representing money for which she had not accounted to her employer. Id. at 1365. Upon her conviction, the state requested restitution based on the restaurateur's testimony that the difference between actual revenue during the time she worked as a waitress and the revenue that had been projected amounted to $23,444. Id. at 1366. This testimony was held insufficient to meet the state's burden of proving that she was responsible for the entire shortfall in revenues. Id.

The amount of restitution must be based on more than speculation; it requires competent, substantial evidence. See Glaubius v. State, 688 So.2d 913, 916 (Fla.1997); State v. Childers, 979 So.2d 412, 414 (Fla. 1st DCA 2008). That is why convicted cattle rustlers were not required to make restitution for all of a victim's missing cattle, absent proof they had taken them all. See Crosby v. State, 637 So.2d 341, 343 (Fla. 2d...

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7 practice notes
  • Decisions and Orders:
    • United States
    • Federal Register October 03, 2011
    • October 3, 2011
    ...an adequate opportunity to litigate, the courts have not hesitated to apply res judicata * * *'')). \14\ Accord, e.g., Ritch v. State, 14 So.3d 1104, 1107 n.5 App. 1 Dist. 2009) (``Collateral estoppel bars relitigation of an issue only when (1) an identical issue was presented in the prior ......
  • Thomas v. Carvel, No. 09 Civ. 5083 (JSR)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 20, 2010
    ...that of New York. See, e.g., AMEC Civil LLC v. Fla. Dep't of Transp., 41 So.3d 235, 238-43 (Fla. 1st Dist.Ct.App.2010); Ritch v. State, 14 So.3d 1104, 1107 & n. 5 (Fla. 1st Dist.Ct.App.2009).We note that it is possible to interpret Florida's res judicata standard as employing a somewhat mor......
  • Gibson v. State, No. A12A2022.
    • United States
    • United States Court of Appeals (Georgia)
    • January 31, 2013
    ...of the proceeding, including sentencing. This includes any hearing to determine the amount of restitution. [Cits.]” Ritch v. State, 14 So.3d 1104, 1107 (Fla.Dist.Ct.App.2009). See also Bargeron v. State, 895 So.2d 385, 387 (Al.Crim.App.2004); State v. Guadagni, 218 Ariz. 1, 7, 178 P.3d 473 ......
  • D.D. v. State, No. 4D14-1495
    • United States
    • Court of Appeal of Florida (US)
    • August 19, 2015
    ...(internal quotation marks omitted). This means that "[t]he amount of restitution must be based on more than speculation." Ritch v. State, 14 So. 3d 1104, 1106 (Fla. 1st DCA 2009). "Generally, the amount of restitution is established through evidence of fair market value at the time of the t......
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6 cases
  • Thomas v. Carvel, No. 09 Civ. 5083 (JSR)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 20, 2010
    ...that of New York. See, e.g., AMEC Civil LLC v. Fla. Dep't of Transp., 41 So.3d 235, 238-43 (Fla. 1st Dist.Ct.App.2010); Ritch v. State, 14 So.3d 1104, 1107 & n. 5 (Fla. 1st Dist.Ct.App.2009).We note that it is possible to interpret Florida's res judicata standard as employing a somewhat mor......
  • Gibson v. State, No. A12A2022.
    • United States
    • United States Court of Appeals (Georgia)
    • January 31, 2013
    ...of the proceeding, including sentencing. This includes any hearing to determine the amount of restitution. [Cits.]” Ritch v. State, 14 So.3d 1104, 1107 (Fla.Dist.Ct.App.2009). See also Bargeron v. State, 895 So.2d 385, 387 (Al.Crim.App.2004); State v. Guadagni, 218 Ariz. 1, 7, 178 P.3d 473 ......
  • D.D. v. State, No. 4D14-1495
    • United States
    • Court of Appeal of Florida (US)
    • August 19, 2015
    ...(internal quotation marks omitted). This means that "[t]he amount of restitution must be based on more than speculation." Ritch v. State, 14 So. 3d 1104, 1106 (Fla. 1st DCA 2009). "Generally, the amount of restitution is established through evidence of fair market value at the time of the t......
  • Holt v. State, No. 1D15–4801.
    • United States
    • Court of Appeal of Florida (US)
    • November 14, 2016
    ...State, 746 So.2d 1241, 1242 (Fla. 1st DCA 1999). "The amount of restitution must be based on more than speculation...." Ritch v. State, 14 So.3d 1104, 1106 (Fla. 1st DCA 2009) ; see Bennett v. State, 944 So.2d 524, 526 (Fla. 4th DCA 2006) ("Guesstimates and speculative testimony are inappro......
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