State v. Hitchmon

• Decision Date: 14 August 1996
• Docket Number: No. 95-2064,95-2064
• Citation: State v. Hitchmon, 678 So.2d 460 (Fla. App. 1996)
• Parties: 21 Fla. L. Weekly D1861 STATE of Florida, Appellant, v. John Edmond HITCHMON, Sr., Appellee.
• Court: Florida District Court of Appeals

Page 460

678 So.2d 460

21 Fla. L. Weekly D1861

STATE of Florida, Appellant, v. John Edmond HITCHMON, Sr., Appellee.

No. 95-2064.

District Court of Appeal of Florida Third District.

Aug. 14, 1996.

Robert A. Butterworth, Attorney General, and Paulette R. Taylor, Assistant Attorney General, for appellant.

Alexander O. Akpodiete, Miami, for appellee.

Before COPE, GODERICH and FLETCHER, JJ.

COPE, Judge.

The state appeals an order striking restitution as a condition of probation. We reverse.

Defendant-appellee John Edmond Hitchmon, Sr. entered into a plea agreement whereby he pled nolo contendere to the offense of dealing in stolen property. The agreed penalty was ten years probation plus restitution in an amount to be set by the trial court, with a cap of $96,000. Defendant commenced serving his term of probation. Subsequently the trial court struck the restitution requirement from the probation order. The state has appealed.

The defendant first argues that the state may not appeal an order denying restitution. For this proposition he relies on State v. MacLeod, 600 So.2d 1096 (Fla.1992). We disagree. Subsequent to the MacLeod decision, the legislature amended section 924.07, Florida Statutes, to authorize a state appeal from "[a]n order denying restitution under s. 775.089." § 924.07(1)(k), Fla.Stat. (1995); ch. 93-37, § 14, Laws of Fla. The order under review is properly viewed as being an order denying restitution. Since the order under review was entered long after paragraph 924.07(1)(k) went into effect, the order is appealable. ¹

Turning to the merits, in this case defendant was charged with purchasing stolen United Parcel Service ("UPS") shipments from a UPS employee, codefendant John Parker. UPS discovered that thefts had been taking place and traced the problem to Parker. Parker admitted that he had been taking merchandise and stated that he had been selling it to defendant for a year or two. Parker agreed to wear a body wire and was recorded negotiating a sale of stolen merchandise to defendant's son, who worked in defendant's business. A warrant was obtained to search defendant's business premises. In the search, Parker identified merchandise that he had sold to defendant.

The merchandise recovered from defendant's business premises fell into two groups. Some of the merchandise was still in the original UPS boxes. Other merchandise had been removed from the boxes but was identified by Parker as having originated with UPS. The merchandise so identified was removed from defendant's business and placed in storage by UPS. This consisted of approximately 123 boxes. Defendant claims that some of the goods removed from his premises belonged to him, and should not be counted in calculating the restitution amount.

By the time the goods were recovered from defendant's business premises, UPS had already paid customers for lost merchandise. UPS testified that it could document $96,000 in losses which it attributed to Parker's and defendant's activities. UPS believed that its true losses were considerably higher (as much as $300,000), but for purposes of restitution, confined its claim to $96,000.

The trial court scheduled two restitution hearings, but continued them at the request of UPS. On March 17, 1995, the restitution hearing began. In an effort to simplify the proceedings, the court interrupted the testimony of the UPS witness and directed the parties to confer to see if they could come up with an agreed figure for the amount of the loss.

After the parties were unable to agree, the defense requested permission to go to the UPS warehouse and go through the 123 boxes. The defense contended that it needed an opportunity to inspect each of the boxes in order to prepare its response to the UPS restitution claim. The court granted the defense request and postponed the completion of the restitution hearing.

On May 12, 1995, there was a further hearing in this matter. Defense counsel at that time stated that defendant's accountant went to the UPS facility and reviewed the boxes. Defense counsel stated that he had not yet received a written report from the accountant. Defense counsel also said that the defendant needed an opportunity to review his own records in order to prepare his defense for the restitution hearing. The state requested that the matter be scheduled for a resumption of the evidentiary hearing.

Defense counsel told the court that during the visit to the UPS facility, a UPS representative stated that if there was not a satisfactory restitution award, then UPS intended to file a civil suit. The trial court then ruled that the parties should proceed with a civil suit and struck the restitution condition from the probation order. We now reverse.

It is not permissible to deny restitution because the victim intends to file, or has actually filed, a civil lawsuit for the same loss. The restitution statute was adopted for the benefit of crime victims. It is intended to provide an additional alternative to reimburse a crime victim, over and above traditional remedies like a civil lawsuit. See Spivey v. State, 531 So.2d 965, 967 (Fla.1988). A crime victim is allowed to pursue both a restitution remedy and a civil remedy. "An order of restitution hereunder [under the restitution statute] 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." See § 775.089(8), Fla.Stat.

From the crime victim's viewpoint, a restitution order can be an attractive remedy where the trial court orders installment payments enforceable as a condition of probation. An enforceable order for installment payments is generally not available in a civil lawsuit. Further, in many cases a restitution...