WILLIAM BOY HODGE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Compensation may be allowed for a victim's time and expenses reasonably incurred in investigating the extent of loss caused by an offense, as this constitutes a loss indirectly caused by the offense.
[1] Victim's reasonable expenses and time incurred in investigating the extent of loss caused by an offense are recoverable as restitution when such investigation is necessit…
[2] Restitution is to be awarded to the victim of the offense, and not to third parties who may have assisted in the investigation or suffered indirect consequences.
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Join FLexlaw to unlock all legal intelligenceAppellant embezzled funds by drawing checks against a victim's account and depositing them into his own. The victim incurred time and expenses investi…
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OWEN, WILLIAM C., Jr., Senior Judge.
The issue on this appeal from an order of restitution is whether compensation may be allowed for the victim’s time and expenses reasonably incurred in investigating and determining the extent of the loss or damage caused by the offense. We conclude under the facts of this case that it may, but reverse the order for redetermination of the amount and of the person to whom or entity to which restitution is properly due.
Appellant was authorized to draw checks against the bank account of Carroll Ful-mer 1 to pay truck drivers who hauled fruit brokered by Mr. Fulmer. Appellant drew a number of checks against the account but instead of paying the truckers he deposited the checks into his own account. This operation came to light after a number of irate truckers called Mr. Fulmer demanding to know when they would be paid.
At the restitution hearing, Mr. Fulmer testified to the number of hours that he, his wife, his son, his accountant, and two members of his office staff had worked, and as to the expense he had incurred, in order to (1) make certain that all truckers who had hauled fruit for him were paid so as to protect his business reputation, and (2) determine and document the extent of the loss in the detail necessary for him to be indemnified under an employee fidelity bond. Except for the office staff (who had worked only during regular hours and had received their regular wages), none of the persons conducting this investigation had been paid for their time. The order of restitution, in addition to directing an amount to be paid to Mr. Fulmer for the anticipated increase in his bond premium over the next ten years, specified an amount to be paid to Mr. Fulmer for his expenses, and specified an amount to be paid to each of the six individuals (including the already compensated staff members) who spent time in the investigation. Only that part of the restitution order compensating for the time and expense incurred is challenged.
Section 775.089(l)(a), Florida Statutes (1991), requires restitution to the victim for damage or loss caused directly or indirectly by the offense, unless the court finds clear and compelling reasons not to order such restitution. While section 775.-089(l)(c), Florida Statutes (1991), provides that the term “victim” includes the aggrieved party (and others not relevant here), the statute does not limit the scope of the term. Nonetheless, we think it clear from this record that the “victim” of appellant’s offense could be either Carroll Ful-mer or his company, but none of the others. Restitution should be restricted to the victim.
The amount appellant stole was, of course, a direct loss2 and the increased bond premium which the victim will incur as a consequence of appellant’s offense is an indirect loss.3 As to the reasonable value of the time necessarily spent and the costs necessarily incurred by the victim in order to determine and document the extent of the loss as required by the bonding company, we have no difficulty in concluding that such is likewise a loss caused at least indirectly, if not directly, by the appellant’s offense. There is a significant relationship between that loss and the crime, State v. Williams, 520 So. 2d 276 (Fla.1988), and we think it would be illogical to conclude otherwise.
In Ahnen v. State, 565 So. 2d 855 (Fla. 2d DCA 1990), and Powell v. State, 595 So. 2d 223 (Fla. 1st DCA 1992), investigative costs incurred by the victim were held not to be a loss caused by the offense, and thus not proper for restitution. We think those cases, in which the investigations were ordered at the whim of the victims, rather than out of necessity, are distinguishable from this case.4 Here, the extent of the loss was neither readily apparent nor provable and the investigation was required in order for the victim to sufficiently document the claim for indemnification under the fidelity bond.
Upon remand the trial court shall again determine the amount of restitution, which shall be limited to the amounts not challenged here plus such amount as the court finds from the evidence is the reasonable value of the time necessarily spent and expense necessarily and reasonably incurred by the victim in investigating the extent of the loss caused by the appellant’s offense. The trial court may make that determination from the record of the prior hearing, or in its discretion may re-open the matter for such additional evidence as the state and the appellant wish to present.
REVERSED AND REMANDED for further proceedings not inconsistent herewith.
LETTS, J., and ALDERMAN, JAMES E., Senior Justice, concur. .The record is not clear whether the currency was the property of Carol (sic) Fulmer & Company, Inc., as charged in the information, or the property of Carroll Fulmer, individually. The State and appellant, both at the restitution hearing and in their respective briefs, treat Carroll Fulmer, individually, as the victim. We will likewise.
. That amount is not involved here because the victim was indemnified by the surety and appellant has made separate arrangements for restitution to the surety.
. That amount is likewise not in issue here.
. The facts stated in the opinions in the Ahnen and Powell cases are abbreviated and we draw this distinction more on what we surmise than what is explicated in them. To the extent there is no valid distinction between those cases and this case, we are simply in disagreement as to what loss or damage is "indirectly" caused by the defendant's offense. We would, in any event, question these cases because they imply, if not hold, that (1) the damages must be such as were reasonably foreseeable (the test of causation relating to breach of contract damages), and (2) the element of causation is likened to the proximate causation requirement in tort (which is generally limited to damages caused directly by the tort), standards more restrictive than the clear language of Section 775.089(l)(a), Fla.Stat. (1991).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Glaubius v. State, 688 So. 2d 913 (Fla. 1997)…case, the Fourth District has determined that investigative costs expended to determine whether Glaubius was engaging in criminal misconduct are recoverable because those costs bear a significant relationship to the offense. See also Hodge v. State, 603 So. 2d 1329 (Fla. 4th DCA 1992). On the other hand, the First District concluded in Powell v. State, 595 So. 2d 223 (Fla. 1st DCA 1992), that both in-house costs and fees paid to a private investigator for investigating whether a defendant committed the offense…
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Schuette v. State, 822 So. 2d 1275 (Fla. 2002)…ble); Osteen v. State, 616 So. 2d 1215, 1218 (Fla. 5th DCA 1993) (explaining that district courts utilize proximate cause analysis in resolving whether a restitution award is a direct or indirect cause of a criminal offense). But see Hodge v. State, 603 So. 2d 1329, 1331 n. 4 (Fla. 4th DCA 1992) (rejecting notion that damages must be reasonably foreseeable or that the element of causation should be likened to the proximate causation requirement in tort, because this would be more restrictive than the "clear la…
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Osteen v. State, 616 So. 2d 1215 (Fla. 5th DCA 1993)…of the theft is a well established measure of restitution. As the trial court’s award did not exceed the measure of damages available to a victim in a civil suit, the district court affirmed the trial court’s award. Additionally, in Hodge v. State, 603 So. 2d 1329 (Fla. 4th DCA 1992), the court held that a theft victim was entitled to recover the reasonable value of the time necessarily spent and the costs necessarily incurred in documenting the extent of his losses suffered, as required by his bonding compan…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Williams, 520 So. 2d 276 (Fla. 1988)
- H.L.L. v. State, 595 So. 2d 223 (Fla. 2d DCA 1992)
- Powell v. State, 595 So. 2d 223 (Fla. 1st DCA 1992)
- Ahnen v. State, 565 So. 2d 855 (Fla. 2d DCA 1990)