Opinion
No. 2D21-374
08-24-2022
J.B.E.C., Appellant, v. STATE of Florida, Appellee.
Howard L. Dimmig, II, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow; and Lisa B. Lott, Assistant Public Defender, Bartow (substituted as counsel of record), for Appellant. Ashley Moody, Attorney General, Tallahassee, and C. Todd Chapman, Assistant Attorney General, Tampa, for Appellee.
Howard L. Dimmig, II, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow; and Lisa B. Lott, Assistant Public Defender, Bartow (substituted as counsel of record), for Appellant.
Ashley Moody, Attorney General, Tallahassee, and C. Todd Chapman, Assistant Attorney General, Tampa, for Appellee.
SLEET, Judge.
J.B.E.C. challenges the trial court's juvenile disposition order in which the court found him guilty of committing the delinquent acts of fleeing or eluding a law enforcement officer and grand theft of a motor vehicle. On appeal, he raises several issues with regard to the trial court's restitution order. Because the State's evidence was insufficient to establish the victim's loss of income, we reverse only the restitution imposed on that basis, and we remand for a new restitution hearing on that issue only. We affirm without comment the trial court's disposition in all other respects.
The delinquency petition was filed against J.B.E.C. after he was discovered driving a stolen vehicle. He entered a plea to the allegations, and the trial court committed him to the Department of Juvenile Justice for an indeterminate period not to exceed his twenty-first birthday. The court reserved jurisdiction on the issue of restitution and, following a subsequent hearing, imposed restitution in the amount of $3,594. On appeal, J.B.E.C. argues that the trial court erred by including the victim's lost wages in the restitution amount. We agree.
Pursuant to section 985.437(2)(b), Florida Statutes (2020), in a delinquency proceeding, "[t]he court may order the child to make restitution ... for any damage or loss caused by the child's offense in a reasonable amount or manner to be determined by the court." As such, restitution imposed against a juvenile may only include a victim's lost wages if the State establishes by a preponderance of the evidence the victim's loss and that it was caused by the child's offense. See id. ; G.C. v. State , 944 So. 2d 1099, 1099-1100 (Fla. 2d DCA 2006) ("When established by a preponderance of the evidence, restitution is awarded for damage or loss 'caused directly or indirectly by the defendant's offense' and 'related to the defendant's criminal episode.’ " (citation omitted)); see also Schuette v. State , 822 So. 2d 1275, 1279 (Fla. 2002) ("[T]he State must establish both causation and the amount of loss or damages by a preponderance of the evidence." (citing Glaubius v. State , 688 So. 2d 913, 915 (Fla. 1997) )).
At the restitution hearing in the instant case, the victim claimed that he lost $2,880 in wages because he spent eight nonconsecutive hours getting his vehicle repaired. Specifically, he testified, "[T]he efforts to get the car repaired, taking it back and forth and the things that I did, I spent a considerable period of time to do that; it took me away from the work that I would otherwise have performed." He explained that he is an attorney who works as a receiver appointed by the United States District Court:
I'm appointed in about four different cases now that involve hundreds of millions of dollars that I -- that I oversee the receivership. And with respect to that, I submit billings for all of those things on a very -- in a timely manner and the billing – and the fees are approved by the court. ...
....
When I'm appointed, I generally provide – I always provide to the court a proposal how I will conduct my affairs, who the attorneys are that I hire, and what I do and the hourly rate that I charge with respect to the activities that I'm going to perform.
He further testified: "I'm appointed as a receiver to manage the receivership estate, and I operate it. My ... energy of what I do is not directed by anybody other than me. ... I do work 24/7 if I want to."
This testimony is insufficient to establish by a preponderance of the evidence that the victim lost $2,880 in income. The victim's testimony established that he spent eight hours of his time in efforts related to the repair of his vehicle and that he otherwise could have been working during those eight hours. But the victim did not identify how this amounted to a loss in income. The State failed to elicit specific testimony concerning any legal work that was not performed due to time spent on the repairs of his vehicle or any specific case in which he received less in compensation. In fact, he affirmatively testified that his "energy of what [he does] is not directed by anybody other than [him]" and that he could complete his work "24/7 if [he] want[ed] to," which suggests that he did not have to perform specific work during the eight nonconsecutive hours that he estimated he spent taking his car back and forth from the repair shop.
The plain language of section 985.437(2)(b) requires the State to establish "damage or loss" before restitution can be imposed. Because the State's evidence here failed to establish that the victim actually lost $2,880 in income, the trial court erred in including this amount in the restitution order. We therefore reverse that portion of the restitution order and remand for a new restitution hearing on that issue only. We affirm in all other respects.
The trial court's restitution order was a form order that did not itemize the $3,594 awarded. Our record, however, indicates that the restitution award included $500 for the victim's insurance deductible, $214 for items taken from his vehicle, and $2,880 for lost income.
Affirmed in part, reversed in part, and remanded for further proceedings.
KELLY and STARGEL, JJ., Concur.