State v. Kirby

• Decision Date: 14 June 2002
• Docket Number: No. 5D01-2567.,5D01-2567.
• Citation: 818 So.2d 689
• Parties: STATE of Florida, Appellant, v. Gary Kent KIRBY, Appellee.
• Court: Florida District Court of Appeals

818 So.2d 689

STATE of Florida, Appellant, v. Gary Kent KIRBY, Appellee.

No. 5D01-2567.

District Court of Appeal of Florida, Fifth District.

June 14, 2002.

Robert A. Butterworth, Attorney General, Tallahassee, and Robert E. Bodnar, Jr., Assistant Attorney General, Daytona Beach, for Appellant.

James B. Gibson, Public Defender, and Lyle Hitchens, Assistant Public Defender, Daytona Beach, for Appellee.

THOMPSON, C.J.

The state appeals an order denying restitution. This court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.140(c)(1)(M). We reverse.

Gary Kent Kirby was found guilty by a jury of driving under the influence resulting in serious bodily injury to another on February 23, 2001. Kirby was adjudicated guilty and sentenced to five years of probation, a downward departure.

Independent of the criminal case, the victim in this case executed a release of his claim for damages in exchange for $25,000.00 on April 7, 2001.¹ Based on that release and State v. Vandonick, 800 So.2d 239 (Fla. 2d DCA 2001), the trial court denied restitution after a hearing on August 13, 2001. There, the defendant was charged with reckless driving and felony battery for allegedly intentionally injurying the victim. Id. Before the defendant's criminal case was resolved, the victim settled for $50,000.00, releasing the defendant and his insurance company from all claims arising out of the incident which led to the criminal case. Id. at 240. Subsequently, the defendant entered a plea of no contest to reckless driving and culpable negligence. Id. Although the victim's medical bills far exceeded $50,000.00, the trial court ruled that restitution had to be limited to the $50,000.00 the victim had received. Id. The second district affirmed, noting that settlement agreements are governed by contract law, are highly favored, and should be enforced wherever possible. Id.

Judge Northcutt dissented, arguing that the sentencing court was not bound by the civil settlement and release between the defendant and the victim. Id. (Northcutt, J., dissenting). He gave several reasons for that position. First, he noted that the state was not a party to the settlement transaction nor were its interests represented. Id. at 240-41. Judge Northcutt pointed out that this was significant because restitution is only partially founded on the victim's right to be compensated; just as important is the state's right to have the victim made whole by the perpetrator. Id. Second, Judge Northcutt noted that restitution has societal purposes broader than simply compensating the victim—it is a deterrent, it is rehabilitative, retributive, and it requires the perpetrator, rather than the taxpayers, to absorb some or all of the financial aspect of the victim's injuries. Id.

Judge Northcutt gave another important reason for his position:

a variety of circumstances might induce a victim to settle her claim for less than her actual damages—problems of proof, for example, or her immediate financial need, or the inadequacy of the defendant's liability insurance policy limits. Such considerations should have no bearing on the court's statutory duty to order restitution for the damage or loss caused by the defendant's criminal conduct. Where, as here, the settlement was for a sum which was less than the victim's damage or loss, an order imposing restitution based solely on the amount of the settlement would violate the clear requirements of the statute.

Id.

We agree with the well-reasoned dissent of Judge Northcutt. We note that a number of other state appellate courts take the same position. See State v. Applegate, 266 Kan. 1072, 976 P.2d 936, 938 (1999)("The State was not a party to the agreement. A civil release of claims does not and cannot specifically preclude court-ordered restitution in a criminal case"); State v. Walters, 224 Wis.2d 897, 591 N.W.2d 874 (App.1999)(previous settlement of victim's civil action against defendant for injuries sustained in motor vehicle accident did not absolutely bar trial court from ordering that defendant pay restitution in criminal prosecution of defendant for same incident); State v. Iniguez, 169 Ariz. 533, 821 P.2d 194, 197 (App.1992)("[b]ecause restitution also promotes the rehabilitative purpose of the criminal law, and because civil damage payments may not be fully compensatory, the court is not automatically foreclosed from ordering some restitution simply because the victim has received some compensation as a result of a civil action").

The settlement between the victim and the defendant in a civil proceeding did not bar the state from seeking restitution, as it was not a party to the settlement and its interests go beyond the interests at stake in the civil settlement.

REVERSED and REMANDED for an evidentiary hearing.²

SAWAYA and PLEUS, JJ., concur.

1. The release reads in pertinent part:

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