SAMUEL BRIAN WILSON

v.

STATE OF FLORIDA

NORDBY, J.

Samuel Brian Wilson challenges an order awarding restitution to the victim of his drunk driving accident. Wilson argues the restitution results in an impermissible double recovery because the victim’s civil settlement should have been set off against the amount of restitution. We agree and reverse.

Around lunchtime, Wilson drove his car onto the dining patio of a Mexican restaurant in Gainesville, Florida. The crash severely injured one of the restaurant’s patrons. Following his arrest at the scene, Wilson pleaded no contest to driving under the influence (fourth or subsequent offense) and refusal to submit to lawful testing. The trial court sentenced Wilson and reserved jurisdiction to determine restitution at a later hearing. Meanwhile, in the civil arena, Wilson’s insurer tendered its bodily injury policy limit of $100,000 to the victim. Soon after, the victim settled her medical expenses with her health insurance provider for $8,288.31.

At the restitution hearing, the State sought the $8,288.31 as out-of-pocket medical expenses, as well as separate, undisputed costs of $878.40, for a total of $9,166.71. The parties argued over whether the victim’s civil settlement already covered the disputed expenses. The court ordered Wilson to pay the full amount, finding the victim’s civil settlement did not cover her medical expenses.

We review a restitution order for abuse of discretion. Tolbert v. State, 268 So. 3d 947, 949 (Fla. 1st DCA 2019). “[A] trial court’s discretion is limited by rules, statutes, and case law, and a trial court abuses its discretion when its ruling is based on an erroneous view of the law.” Reder v. Miller, 102 So. 3d 742, 744 (Fla. 2d DCA 2012) (citing Mcduffie v. State, 970 So. 2d 312, 326 (Fla. 2007). And under the governing statute here, the State bears the burden to prove the amount of restitution by the preponderance of the evidence. § 775.089(7), Fla. Stat. (2017).

When an offense results in bodily injury to a victim, a restitution order requires a defendant to pay the cost of necessary medical treatment, physical therapy and rehabilitation, and loss of income. §775.089(2)(a), Fla. Stat. Restitution does not prevent any later civil recovery, “but the amount of such restitution shall be set off against any subsequent independent civil recovery.” §775.089(8), Fla. Stat. Although the statute assumes the restitution order will come first, the sequence is unimportant. Kirby v. State. 863 So. 2d 238, 243 (Fla. 2003). Instead, the statute simply “prevent[s] the victim from forcing the defendant to pay twice.” Id. (quoting Weinstein v. State, 745 So. 2d 1085, 1086 (Fla. 4th DCA 1999)). But civil damages might be different from those recoverable through restitution, so a court must set off only for the elements of damages already recovered. Peterson v. Therma Builders, Inc., 958 So. 2d 977, 980 (Fla. 2d DCA 2007).

A judgment constitutes a double recovery when the two awards overlap. Id. In Peterson, the defendant faced dual liability for fraud, and the criminal court ordered restitution. Id. at 978. Later, the civil court subtracted the amount of restitution the defendant already paid and entered judgment for the remaining balance. Id. at 979. On appeal, the court reversed because nothing in the record showed that the civil damages were different from the restitution damages. Id. at 980.

In contrast, restitution does not constitute a double recovery when a victim’s out-of-pocket expenses exceed a civil insurance settlement. Kirby, 863 So. 2d at 245. In Kirby, the defendant faced dual liability for a car crash. Id. at 240. The civil side settled, and the defendant’s insurance company paid out the policy limit to the victim. Id. In the criminal context, the Florida Supreme Court explained that restitution would not constitute a double recovery because the victim’s out-of-pocket expenses were greater than the policy limits. Id. at 245.

We conclude the restitution order here results in a double recovery. Just like Peterson, nothing in the record differentiates the civil damages and restitution. The State claims that the settlement addressed the victim’s pain and suffering and not her out-of-pocket expenses. But neither the settlement offer nor the release statement supports this contention because they do not expressly limit the settlement to pain and suffering. To the contrary, the language in the release encompasses “all injuries and damages, known and unknown,” and clarifies the victim “is responsible for satisfaction of any and all claims, costs, obligations and liens of any kind, arising out of the accident.” And unlike Kirby, the victim’s out-of-pocket medical expenses here did not exceed the civil settlement.

We are mindful that release statements will typically contain broad language, and because courts must set off for the damages already recovered, see Peterson, 958 So. 2d at 977, the two awards may often overlap. This could lead to situations in which a civil settlement in fact fails to cover the totality of a victim’s damages even if the amount is enough to pay for the victim’s out-of-pocket expenses. The State argues that is the case here. But the State relied on conclusory assertions in the victim’s settlement demand letter and offered no other evidence of the victim’s actual total damages. The statute governing restitution requires a set off to prevent a double recovery when the two amounts overlap. On the record before us, the State failed to carry its burden to prove the amount of restitution.

We conclude the trial court erred by failing to set off the civil settlement against the amount of restitution under section 775.089(8), Florida Statutes. We reverse the restitution order and remand for the entry of a new restitution order for the undisputed amount of $878.40.

REVERSED and REMANDED with instructions.

OSTERHAUS, J., concurs; MAKAR, J., concurs dubitante with opinion.