WALTER F. WATSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that restitution to a victim's mother for expenses beyond the victim's direct medical and mental health costs is improper, as it extends the definition of 'aggrieved party' beyond statutory limits.
[1] An upward departure from sentencing guidelines is improper when based on the defendant's abuse of familial or custodial authority.
[2] Restitution awarded to a victim's parent may not include the parent's lost income or expenses resulting from their own emotional distress or divorce.
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Join FLexlaw to unlock all legal intelligenceWalter Watson was convicted of attempted lewd assault on a child. The trial court ordered restitution to the victim child for medical expenses and to …
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PER CURIAM.
Walter Watson was charged by information with a violation of section 800.-04(1), Florida Statutes (1989) for committing a lewd, lascivious and indecent act upon or in the presence of a child. He was convicted and sentenced for the lesser included offenses of attempted lewd, lascivious or indecent assault upon a child. Watson appeals and raises several issues. First, he argues that the trial court imper-missibly entered an upward departure from the sentencing guidelines on the basis that Watson had abused his position of familial and custodial authority. (Watson was the victim’s stepfather.) We agree that an upward departure on this basis is improper. See Wilson v. State, 567 So. 2d 425 (Fla. 1990.) Accordingly, we vacate Watson’s sentence and remand for resentencing.
Second, Watson argues that the trial court impermissibly awarded restitution which was unjustified pursuant to section 775.089, Florida Statutes (1989). This section provides in pertinent part:
(l)(a) In addition to any punishment, the court shall order the defendant to make restitution to the victim for damage or loss caused directly or indirectly by the defendant’s offense, unless it finds clear and compelling reasons not to order such restitution ... (c) The term “victim” as used in this section and in any provision of law relating to restitution includes the aggrieved party, the aggrieved party’s estate if the aggrieved party is deceased, and the aggrieved party’s next of kin if the aggrieved party is deceased as a result of the offense.
The trial court ordered Watson to pay $5,024.89 in restitution to the victim child to cover her physical and mental health expenses. In addition, the court also ordered Watson to pay $53,696.52 in restitution to the mother of the child (Helene Stockenberg) as an “aggrieved party” for her expenses and lost income while attending to the child’s maladies. This included expenses resulting from the mother’s own consequent divorce from Watson ($1626), the mother’s lost wages ($31,360), a mortgage ($4000), a certificate of deposit which had been forfeited ($9,000), car loans (totalling $4179), car insurance ($295), credit card charges (totalling $1236), and a loan to buy a used car ($2000). Watson argues that the award of restitution to the mother for $53,696 improperly extended the definition of “aggrieved party”. We agree and reverse the award of restitution to the victim’s mother for those expenses other than the child’s medical and mental health costs.1
In K.M.C. v. State, 485 So. 2d 1296 (Fla. 1st DCA 1986) a 15 year old girl caused a schoolyard fight with another child. As a result, the mother of the victim child alleged that she (the mother) had a nervous condition which required treatment and that she had suffered lost wages. The appellate court ruled that restitution could not include the victim’s mother’s medical bills and lost wages allegedly resulting from her nervous condition. The court ruled that the nervous condition was her emotional reaction to the fight and not directly received in the fight. However the court ruled that restitution could be ordered for the medical expenses personally incurred by the mother in caring for injuries to the child. The medical bills and lost wages which were disallowed were for the treatment of the mother’s injuries, not the child’s injuries. Applying K.M.C. to the instant case, the medical and mental health expenses that the mother incurred while caring for the injuries to the child would be recoverable. The other tangential expenses which she incurred on her own behalf would not be recoverable.
Likewise, in O’Steen v. State, 547 So. 2d 235 (Fla. 1st DCA 1989) the court applied a two prong test to determine whether restitution could be awarded: (1) was the damage or loss for which restitution is ordered caused directly or indirectly by the defendant’s offense, (2) was there a significant relationship between the damage to the victim and the crime proved. In the instant case the majority of the damages which were awarded were not the result of the injury to the victim but, rather, were more attenuated expenses unrelated to the crime.
Accordingly, we reverse and remand for further consistent proceedings. We note that if on remand the victim’s mother is able to present other proof of less attenuated expenses which were incurred by the victim as a result of the crime such expenses may be considered in an award of restitution.
REVERSED and REMANDED.
ANSTEAD and DELL, JJ., and WESSEL, JOHN D., Associate Judge, concur. . We wish to emphasize however that we are affirming the award of restitution regarding the child’s medical and mental health expenses.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Efrain Ocasio v. State, 586 So. 2d 1177 (Fla. 4th DCA 1991)…of restitution to a person in the mother’s posture here. She is not a victim within the meaning of section (l)(c), since the aggrieved party [the child] is not deceased. Furthermore, we rejected a similar award in the recent case of Watson v. State, 579 So. 2d 900 (Fla. 4th DCA 1991). During the course of the proceeding in the trial court, in fact on the day he bonded out of jail, appellant transferred by quitclaim deed to his daughter, Carmen, a house and a condominium which he owned. The total cash down pa…
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Gluesenkamp v. State, 636 So. 2d 1367 (Fla. 1st DCA 1994)…assed within statutory language of section 775.089(l)(c)); Ocasio v. State, 586 So. 2d 1177 (Fla. 4th DCA 1991) (mother of child victim is not a victim within the meaning of section of 775.089(l)(e) since the child is not deceased); Watson v. State, 579 So. 2d 900 (Fla. 4th DCA 1991) (award of restitution to mother of victim for expenses other than child’s medical and mental health costs improperly extended the definition of “aggrieved party”). The state argues that section 948.03(l)(e) does not preclude the…
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Firkey v. State, 593 So. 2d 1155 (Fla. 4th DCA 1992)…psychologically for life. We reverse. The supreme court rejected “familial custodial authority” as a valid reason for departure in Wilson v. State, 567 So. 2d 425 (Fla.1990) and Cumbie v. State, 574 So. 2d 1074 (Fla.1991); accord Watson v. State, 579 So. 2d 900 (Fla. 4th DCA 1991). The victim’s extreme vulnerability does not provide a valid reason for departure because appellant’s crime, attempted sexual battery of a child eleven years of age or younger, contemplates the victim’s tender years and vulnerabi…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wilson v. State, 567 So. 2d 425 (Fla. 1990)
- O'Steen v. State, 547 So. 2d 235 (Fla. 1st DCA 1989)
- K.M.C. v. State, 485 So. 2d 1296 (Fla. 1st DCA 1986)