text:
    Kwame FERNANDERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4459
    District Court of Appeal of Florida, First District.
    April 22, 2019
    Andy Thomas, Public Defender, and Maria Ines Suber, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Amanda D. Stokes, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

After a joint trial with his co-defendant Quintae Edwards, Kwame Fernanders was convicted of home invasion robbery with a firearm, two counts of kidnapping to commit or facilitate a felony with a firearm, two counts of false imprisonment, and grand theft of a motor vehicle. Fernanders appeals, claiming prejudicial error in the trial court's denial of a motion to sever their trials. We reject this argument and affirm.

On the morning of trial, Edwards argued that his case should be tried separately from Fernanders' because their defenses were antagonistic. Specifically, Edwards argued that Fernanders planned to testify that Edwards coerced him to commit the offenses, which would prejudice Edwards, while Edwards would make a general denial of the allegations. Fernanders adopted Edwards' motion and asserted that if they were tried separately (and Edwards first), it was possible that Edwards might testify on behalf of Fernanders to confirm the alleged coercion. The trial court denied the motion, referring to it as an "adoptive" motion on Fernanders' part.

At trial, overwhelming evidence was presented that Fernanders, Edwards, and another co-defendant, Kayla Black, invaded an apartment, held four victims at gunpoint, assaulted them, and bound them with tape while ransacking the apartment for goods to steal. Edwards stayed at the apartment with three victims while Fernanders and Black drove one, at gunpoint, to a bank to withdraw money; Fernanders told this victim that she was lucky he decided not to kill her. Law enforcement tracked the three to Tallahassee and found Edwards at a restaurant with a car stolen from one of the victims. Fernanders and Black were tracked to a hotel room, where officers found them asleep in bed alongside a gun, which Fernanders reached for but could not grab before being restrained by officers. DNA evidence, fingerprints, and the recovery of scores of stolen goods connected the defendants to the crimes. Fernanders later wrote letters to friends and family from jail, asking them to tell the victims to decide whether they would rather get the charges dropped and live or to proceed and die. Black testified for the state, stating that Fernanders was her boyfriend at the time and she went along with the crimes. She testified that Fernanders and Edwards were like brothers and rejected any idea that one coerced the other. Fernanders then testified that he committed all of the acts but only due to the coercion of Edwards. The jury rejected this argument.

Fernanders argues that the trial court abused its discretion in denying severance because Edwards' defense was antagonistic to his own and it deprived him of the possibility that Edwards would testify on his behalf and admit that he coerced Fernanders. We find that the trial court committed no error in denying Fernanders' "adoptive" motion to sever.

First, Fernanders cites Crum v. State , 398 So.2d 810, 811 (Fla. 1981), where the defendant argued at trial that his and his co-defendant's "defenses were so antagonistic that he would be prejudiced if the trials were not severed" because the codefendant planned to reverse from his prior statements-that neither of the two were present when the victims died-and testify that the defendant was the murderer. Here, however, the co-defendant's defense was not prejudicial to Fernanders in any way. Edwards did not testify and simply denied the charges, which did not affect Fernanders' defense of coercion. See Biscardi v. State , 511 So.2d 575, 579 (Fla. 4th DCA 1987) (finding that the appellant's defense of coercion was not antagonistic to his co-defendants even where the co-defendant testified that he did not engage in coercion).

Second, Fernanders believed that, if Edwards had been tried first, he might later testify on behalf of Fernanders. Even if that may have happened, Fernanders has provided no authority stating that a trial court must work together with co-defendants to give one or more of them tactical advantages. Cf. McCray v. State , 416 So.2d 804, 806 (Fla. 1982) ("Specifically, the fact that the defendant might have a better chance of acquittal or a strategic advantage if tried separately does not establish the right to a severance."). This is not the purpose of the rule regulating severance. "Rather, the rule is designed to assure a fair determination of each defendant's guilt or innocence." Id.

Fernanders' argument that the joint trial denied him a fair determination of his guilt is meritless, and we AFFIRM his conviction.

Wolf, Winokur, and Jay, JJ., concur.

      Regardless, "hostility among defendants, or an attempt by one defendant to escape punishment by throwing the blame on a codefendant," is not "a sufficient reason, by itself, to require severance." McCray v. State , 416 So.2d 804, 806 (Fla. 1982) ; see also Biscardi v. State , 511 So.2d 575, 578 (Fla. 4th DCA 1987) ("the object of the severance rule is not to provide defendants with an absolute right of severance when requested, [or] when they blame each other for the crime").

