JOHNNY ALBERTIE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Albertie appeals a restitution order imposed after pleading guilty to possessing with intent to sell illegally copied compact disks. The court reverses because restitution was ordered to the Recording Industry Association of America (RIAA), a trade association, rather than to the actual record companies whose copyrights were infringed, and the RIAA does not qualify as a 'victim' under Florida law.
The RIAA does not qualify as a 'victim' entitled to restitution under Florida law because it neither itself suffered a direct loss from the reproduction of compact disks nor falls within the 'conduit' exception that applies when a collection agency merely passes along restitution to the actual injured parties.
[1] A trade association does not qualify as a "victim" for the purpose of receiving restitution under Florida statutes when it does not itself suffer a loss and does not act…
[2] Restitution may not be awarded to a third party that treats restitution payments as general income rather than remitting them to the entity that suffered the loss.
Previewing 2 of 3 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 RIAA does not qualify as a "victim," which may be the subject of a restitution order under our statutes”
Establishes the central holding that trade associations cannot receive restitution
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Join FLexlaw to unlock all legal intelligenceAlbertie pleaded guilty to possessing with intent to sell 818 compact disks that he had unlawfully burned from legitimately purchased recordings. A re…
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SCHWARTZ, Senior Judge.
Albertie appeals from an order of restitution imposed after he pled guilty to possessing with intent to sell 818 compact disks, which he had unlawfully “burned” from legitimately purchased recordings. Because the restitution was ordered to the Recording Industry Association of America (RIAA), a trade association for record companies, rather than the particular companies (the exact identity of which was undetermined) whose recordings had been unlawfully reproduced, we reverse the order under review.
This holding is based on the determination that, as was held in the well-reasoned cases of People v. Colon, 8 Misc.3d 569, 798 N.Y.S.2d 856 (N.Y.Sup.Ct.2005), affirmed as modified, 46 A.D.3d 260, 847 N.Y.S.2d 44 (N.Y.App.Div.2007), and State v. Awawdeh, 72 Wash.App. 373, 864 P. 2d 965 (1994), review denied, 124 Wash.2d 1004, 877 P. 2d 1288 (1994), cert. denied, 513 U.S. 970, 115 S.Ct. 441, 130 L.Ed.2d 352 (1994), the RIAA does not qualify as a “victim,” which may be the subject of a restitution order under our statutes. See § 775.089(l)(c), Fla. Stat. (2006).1-2 This, in turn, is the case because the RIAA neither itself suffered a “loss” from the forgery of its members’ compact disks, nor falls within the “conduit” exception to the rule requiring such a loss, as recognized in Seidman v. State, 847 So. 2d 1144, 1146 (Fla. 4th DCA 2003). The exception applies when a collection agency merely passes along the sums received to the “real” victims. In this case, however, the RIAA does not remit any restitution received to the entity which made the recording, but rather in effect treats any restitution payments as general income, deducting them from the “dues” payments it requires from all of its members. Thus, the RIAA falls directly within the category of affected, but non-victim, third parties to which restitution may not be awarded. See Lewis v. State, 874 So. 2d 18 (Fla. 4th DCA 2004); Jones v. State, 846 So. 2d 662 (Fla. 2d DCA 2003); Sheppard v. State, 753 So. 2d 748 (Fla. 2d DCA 2000); Eloshway v. State, 553 So. 2d 1258 (Fla. 4th DCA 1989), review denied, 564 So. 2d 486 (Fla.1990).
Reversed.
. Section 775.089(l)(c) provides:
The term "victim” as used in this section and in any provision of law relating to restitution means each person who suffers property damage or loss, monetary expense, or physical injury or death as a direct or indirect result of the defendant's offense or criminal episode, and also includes the victim’s estate if the victim is deceased, and the victim's next of kin if the victim is deceased as a result of the offense.
. This determination makes it unnecessaiy to consider the appellant’s other arguments for reversal.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Eloshway v. State, 553 So. 2d 1258 (Fla. 4th DCA 1989)
- Sheppard v. State, 753 So. 2d 748 (Fla. 2d DCA 2000)
- Jones v. State, 846 So. 2d 662 (Fla. 2d DCA 2003)
- Lewis v. State, 874 So. 2d 18 (Fla. 4th DCA 2004)
- Federico Garcia v. State, 847 So. 2d 1144 (Fla. 3d DCA 2003)
- Wilmer v. Johnson, 513 U.S. 970 (U.S. 1994)
- Cole v. Singletary, 513 U.S. 970 (U.S. 1994)