State v. P.C.L.

• Decision Date: 05 January 2022
• Docket Number: 4D20-2002
• Citation: 332 So.3d 4
• Parties: STATE of Florida, Appellant, v. P.C.L., a child, Appellee.
• Court: Florida District Court of Appeals

332 So.3d 4

STATE of Florida, Appellant,

v.P.C.L., a child, Appellee.

No. 4D20-2002

District Court of Appeal of Florida, Fourth District.

[January 5, 2022]

Ashley Moody, Attorney General, Tallahassee, and Anesha Worthy, Assistant Attorney General, West Palm Beach, for appellant.

Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellee.

Klingensmith, J.

The State appeals the trial court's order denying restitution following an incident involving the intentional destruction of property. The trial court denied all restitution to one of the victims for damage to one of his vehicles, a Ford Expedition, loss of use relating to the Expedition, damage to a gate outside his home, and loss of income resulting from the damage sustained to the Expedition and his second vehicle.¹ We affirm the trial court's denial of restitution for the damage to the gate and loss of use of his vehicle but reverse and remand as to the other two items.

In a deliberate and senseless act of property damage, P.C.L. ("the Child") stole a neighbor's vehicle, wedged a concrete block onto the gas pedal, and sent it careening into the victim's Expedition and Durango parked in his driveway. Both vehicles sustained extensive damage from the impact, and the victim claimed the impact also damaged a gate. The Child was charged with one count of motor vehicle grand theft and two counts of criminal mischief involving $1,000.00 or more. He entered a no contest plea to all three counts. The trial court ordered him to pay restitution and reserved the amount for a later hearing.

At the restitution hearing, the State asked the trial court to award restitution for three losses: (1) damage to the Expedition and eight days of lost use, (2) damage to the gate, and (3) loss of income relating to an employment contract. The victim was the only witness at the hearing.

The victim testified that the Durango—the car first hit in the impact—was completely totaled, and because of the impact, hit the Expedition next to it, requiring repairs to the Expedition. The victim testified that he paid $5,769.29 out-of-pocket for the repairs to the Expedition with no reimbursement from his insurance company. After he paid for those initial repairs, the Expedition required additional repairs, costing another $1,400.00, which he said the insurance company paid.

The victim then testified about the damage to his gate near the parked Expedition. He said he paid approximately $10,000.00 to install the gate in 2017, and prior to the incident, believed the gate was fully functional and undamaged. After the incident, he found the gate was cracked and knocked off its hinges, causing damage to the house. He believed there was a domino effect from the impact of each of the vehicles that created the force that damaged the gate. However, the Expedition was not found pressed against the gate, and there was no mention of damage to the gate in the police report made on the night of the incident. Additionally, the photos in evidence taken after the incident appeared to show some space between the vehicles and the gate. The victim testified he paid $10,180.00 to the gate company for a full replacement of the gate.

Finally, the victim testified about his loss of income due to his inability to work as an independent insurance adjustor performing assessments of affected areas after natural disasters. He testified that the type of work he performed required a specific type of vehicle to travel to affected areas because of the terrain and the equipment he carries. These factors included the need for four-wheel drive as well as a large and lockable compartment space. At the time of the incident, the victim testified he was under contract with FEMA for a hurricane damage assessment and had only a three-day turnaround after the incident to reach a jobsite in Louisiana after both the Durango and Expedition were damaged. He said he was unable to rent a similar vehicle in that short timeframe, either locally or in the disaster area, and as a result, he lost out on the contract. His total compensation for the lost six-month contract would have been $180,000.00. Because of the unpredictable nature of this work, the victim also testified regarding the financial hardship he and his family suffered by losing this contract. He asked for restitution for his lost income in the amount of $180,000.00.

Defense counsel did not challenge the amounts of the restitution sought nor the Child's liability for causing these damages. Instead, counsel spoke on the Child's ability to pay restitution, arguing that if restitution was ordered by the court, then the amount must not exceed an amount which the Child and his parent or guardian could reasonably be expected to pay. Defense counsel argued the trial court should give the Child reasonable time to find employment and base the amount of restitution on evidence of the Child's earnings or earnings which the Child could reasonably be expected to make. At the time of the hearing, the Child was sixteen years old and only worked on Saturdays cleaning pools, making approximately $20.00.