      The record casts doubt that Edwards might have ever testified on Fernanders' behalf. Edwards' counsel told Fernanders' counsel that Edwards "would not be testifying in that manner to help [Fernanders] at any trial - whether this one or some one in the future."

      While we rule that the denial of the severance motion did not deny Fernanders of a fair trial, we take no position on whether the denial prejudiced Edwards.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Tyrone WELLS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4309
    District Court of Appeal of Florida, First District.
    April 22, 2019
    Tyrone Wells, pro se, Appellant.
    Ashley Moody, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

The Appellant, Tyrone Wells, appeals an order denying five of his six claims for postconviction relief raised pursuant to Florida Rule of Criminal Procedure 3.850. He asserts on appeal, among other arguments, that the court erred by not addressing the sixth of his claims for relief, which alleged that defense counsel was ineffective for failing to properly advise him with respect to plea negotiations. The appellant advised the trial court that it failed to rule on this claim in his motion for rehearing, but the trial court denied the motion without comment.

We agree with the Appellant that the circuit court's order did not address the sixth claim that was labeled "Ground Six" in his motion. "Rather than forming a basis to reverse the order, however, the lack of a ruling on this claim deprives this court of jurisdiction." Bachman v. State , 253 So.3d 1250 (Fla. 1st DCA 2018) ; Hanner v. State , 228 So.3d 1161 (Fla. 1st DCA 2017) (dismissing where "[o]n appeal, Appellant argues that the postconviction court erred by failing to address all of the claims in his motion"). "It is well-settled that an order disposing of some, but not all of the claims in a motion for postconviction relief is not an appealable final order." Lake v. State , 53 So.3d 1125, 1126 (Fla. 1st DCA 2011). Accordingly, we dismiss this appeal without prejudice to the appellant's ability to file a future appeal after the circuit court has ruled on all of his claims.

DISMISSED .

Lewis, Winsor, and M.K. Thomas, JJ., concur.


text:
    Issac J. TILLMAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-4007
    District Court of Appeal of Florida, First District.
    April 22, 2019
    Issac J. Tillman, pro se, Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

The Court has determined that the appeal is untimely. Accordingly, the appeal is dismissed. Any request for belated appeal must be filed pursuant to Florida Rule of Appellate Procedure 9.141(c).

Ray, Osterhaus, and Winokur, JJ., concur.


text:
    Albert DELON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3648
    District Court of Appeal of Florida, First District.
    April 22, 2019
    Albert Delon, pro se, Appellant.
    Ashley Moody, Attorney General, and Barbara Debelius, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant, Albert Delon, appeals the trial court's summary denial of five of the claims raised in his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. As Appellant contends, and as the State conceded in its response to our Toler order, the summary denial of Ground 1 was improper. See McLin v. State , 827 So.2d 948, 954 (Fla. 2002) (noting that to uphold the summary denial of a postconviction claim, the claim must either be facially invalid or conclusively refuted by the record). As such, reversal and remand as to Ground 1 is warranted.

In Ground 1, Appellant alleged that trial counsel failed to investigate the validity of the State's notice of intent to classify him as a prison releasee reoffender ("PRR") based on a prior conviction for the sale or delivery of cocaine, which the State agreed to withdraw in exchange for Appellant's guilty plea. He also alleged that he would not have pled had he known that the State could not seek PRR sentencing. Although the trial court found that the record refuted the allegations based upon Appellant's prior conviction and sentence for that offense, Appellant was, as the trial court found, sentenced to six months in a county jail, not a state correctional facility operated by the Department of Corrections or a private vendor. See § 775.082(9)(a)1., Fla. Stat. (2010) (defining a PRR as a defendant who commits or attempts to commit certain offenses "within 3 years after being released from a state correctional facility operated by the Department of Corrections or a private vendor ... following incarceration for an offense for which the sentence is punishable by more than 1 year in this state").

The Florida Supreme Court has held that "release from a state correctional facility operated by the Department of Corrections or a private vendor," as set forth in section 775.082(9)(a)1., "does not include release from a county jail." State v. Lewars , 259 So.3d 793, 802 (Fla. 2018). "[C]ommission of a PRR-qualifying offense within three years of release from jail, rather than prison, does not satisfy the requirements of section 775.082(9)(a)1." Id. Although Lewars was issued after the proceedings below in this case, there was no question here as to whether Appellant was released from the Department of Corrections or from a county jail on his prior offense. Cf. Taylor v. State , 114 So.3d 355, 355-56 (Fla. 4th DCA 2013) (holding that the appellant's release from federal custody while housed at a county jail qualified as constructive release from a correctional facility for purposes of PRR sentencing under section 775.082(9)(a)1.), disapproved by Lewars , 259 So.3d at 796. Indeed, Appellant was sentenced to jail and released from jail, which clearly would not qualify under the PRR statute. See Cassista v. State , 57 So.3d 265, 267 (Fla. 5th DCA 2011) ("In most cases, it is a simple matter to determine when an individual is released from a state correctional facility."). Based upon such, Ground 1 was not refuted by the record.

