122 So. 3d 499
Fla. Dist. Ct. App.2013Background
- Two 17‑year‑old juveniles, S.S. and C.T., pleaded no contest to burglary and criminal mischief; grand theft counts were nolle prossed. Both plea agreements included a promise to pay restitution in an amount to be determined.
- Arrest affidavits listed specific stolen items (e.g., Xbox, video games for S.S.; watch, surfboard, skate board for C.T.) and $15,000 interior damage, but did not list a Rolex or a diamond bracelet.
- An insurance adjuster testified the insurer paid over $49,000 for home damage and lost personal property; the insurer’s summary (provided after pleas) listed values for the Rolex and bracelet based on replacement/appraisal values.
- Trial court awarded joint and several restitution totaling $27,598, including amounts for the Rolex and bracelet, and awarded the insurer $14,851.83 (rejecting portions based on replacement vs. fair market value).
- Juveniles objected that the Rolex and bracelet were not in the charging documents or plea facts and moved post‑disposition under Rule 8.135(b)(2) asserting the court also failed to make findings as to their ability to pay, as required by section 985.437(2).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court can order restitution for items not listed in arrest affidavit or admitted at plea | Juveniles: restitution limited to items in charging documents or factual plea basis; Rolex/bracelet were not listed | State: restitution may include items shown at hearing and in insurer summary; issue preserved only by contemporaneous objection | Court reversed restitution for Rolex and bracelet — restitution must be tied to arrest affidavit or facts admitted at plea (citing Malarkey and T.J.J.) |
| Whether trial court failed to comply with statutory requirement to find juveniles’ ability to pay before setting restitution amount | Juveniles: court made no findings of expected earning capacity or parents’ ability; record lacks evidence of ability to pay | State: issue not preserved and not error | Court held issue was preserved via Rule 8.135(b)(2) and reversed/remanded for a hearing to make findings on each juvenile’s ability to pay (statutory requirement) |
| Admissibility/measure of insurer payments: replacement vs fair market value | Juveniles: insurer’s replacement‑cost payments do not establish fair market value for restitution | State: insurer payments support restitution award to insurer | Trial court appropriately reduced insurer award where only replacement value shown; overall restitution must exclude items not in charging documents |
| Preservation via Rule 8.135(b)(2) for errors in restitution order | Juveniles: post‑disposition Rule 8.135 preserves errors in the restitution order itself | State: rule does not preserve insufficiency of proof | Court agreed the rule applies to errors in the sentencing/restitution order and preserved the claim for appeal |
Key Cases Cited
- Malarkey v. State, 975 So.2d 538 (discussing restitution limited to offense charged or factual plea basis)
- T.J.J. v. State, 121 So.3d 635 (applying Malarkey to juvenile restitution; arrest affidavit or plea facts must include items)
- M.W.G. v. State, 945 So.2d 597 (juvenile restitution requires findings as to expected earning capacity)
- A.J. v. State, 677 So.2d 935 (same — need for ability‑to‑pay findings before setting restitution)
- K.T.M. v. State, 969 So.2d 542 (absence of ability‑to‑pay findings requires reversal and remand)
- C.Y. v. State, 989 So.2d 1235 (noting requirement of ability‑to‑pay findings in juvenile restitution)
- A.B. v. State, 910 So.2d 415 (trial court must determine ability to pay prior to setting restitution)
- Jackson v. State, 983 So.2d 562 (Rule 3.800/juvenile equivalent preserves errors in sentencing/restitution orders)