TIMOTHY MOORE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Timothy Moore appeals his sentence for grand theft of a motor vehicle and possession of a vehicle with altered VIN, challenging the restitution award for tools stolen from the victim's truck. The court affirms the conviction and sentence but reverses the portion of the restitution order requiring payment for the stolen tools, finding insufficient evidence linking Moore to the theft or the tools.
Restitution for the stolen tools cannot be imposed because the state failed to demonstrate a significant relationship between the loss and the defendant's criminal acts, failed to prove Moore was the actual thief, and failed to present evidence contradicting Moore's testimony that the tools were not in the truck when he acquired possession of it.
[1] Restitution for losses not directly or indirectly caused by the criminal offense for which a defendant was convicted is inappropriate.
[2] A significant relationship must be demonstrated between the loss sustained by the victim and the defendant's acts in committing the offense for which the defendant was co…
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Join FLexlaw to unlock all legal intelligence“Before a trial court can impose restitution, two requisites must be established: (1) the loss was caused directly or indirectly by the criminal offense; and (2) there is a significant relationship between the loss and the crime.”
Establishes the legal standard for imposing restitution
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Join FLexlaw to unlock all legal intelligenceMoore was convicted by jury of grand theft of a motor vehicle and possession of a vehicle with altered VIN. The victim's truck was stolen on September…
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THOMPSON, Judge.
Timothy Moore (“Moore”) appeals a portion of his sentence requiring him to pay restitution to the victim, as a condition of probation, for the victim’s loss of tools that occurred as a result of the victim’s truck being stolen. We affirm the conviction, but we strike that portion of the sentencing order requiring restitution be paid for the stolen tools.
Moore was convicted by a jury of grand theft of a motor vehicle1 and possession of a vehicle with altered vehicle identification number.2 He was sentenced as a habitual felony offender to eight years incarceration on each count, each sentence to run concurrently, followed by two years of probation. At the time of sentencing, Moore only objected to the award of restitution for the tools which the victim testified were in the truck when it was stolen, but which were not referenced in the information. The tools were never recovered.
Trial testimony indicated the truck was stolen on 5 September 1991 and recovered on 20 November 1991. The truck was in another’s possession for at least five weeks after it was stolen and before Moore received it. This testimony is uncontradicted. After his apprehension, Moore confessed that he bought the truck knowing it was stolen. He further testified there were no tools in the truck at the time he purchased it. There was no evidence presented that Moore was the actual thief of the truck.
Before a trial court can impose restitution, two requisites must be established: (1) the loss was caused directly or indirectly by the criminal offense; and (2) there is a significant relationship between the loss and the crime. State v. Williams, 520 So. 2d 276 (Fla.1988). In this case, Moore admitted purchasing the truck for $500.00 several weeks after it was stolen, but denies there were tools in the truck at the time he acquired possession. The state presented no evidence at trial contradicting this testimony. More importantly, “the state must demonstrate a significant relationship between the loss or damage sustained by the victim and the defendant’s acts in committing the offense for which [the defendant] was convicted.” Powell v. State, 595 So. 2d 223 (Fla. 1st DCA 1992), rev. denied, 601 So. 2d 553 (Fla.1992); Faulkner v. State, 582 So. 2d 783 (Fla. 5th DCA 1991). The state has not demonstrated such a relationship in this case. The state assumes that Moore is in fact the thief of the truck and that he knew there were tools in the truck at the time of the theft. These facts were not proved. Therefore, the cases relied upon by the state do not apply.
Further, since the state did not present evidence Moore was the actual thief or that he was “linked to the unrecovered property in any other way,” restitution for the unrecovered property is inappropriate. Mansingh v. State, 588 So. 2d 636 (Fla. 1st DCA 1991); Wilcox v. State, 579 So. 2d 148 (Fla. 1st DCA 1991). Although it can be argued that Moore is the actual thief because of his “unexplained” possession of stolen property,3 factors including the length of time between the theft and the recovery of the truck, along with Moore’s inculpating statement, mitigate against this conclusion. The possession is not sufficiently “recent” to qualify for the presumption. See T.S.R. v. State, 596 So. 2d 766 (Fla. 5th DCA 1992). The order for restitution for the tools is reversed.
