State v. Childers

• Citation: 979 So.2d 412
• Decision Date: 23 April 2008
• Docket Number: No. 1D07-0230.,1D07-0230.
• Parties: STATE of Florida, Appellant, v. Wyon Dale CHILDERS, Appellee.
• Court: Florida District Court of Appeals

979 So.2d 412

STATE of Florida, Appellant, v. Wyon Dale CHILDERS, Appellee.

No. 1D07-0230.

District Court of Appeal of Florida, First District.

April 23, 2008.

Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee; John F. Simon, Jr., Assistant State Attorney, Pensacola, for Appellant.

Richard G. Lubin and Tama Beth Kudman, West Palm Beach, for Appellee.

WEBSTER, J.

The state seeks review of an order denying restitution for losses it claims were "directly caused" as the result of appellee's bribing a fellow county commissioner so that appellee might obtain a majority vote to purchase a 48-acre parcel of real property known as the soccer complex. The state's sole argument is that the trial court's order is not supported by competent substantial evidence and that, therefore, the order constitutes an abuse of discretion. Having carefully reviewed the record, we conclude that the trial court's order is amply supported by the evidence and, therefore, does not constitute an abuse of discretion. Accordingly, we affirm.

Following a jury trial, appellee, an Escambia County Commissioner, was convicted of bribery and unlawful compensation or reward for official behavior in connection with a scheme to have the Escambia County Commission purchase the soccer complex property. We subsequently affirmed those convictions; reversed the trial court's ruling that the county was not a "victim" for purposes of section 775.089, Florida Statutes (2002), and as a result was not entitled to restitution; and remanded so that the state might have an opportunity to prove that the county had suffered a loss as the result of appellee's crimes, and the amount of any such loss. Childers v. State, 936 So.2d 585 (Fla. 1st DCA) (en banc), review denied, 939 So.2d 1057 (Fla.2006).

On remand, the trial court held a restitution hearing, at which considerable testimony was presented and evidence offered. The state contended that, as the victim, Escambia County was entitled to restitution consisting of the difference between what the county had paid for the property and what it received when it sold the property ($1,090,706.50), plus costs attributable to maintaining the property and having it appraised ($33,524.02). Appellee countered that the property was sold for less than its fair market value and that, had it instead been sold for what it was worth, the county would have netted a profit rather than a loss. Both the state and appellee presented testimony from real property appraisers regarding the value of the soccer complex property. As anybody who has had any appreciable exposure to eminent domain proceedings knows, real property appraisal is an art, not a science. In eminent domain proceedings, the differences in value asserted are frequently great, and the outcome usually turns on which of two or more property appraisers the jury finds to be more credible. This is precisely what occurred in this case.

The state presented the appraiser who had appraised the property when the county decided to sell it. He testified that, in his opinion, the property was worth only $2,450,000. Based on that appraisal, the county had sold the land for $2,925,000. Appellee's appraiser, on the other hand, testified that, in his opinion, the county's appraiser's valuation was low. He believed that, had the county been patient, it could have sold the property for much more — perhaps as much as $7,000,000.

The trial court subsequently denied the request for restitution, concluding that any loss sustained by the county had not been "caused by [appellee's] criminal activities" but, rather, that "the more persuasive evidence is [that] the [c]ounty did not take advantage of traditionally accepted measures to get the highest bid on resale. If it had done so, the evidence indicates it very likely could have made a profit, perhaps a substantial one, on the conveyance." This appeal follows.

For purposes of restitution, the burden rests with the state to prove the amount of the victim's loss by the greater weight of the evidence. § 775.089(7), Fla. Stat. (2007); Koile v. State, 902 So.2d 822, 824 (Fla. 5th DCA 2005). Moreover, "[r]estitution must be proved by substantial competent evidence." Koile, 902 So.2d at 824 (citations omitted). Finally, as a general matter, the standard of review for a restitution order is abuse of discretion. Johnson v. State, 942 So.2d 415, 416 (Fla. 2d DCA 2006).

It is apparent from the transcript of the hearing that the trial court listened closely to the testimony. It is, likewise, apparent that the trial court's order was based upon its conclusion that the state had failed to prove that the county had lost any amount because of appellee's crimes. This conclusion is equally clearly based on the trial court's implicit finding of fact that appellee's appraiser's testimony regarding the value of the property was more persuasive, and that, based upon that testimony, the county had not lost anything on account of appellee's crimes. Rather, it is clear that the trial court concluded, again based on that testimony, that the county's loss was attributable to poor business judgment. Our reading of the transcript satisfies us that the trial court's factual findings are amply supported by the evidence. Such being the case, the trial court's holding cannot possibly constitute an abuse of discretion. See Trease v. State, 768 So.2d 1050, 1053 n. 2 (Fla.2000) (quoting Huff v. State, 569 So.2d 1247, 1249 (Fla.1990), for the proposition that "[d]iscretion is abused only `when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable [person] would take the view adopted by the trial court'"). Accordingly, we affirm.

AFFIRMED.

PADOVANO, J., concurs; HAWKES, J., dissents with written opinion.

HAWKES, J., Dissenting.

I believe the majority mischaracterizes both the State's argument and the trial court's order. Accordingly, I must dissent.

The State made two arguments on appeal. Contrary to the majority's assertion, both were issues of law, and neither is addressed by the majority opinion.

First, the State correctly argued the basis upon which the trial court denied restitution, i.e., the County "did not take advantage of traditionally accepted measures to get the highest bid on resale," was not supported by law or fact. What the phrase "traditionally accepted measures" means is unknown. The phrase is not defined by the trial court, the majority, or Florida case law, and is certainly devoid of statutory support.

Evidently, the County could have made a "substantial"...