MICHAEL AVERY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Avery appealed a restitution order requiring him to pay $1,824.06 after pleading guilty to grand theft. The court reversed and remanded, finding that the trial court improperly included restitution for a separate, uncharged theft and investigative costs that could not be properly apportioned.
The court held that the trial court erred in ordering restitution for the $1,311.06 theft because it was a separate offense for which Avery had not been charged and therefore could not affect restitution for the charged theft. The case was remanded to determine what portion of the investigative costs pertained to the original $758 theft that was actually charged.
[1] Restitution cannot be ordered for offenses for which a defendant has not been charged.
[2] Investigative costs are recoverable as restitution only if substantiated and reasonable.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the arrest warrant only referenced the original $758 that Avery already had repaid. Additionally, the factual basis recited at Avery's plea hearing referred only to the $758 theft. As such, the second theft is a separate offense for which Avery has not been charged and which cannot affect the calculation of restitution here.”
This quote establishes the court's key holding that restitution cannot be imposed for an uncharged separate offense, even if evidence of that offense is presented at restitution hearing.
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Join FLexlaw to unlock all legal intelligenceAvery, an employee of Gold Coast Eagle Distributors, pleaded guilty to grand theft for accepting cash payments from customers without remitting them t…
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DAVIS, Judge.
Michael Avery challenges the trial court’s final order of restitution requiring him to pay $1824.06 to Gold Coast Eagle Distributors. We reverse and remand for further proceedings.
Avery pleaded guilty to grand theft and was sentenced to two years’ probation and ordered to pay restitution, the amount to be determined. Avery did not attend the April 24, 2002, restitution hearing, but the State presented evidence that the charges arose when Avery, an employee of Gold Coast, accepted cash payments from customers without turning the money over to Gold Coast. Originally, he took $758.30, but the parties agree that he repaid that money. Jeff Lukowsky, the Gold Coast employee investigating the thefts, testified that his investigation led him to suspect that Avery also took $1311.06, that Avery had admitted to taking that amount, and that Avery had repaid $50 toward that amount. Lukowsky further testified to the costs of his investigation. The trial court ordered restitution in the amount of $1824.06, which consisted of the $1311.06 less the $50 repaid, plus $563 in investigative fees.
On appeal, Avery argues that the additional $1311.06 was not part of the original charge against him, that Lukowsky’s investigative costs were not substantiated or reasonable, and that he did not voluntarily waive his presence at the restitution hearing.
As to the restitution being ordered in Avery’s absence, we affirm without comment the trial court’s ruling that Avery voluntarily absented himself from the proceeding. We conclude, however, that the trial court erred in setting the amount of restitution.
The information charged that Avery
did knowingly and unlawfully obtain or use, or endeavor to obtain or use, certain property of another, to-wit [sic]: U.S. CURRENCY, the property of GOLD COAST EAGLE DISTRIBUTORS, the value of said property being three hundred ($300.00) dollars or more, but less than five thousand ($5,000.00) dollars, and in so doing intended to either per manently or temporarily deprive the said GOLD COAST EAGLE DISTRIBUTORS of a right to the property....
Although Lukowsky testified that he informed the investigating officer of the second theft of $1311.06, the arrest warrant only referenced the original $758 that Avery already had repaid. Additionally, the factual basis recited at Avery’s plea hearing referred only to the $758 theft. As such, the second theft is a separate offense for which Avery has not been charged and which cannot affect the calculation of restitution here. We therefore reverse the restitution order and remand for determination of what portion of the investigative costs pertained to the original $758 theft.
Reversed and remanded.
NORTHCUTT, J., and GREEN, OLIVER L., Senior Judge, Concur.
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Malarkey v. State, 975 So. 2d 538 (Fla. 2d DCA 2008)…the defendant’s agreement is limited to restitution arising out of the offense charged by the State as reflected in the information and/or by the factual basis for the plea set forth by the State when the plea is entered. See, e.g., Avery v. State, 838 So. 2d 1247 (Fla. 2d DCA 2003); Noland v. State, 734 So. 2d 464, 466 (Fla. 5th DCA 1999); Stewart v. State, 629 So. 2d 982, 983 (Fla. 5th DCA 1993). For example, in Avery, Avery was charged with grand theft arising out of the theft of cash payments made to Ave…
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Siminski v. State, 1 So. 3d 1161 (Fla. 2d DCA 2009)…wes, Mr. Siminski challenges the order of restitution. Analysis This case is controlled by our recent decision in Malarkey v. State, 975 So. 2d 538 (Fla. 2d DCA 2008), which issued after Mr. Siminski’s restitution hearing. See also Avery v. State, 838 So. 2d 1247 (Fla. 2d DCA 2003); Noland v. State, 734 So. 2d 464 (Fla. 5th DCA 1999); Stewart v. State, 629 So. 2d 982 (Fla. 5th DCA 1993). The proceedings in Malarkey followed the same course as Mr. Siminski’s: the information identified certain stolen items; h…
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Ferri v. State, 311 So. 3d 240 (Fla. 2d DCA 2020)…ntry of plea, information, or arrest warrant and thus "were not encompassed within the original [theft] charge against Malarkey[] and the theft of those items constitutes a separate offense with which Malarkey has not been charged"); Avery v. State, 838 So. 2d 1247, 1248 (Fla. 2d DCA 2003) (reversing restitution award and remanding where although victim testified he told law enforcement about the missing monies from the second theft, the arrest warrant only referenced the missing monies from the first theft th…
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