In the end, the trial court ordered restitution of $1,700.00 for the neighbor whose stolen vehicle was used in the incident and found the Child was able to pay that amount. However, the trial court made no finding on the Child's ability to pay for the victim's restitution and declined to order any restitution for him.

For the Expedition, the trial court found there was no evidence or documentation of what the insurance company paid other than the victim's own testimony. The trial court considered the testimony about what the victim paid in repairs to be insufficient proof of his loss and concluded that he should have provided to the court a paid invoice or other proof of payment. The trial court also found that the victim's claim of $800.00 for loss of use of the Expedition for eight days was not sufficiently supported by anything other than his testimony. Other than $1,400.00 that was covered by insurance, the trial court found that the victim failed to provide sufficient evidence or documentation to support the loss of use and damages to the Expedition.

For the gate, the trial court found no nexus between the crime and the damage to the gate. To support its finding, the trial court pointed to the lack of evidence on the record: no photographs detailed any damage to the gate, aside from its hinges; the police report did not mention any damage to the gate; and, the victim provided no testimony that he contacted his insurance company to pay for the gate.

For the loss of the employment contract, the trial court found there was no evidence as to the net amount of compensation which the victim would have received after deducting unreimbursed expenses and taxes. The trial court found that while the economic loss claimed was substantial, the victim did not sufficiently mitigate or attempt to mitigate these damages, stating that when considering the value of the contract at stake, the victim could have leased or bought a new suitable vehicle in other reasonable locations. Although the trial court ultimately found a nexus between the Child's actions and the victim's loss related to the physical damage to his vehicles, the court attributed the loss of employment to the victim's failure to mitigate or attempt to mitigate those damages.

This appeal followed. On appeal, the State challenges only the trial court's denial of restitution for the Expedition, the gate, and the loss of the employment contract.

The standard of review for a restitution order is abuse of discretion. Martinez v. State , 316 So. 3d 362, 364 (Fla. 4th DCA 2021). The trial court abuses its discretion when its actions are "arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court." Hamil v. State , 106 So. 3d 495, 497 (Fla. 4th DCA 2013) (quoting Canakaris v. Canakaris , 382 So. 2d 1197, 1203 (Fla. 1980) ). Restitution must bear a significant relationship between the crime and the loss claimed by the victim. L.H. v. State , 803 So. 2d 862, 863 (Fla. 4th DCA 2002). "The burden of proving the amount of restitution is on the State, and the amount must be proved by a preponderance of the evidence." Koile v. State , 902 So. 2d 822, 824 (Fla. 5th DCA 2005) (citing § 775.089(7), Fla. Stat. (2019) ).

For adults, restitution is awarded for (1) "[d]amage or loss caused directly or indirectly by the defendant's offense" and (2) "[d]amage or loss related to the defendant's criminal episode."

§ 775.089(1)(a), Fla. Stat. (2019). Courts have treated the juvenile restitution statute similarly to the adult restitution statute. L.R.L. v. State , 9 So. 3d 714, 715 (Fla. 2d DCA 2009). However, unlike in adult criminal cases, restitution awards involving juvenile defendants are discretionary. See id . Juveniles may be ordered to pay restitution "for any damage or loss caused by the child's offense." § 985.437(2), Fla. Stat. (2019). The sufficiency of evidence requirement used in adult restitution cases has also been utilized in juvenile restitution cases. See D.D. v. State , 172 So. 3d 969, 971 (Fla. 4th DCA 2015) (finding a victim's testimony estimating the cost of repairs was insufficient to support an award of restitution).

1) Restitution for the Expedition

An award of restitution may not be based on speculation. Bennett v. State , 944 So. 2d 524, 526 (Fla. 4th DCA 2006). In Bennett , we reversed a restitution award where "the award of restitution was based solely on speculative testimony, rather than concrete or documentary evidence," and remanded for a new evidentiary hearing to determine the appropriate amount for restitution. Id. at 525.

However, documentary evidence is not always a prerequisite to establishing an amount for an award of restitution. See Prinz v. State , 149 So. 3d 65, 68 (Fla. 4th DCA 20...