Opinion
Case No. 2D19-1887
10-02-2020
Frank FERRI, Appellant, v. STATE of Florida, Appellee.
Howard L. Dimmig, II, Public Defender, and Karen M. Kinney, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, for Appellee.
Howard L. Dimmig, II, Public Defender, and Karen M. Kinney, Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, for Appellee.
BY ORDER OF THE COURT.
Appellant's Motion for Written Opinion dated June 5, 2020, is granted. The prior opinion dated June 3, 2020, is withdrawn and the attached opinion is issued in its place. No further motions for rehearing will be entertained.
I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER.
MORRIS, Judge.
Frank Ferri appeals the restitution order entered against him after he pleaded to and was adjudicated guilty of three counts of dealing in stolen property, three counts of providing false verification of ownership to a pawn broker, one count of possession of methamphetamine, and one count of possession of paraphernalia. Ferri argues that he should not have been ordered to pay restitution for a stolen tennis bracelet because he was not charged with theft of the bracelet and because that item was not encompassed within the original charges of dealing in stolen property and, therefore, his guilty plea to the dealing in stolen property charges did not constitute his agreement to pay for that item. For the reasons explained herein, we affirm.
When a defendant challenges a restitution award, a court must determine whether "the loss or damage is causally connected to the offense and bears a significant relationship to the offense." Koile v. State, 934 So. 2d 1226, 1234 (Fla. 2006) (quoting Schuette v. State, 822 So. 2d 1275, 1280 (Fla. 2002) ). "To be causally connected to an offense, the restitution award must arise out of the offense with which the defendant is actually charged." Malarkey v. State, 975 So. 2d 538, 540 (Fla. 2d DCA 2008). "Further, when a defendant agrees to pay restitution as part of a plea agreement, the defendant's agreement is limited to restitution arising out of the offense charged by the State as reflected in the information and/or by the factual basis for the plea set forth by the State when the plea is entered." Id. at 540-41 (emphasis added); see also James v. State, 223 So. 3d 288, 290 (Fla. 4th DCA 2017).
Notably, courts look to arrest affidavits and discovery materials provided to the defendant prior to entry of a plea to determine whether, as part of the factual basis for entry of the plea, the items for which restitution was awarded were listed. See, e.g., Siminski v. State, 1 So. 3d 1161, 1162-63 (Fla. 2d DCA 2009) (reversing restitution order and remanding where several items not listed in information or discussed during factual basis for the plea were claimed at the restitution hearing but where the record on appeal was unclear "whether the discovery materials available to the defense at the time of the plea hearing included more items than those that were listed in the information and which the State anticipated as being compensable as restitution"); Malarkey, 975 So. 2d at 540-42 (reversing restitution order and remanding where items for which restitution was awarded were not listed in discovery materials provided to defense prior to entry of plea, information, or arrest warrant and thus "were not encompassed within the original [theft] charge against Malarkey[ ] and the theft of those items constitutes a separate offense with which Malarkey has not been charged"); Avery v. State, 838 So. 2d 1247, 1248 (Fla. 2d DCA 2003) (reversing restitution award and remanding where although victim testified he told law enforcement about the missing monies from the second theft, the arrest warrant only referenced the missing monies from the first theft that had already been repaid and where the factual basis recited at the plea hearing only referred to the missing monies from the first theft); James, 223 So. 3d at 290-91 (reversing restitution order and remanding on the basis that it included restitution for items not related to appellant's convictions for giving false information to a pawnbroker and dealing in stolen property where jewelry for which restitution was awarded was not listed in the information or arrest warrant affidavits and where State made it clear during the factual basis for the plea that it was only seeking restitution for the items because they were stolen, not pawned, even though appellant was not charged with theft); S.S. v. State, 122 So. 3d 499, 502 (Fla. 4th DCA 2013) (reversing restitution order in part as to two items that were not listed in arrest affidavit, the factual basis for the plea, or in any discovery that the appellant received prior to the entry of the plea and explaining that "in order for the court to require restitution, either the arrest affidavit or the facts admitted ... at the time of the plea must include the items for which the court orders restitution").
The issue is essentially one of notice to a defendant of the items for which the State seeks restitution. Cf. Nelson v. State, 113 So. 3d 1032, 1033 (Fla. 5th DCA 2013) (holding that where information only charged defendant with dealing in stolen property and where State's presentation at plea hearing "was insufficient to link [the defendant] to [a] burglary or to place [him] on notice that it intended to seek restitution from him based upon the burglary," trial court could not award restitution for jewelry stolen from victim's home during a burglary that preceded the crime with which defendant was charged); Noland v. State, 734 So. 2d 464, 466 (Fla. 5th DCA 1999) (holding that where charging document only referenced specific stolen items, trial court committed fundamental error by awarding restitution for additional items testified about at restitution hearing because "[r]estitution cannot be ordered for a theft not encompassed within the charge contained in the information" (citing Stewart v. State, 629 So. 2d 982 (Fla. 5th DCA 1993) )).
Here, Ferri's arrest warrant alleged that he committed the crime of grand theft in addition to the crimes of dealing in stolen property and providing false information to a pawnbroker. The arrest affidavit also specifically noted that in a post Miranda interview, Ferri not only admitted to stealing the items that he subsequently pawned, but he also admitted that other jewelry that the victim listed as missing, "includ[ing] a tennis bracelet, was sold to ... separate individuals to pay off drug debts." Further, at the time of his arrest, law enforcement had already recovered the other three items that served as the basis for the dealing in stolen property charges. Thus no restitution would have been due to the victim for those items. Yet Ferri acknowledged in his plea form that he agreed to pay restitution and that a stipulation or restitution hearing would be necessary to determine the amount of restitution. Such a stipulation or hearing would be unnecessary if there were no items for which restitution was due.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
It is true that the factual basis for the plea was not discussed in detail and that, instead, defense counsel merely made a general stipulation at the plea hearing. It is also clear that the charging document did not contain a theft charge or otherwise refer to the tennis bracelet. But we are unconvinced that the State's decision not to charge Ferri with the theft of the tennis bracelet precludes restitution for that item when the arrest affidavit clearly noted Ferri's admission to stealing and then selling that item. Unlike the James case, wherein the court rejected the State's argument that all the jewelry was taken in an ongoing episode, 223 So. 3d at 290, here, Ferri acknowledged that he engaged in an ongoing criminal episode stealing various items and selling them either to pawnbrokers or to drug dealers to fund his drug habit. And when Ferri entered his stipulation to the factual basis for the plea, he did not restrict his stipulation to only the items underlying the dealing in stolen property charges. This is not a situation where our record is unclear as to whether the discovery materials available to the defense at the time of the plea hearing included more items than those that were listed in the information. Cf. Siminski, 1 So. 3d at 1163. Rather, in this case, the defense had the arrest affidavit available to it prior to the entry of the plea, and the arrest affidavit not only alleged that a theft occurred in conjunction with the other charges, but it also contained reference to the tennis bracelet which put Ferri on notice that it could be a compensable restitution item. Ferri's explicit agreement to make restitution in conjunction with the fact that the victim had already recovered the other stolen items only supports the conclusion that Ferri anticipated that he would have to pay restitution for the only other specifically referenced stolen item in the arrest affidavit, i.e., the tennis bracelet. Accordingly, we conclude that the loss of the tennis bracelet is causally connected and bears a significant relationship to the charged offenses and that, therefore, restitution was properly awarded for that item.
Affirmed.
LaROSE and LUCAS, JJ., Concur.