SALLY MAYER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court affirmed in part and reversed in part a restitution order imposed on a defendant convicted of dealing in stolen property. The court held that the cost of a special audit to determine the extent of the loss was recoverable as restitution because it was directly and indirectly caused by the defendant's offense.
Yes, the cost of the audit was a recoverable expense because it was directly and indirectly caused by the defendant's offense and bore a significant relationship to it. However, the court reversed the portion of the order that improperly delegated the formulation of a payment schedule to a probation officer.
[1] Restitution orders may include costs incurred by an employer for a special audit to determine the extent of monetary loss caused by an employee's criminal offense.
[2] Injuries compensated for by restitution must bear a significant relationship to the offense charged, in addition to a causal relationship.
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Join FLexlaw to unlock all legal intelligence“Shall order ... restitution ... caused directly or indirectly by the defendant’s offense.”
Establishes the statutory basis for restitution.
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Join FLexlaw to unlock all legal intelligenceSally Mayer pled nolo contendere to dealing in stolen property and was ordered to pay restitution. The restitution order included $2,500 for a special…
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W. SHARP, Judge.
Mayer appeals from an order of restitution in a criminal case, imposed on her after she pled nolo contendere to three counts of dealing in stolen property.1 She had been additionally charged with three counts of grand theft2 but was allowed to plead to the lesser included offense. She argues the trial court erred by including in the restitution order of $5,976.07, the sum of $2,500. Mayer’s employer expended that sum to pay for having a special audit (performed by accountants) to determine how much money Mayer took from the business, and how it was accomplished. We affirm in part.
We think this case is similar to Hodge v. State, 603 So. 2d 1329 (Fla. 4th DCA 1992). In that case, the defendant was convicted of theft and the employer’s fidelity bond premium was increased. The increase was held to be an indirect loss from the theft, and the proper subject of a restitution order. In addition, the time spent and the cost necessary to determine and document the extent of the monetary loss, as required by the fidelity bonding company, was held to be recoverable in restitution.
Restitution is provided for by section 775.-089(1). It provides that the court:
Shall order ... restitution ... caused directly or indirectly by the defendant’s offense.
Interpreting this statute, the Florida Supreme Court has held that injuries com-pensed for by restitution must bear a significant relationship to the offense charged. State v. Williams, 520 So. 2d 276 (Fla.1988). See also Bayer v. State, 597 So. 2d 870 (Fla. 5th DCA 1992); Peralta v. State, 596 So. 2d 1220 (Fla. 5th DCA 1992). In Williams, a defendant was convicted of leaving the scene of an accident with personal injuries. The supreme court held that Williams’ probation could not be conditioned on paying damages which arose out of the accident, because they were not caused (directly or indirectly) by the offense for which she was convicted. The court noted that the significant relationship test does not replace the statute’s causal relationship requirement. It is in addition to it.
In Powell v. State, 595 So. 2d 223 (Fla. 1st DCA), rev. denied, 601 So. 2d 553 (Fla.1992), the court found no causal relationship between the criminal offense and the restitution ordered. The court said that the damage or loss must be caused directly or indirectly by the defendant’s convicted offense, and whether there was a significant relationship between the damage and the crime must also be shown. In Hodge the supreme court held that the damages ordered in restitution must be foreseeable and the court likened causation to proximate cause (i.edamage caused directly by the wrong).
In this case, Mayer’s employer spent $2,500 on an audit to determine the extent of the loss. There was no other way in which to determine the amount of the loss. It was foreseeable that a business employer, such as Mayer’s, would need an accountant to go through its books to determine the amount of money stolen.
This information was also required so that the state would know how to properly charge Mayer with the appropriate degree of theft. Additionally, if the employer were insured for the loss, proof of the amount would be necessary for it to recover insurance proceeds. We conclude there was a significant relationship between the expense or loss and the criminal act. Without Mayer’s criminal act, there would have been no need for an audit of the books to determine the extent of the theft.
However, the specific offense for which Mayer was convicted is relevant because the rule states that restitution must be linked to the offense for which the defendant is convicted. Williams. Here, Mayer was convicted of section 812.019(1).3 That section reads:
A person who traffics in, or endeavors to traffic in, property that he knows or should know was stolen shall be guilty of a felony in the second degree....
In this case, Mayer embezzled her employer’s money through a check writing scheme. Apparently the “stolen property” dealt in was the checks she unlawfully issued on her employer’s account. The writing of the checks, and the sale of the checks, were the means by which Mayer stole funds from her employer. Thus, it was proper to include expenses for the audit in the restitution order because the “dealing” was an integral part of Mayer’s theft scheme. Permitting Mayer to plead to the lesser included offense of dealing in stolen property makes no material difference.
We agree with Mayer, however, that the lower court erroneously delegated to the probation officer the duty of formulating a payment schedule. See Ashe v. State, 582 So. 2d 759 (Fla. 1st DCA 1991); § 775.-089(3)(a) and (c), Fla.Stat. (1991). That portion of the order should be reversed.
AFFIRMED in part, REVERSED in part, REMANDED.
HARRIS, C.J., and THOMPSON, J., concur. . § 812.019, Fla.Stat. (1989).
. § 812.014, Fla.Stat. (1989).
. The judgment contained in the record does not specifically provide that Mayer was convicted of subsection (1). However, the only other subsection in the statute, subsection (2), provides for a felony of the first degree and the judgment indicates Mayer was convicted of a felony in the second degree. Thus, hy process of elimination, Mayer must have heen convicted of section 812.-019(1).
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Schuette v. State, 822 So. 2d 1275 (Fla. 2002)…or Schuette relies upon the effect of the 1993 amendment in arguing their respective positions, we need not decide whether Judge Griffin's interpretation is correct in order to resolve the conflict presented in this case. . See also Mayer v. State, 632 So. 2d 678, 679 (Fla. 5th DCA 1994) (holding that restitution order properly included amount expended by employer to pay for having a special audit performed by accountants to determine how much money defendant took from business and how it was accomplished be…
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Edwards v. State, 892 So. 2d 1192 (Fla. 5th DCA 2005)…ablished that a trial court cannot delegate to a probation officer the duty of formulating a restitution payment schedule. E.g., Fichera v. State, 688 So. 2d 453 (Fla. 1st DCA 1997); Duby v. State, 651 So. 2d 800 (Fla. 1st DCA 1995); Mayer v. State, 632 So. 2d 678 (Fla. 5th DCA 1994); Strickland v. State, 610 So. 2d 705 (Fla. 4th DCA 1993); Ashe v. State, 582 So. 2d 759 (Fla. 1st DCA 1991). In order to revoke Edwards’ probation the lower court was required to make a finding that she had the present ability t…
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Schneider v. State, 972 So. 2d 1079 (Fla. 5th DCA 2008)…late court held that these expenses were too remote. The State claims the legal fees incurred in this case are similar to investigative costs which are properly awarded as restitution. In support of its position, the State relies on Mayer v. State, 632 So. 2d 678 (Fla. 5th DCA 1994) and Glaubius, 688 So. 2d 913. In both of those cases it was held that investigative costs for the purpose of discovery and documentation of the crime were properly awarded as restitution. The present case, however, does not invol…
Previewing 3 of 4 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)
- Estep v. State, 597 So. 2d 870 (Fla. 2d DCA 1992)
- Ashe v. State, 582 So. 2d 759 (Fla. 1st 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)
- Hodge v. State, 603 So. 2d 1329 (Fla. 4th DCA 1992)
- Euclides E. Peralta v. State, 596 So. 2d 1220 (Fla. 5th DCA 1992)