Moore also appeals the trial court’s order for restitution for the victim’s truck since the truck was returned to the victim. This claim is proeedurally barred on appeal because it was not preserved at the trial level. At the sentencing hearing, Moore and his attorney only objected to the restitution for the tools. Since they did not object to the restitution or the amount for the victim’s truck, the objection is waived, Anthony v. State, 585 So. 2d 1172 (Fla. 2d DCA 1991), and proeedurally barred. Brooks v. State, 605 So. 2d 522 (Fla. 4th DCA 1992); Bayer v. State, 597 So. 2d 870 (Fla. 5th DCA 1992). Moore’s other claims are without merit.
SENTENCE AFFIRMED; RESTITUTION REVERSED.
HARRIS, C.J., and GOSHORN, J., concur. . § 812.014(1), Fla.Stat. (1991).
. § 319.33(1)(d), Fla.Stat. (1991).
.§ 812.022, Fla.Stat. (1991).
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Citator
Cited By
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Anderson v. State, 649 So. 2d 890 (Fla. 2d DCA 1995)…573 So. 2d 330 (Fla.1991). Even if this were not the case, Anderson has waived this issue by failing to object at the trial level to either the method for determining the restitution or the approximate valuation of the items stolen. Moore v. State, 623 So. 2d 842 (Fla. 5th DCA 1993); Primm v. State, 614 So. 2d 658 (Fla. 2d DCA 1993). Anderson did object, however, to payment of restitution for items he allegedly did not steal. The trial judge agreed that the value of a shotgun and a Colt .45 should have bee…
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J.S. v. State, 717 So. 2d 175 (Fla. 4th DCA 1998)…appellate review. See D.B. v. State, 689 So. 2d 420 (Fla. 4th DCA 1997); Owens v. State, 679 So. 2d 44 (Fla. 1st DCA 1996); Gliszczynski v. State, 654 So. 2d 579 (Fla. 5th DCA 1995); M.A.V. v. State, 643 So. 2d 81 (Fla. 2d DCA 1994); Moore v. State, 623 So. 2d 842 (Fla. 5th DCA 1993); Bayer v. State, 597 So. 2d 870 (Fla. 5th DCA 1992). This finding that there has been no preservation of a portion of the restitution issues is not in conflict with State v. T.M.B., 23 Fla. L. Weekly S180 (Fla.1998). In that cas…
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Bakos v. State, 698 So. 2d 943 (Fla. 4th DCA 1997)…directly or indirectly by the defendant’s offense.” Fla. Stat. § 775.089(l)(a) (1995). The State must establish by a preponderance of the evidence that a significant relationship existed between the loss and the defendant’s actions. Moore v. State, 623 So. 2d 842 (Fla. 5th DCA 1993). Restitution cannot be awarded for losses which occur outside the time alleged in the Information. Stewart v. State, 629 So. 2d 982 (Fla. 5th DCA 1993). And, while the Court is not restricted to fair market value in determining r…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- State v. Williams, 520 So. 2d 276 (Fla. 1988)
- Mansingh v. State, 588 So. 2d 636 (Fla. 1st DCA 1991)
- T.S.R. v. State, 596 So. 2d 766 (Fla. 5th DCA 1992)
- Estep v. State, 597 So. 2d 870 (Fla. 2d DCA 1992)
- Faulkner v. State, 582 So. 2d 783 (Fla. 5th DCA 1991)
- H.L.L. v. State, 595 So. 2d 223 (Fla. 2d DCA 1992)
- Powell v. State, 595 So. 2d 223 (Fla. 1st DCA 1992)
- Pincus v. The Honorable James T. Carlisle, 585 So. 2d 1172 (Fla. 4th DCA 1991)
- Anthony v. State, 585 So. 2d 1172 (Fla. 2d DCA 1991)
- Brooks v. State, 605 So. 2d 522 (Fla. 4th DCA 1992)