TK v. State, 98-1960.

• Decision Date: 05 November 1999
• Docket Number: No. 98-1960.,98-1960.
• Citation: 743 So.2d 1197
• Parties: T.K., A Child, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

743 So.2d 1197

T.K., A Child, Appellant, v. STATE of Florida, Appellee.

No. 98-1960.

District Court of Appeal of Florida, Fifth District.

November 5, 1999.

James B. Gibson, Public Defender, and M.A. Lucas, Assistant Public Defender, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.

GOSHORN, J.

We are asked to determine the propriety of the financial fate of T.K., one of five children involved in the burglary and arson of the Smith dwelling.¹ Upon entering a nolo contendere plea to burglary of a dwelling and receiving a dismissal on the arson charge, T.K. was ordered to pay for damages caused to the house, garage, and contents. On appeal, T.K. argues that the court erred in ordering him to pay restitution on the full amount of damage caused by both offenses where the arson charge was dismissed. We reject this argument for several reasons.

First, T.K. did not raise this contention below. See Mitchell v. State, 664 So.2d 1099 (Fla. 5th DCA 1995)

(contemporaneous objection rule is applicable in restitution hearings). Further, the damages inflicted by the fire did in fact stem from T.K.'s actions in committing the burglary. It is apparent why the children were attempting to hot-wire the Porsche—it was an intended spoil of the burglary. The resulting accidental fire and damages were "caused by the child's offense"; the damages bore a "significant relationship" to the offense. Accordingly, restitution for the damages was appropriate. See § 985.231(1)(a)6., Fla. Stat. (1997) (giving the trial court authority to order a delinquent child to make restitution "for any damage or loss caused by the child's offense...."); J.O.S. v. State, 689 So.2d 1061 (Fla.1997) (where damages bore a significant relationship to the juvenile's offense, restitution was proper); see also A.G. v. State, 718 So.2d 854 (Fla. 4th DCA 1998) (holding that even though restitution was ordered under the juvenile statute, restitution in juvenile cases is treated the same as restitution under the criminal code and thus, pursuant to section 775.089, restitution includes not only damages caused directly or indirectly by the offense, but also includes the damages related to the criminal episode); Triplett v. State, 709 So.2d 107, 108 (Fla. 5th DCA) ("The correct test for restitution is whether `but for' the criminal episode, the damages would have been incurred by the victim.") (citation omitted), rev. denied, 725 So.2d 1110 (Fla.1998).

T.K. asserts, too, that the State failed to prove the amount of restitution by a preponderance of the evidence. As we held in B.M. and T.F., we again hold that because this issue was not raised in the trial court, the issue was not preserved for appellate review.² T.K.'s additional complaint that the total restitution imposed, $135,523.62, was the result of a mathematical error is incorrect. His computations failed to include the costs of hauling away the debris, a cost which the court properly included. However, we do note an error not complained of by T.K., and that is the transposition of the amount ordered paid by the child with the amount the parents were made responsible for paying. Further, the written...