Accordingly, we reverse the order on appeal as to Ground 1 and remand for either an evidentiary hearing or attachment of some other portion of the record that conclusively refutes Appellant's claim. We otherwise affirm.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions.

Lewis, Rowe, and Makar, JJ., concur.

      Toler v. State , 493 So.2d 489 (Fla. 1st DCA 1986).


text:
    Christopher PITTMAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3574
    District Court of Appeal of Florida, First District.
    April 22, 2019
    Michael Ufferman, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Christopher Pittman appeals his convictions for trafficking in cocaine (400 grams or more) and trafficking in methamphetamine (200 grams or more) arguing the trial court erred in denying his motions for mistrial. Each of his two motions sought a mistrial for improper testimony. We find no abuse of discretion in the denial of the respective motions as neither instance of allegedly improper testimony vitiated the entire trial. See England v. State , 940 So.2d 389 (Fla. 2006).

Accordingly, the convictions are AFFIRMED .

Wolf, Bilbrey, and Winsor, JJ., concur.


author: Winokur, J. Winsor, J., concurring. Makar, J., dissenting.

text:
    Mark Anthony TOLBERT, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3240
    District Court of Appeal of Florida, First District.
    April 22, 2019
    Andy Thomas, Public Defender, and Justin F. Karpf, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.
   Winokur, J.

Mark Anthony Tolbert appeals a restitution order. Tolbert argues that the trial court abused its discretion in ordering him to pay the victim the outstanding balance owed on a loan used to finance the purchase of the vehicle he destroyed. We find that the proper measurement of restitution here was the vehicle's fair market value at the time of the crime. As a result, we reverse.

I.

In April 2016, Tolbert was charged with aggravated fleeing and eluding of a law enforcement officer and driving under the influence causing property damage. Tolbert crashed a 2013 Toyota Yaris, owned by his ex-girlfriend Ms. Schoenfeld, into a ditch. The vehicle was totaled.

In May 2016, Tolbert entered a negotiated plea, which included a reservation of jurisdiction in order to determine the amount of restitution. During the restitution hearing, Schoenfeld testified that she purchased the vehicle three years before the incident for approximately $ 14,000. Schoenfeld claimed that the vehicle was purchased used, in fair condition, and with no structural damage. She also testified that she financed the vehicle's purchase through a bank loan. After the incident, Schoenfeld owed the bank $ 14,694.60 in order to pay off the loan. Schoenfeld's insurance company paid a portion of the payoff amount, with Schoenfeld owing the bank an outstanding balance of $ 11,892.76.

For his part, Tolbert presented the expert testimony of Hunter Livingston, the owner of a local car dealership. Livingston estimated the value of the vehicle at $ 5,850. Livingston also consulted the Kelley Blue Book, a consumer vehicle purchase guide, and estimated the retail value of a 2013 Toyota Yaris at approximately $ 8,000. Livingston opined that the fair market value of Schoenfeld's vehicle was approximately $ 6,100.

At the close of the hearing, the State argued that Tolbert owed Schoenfeld the balance owed on the bank loan. In contrast, defense counsel argued that Tolbert simply owed the fair market value of the vehicle. The trial court then entered a restitution order in the amount of Schoenfeld's outstanding loan balance, $ 11,892.76.

II.

Florida law provides for restitution to a victim for damage or loss caused directly or indirectly by the defendant's offense, and for damage or loss related to the defendant's criminal episode. § 775.089(1)(a), Fla. Stat. The State has the burden of proving the amount of restitution owed by a preponderance of the evidence. § 775.089(7), Fla. Stat. The amount of restitution ordered must be supported by competent, substantial evidence. D. J. R. v. State , 139 So.3d 458, 459 (Fla. 1st DCA 2014). Typically, fair market value is the appropriate measure of restitution.

State v. Hawthorne , 573 So.2d 330, 333 (Fla. 1991).

While intended to make the victim whole, "restitution is not intended to provide a victim with a windfall." Rodriguez v. State , 956 So.2d 1226, 1232 (Fla. 4th DCA 2007) (citing Glaubius v. State , 688 So.2d 913, 916 (Fla. 1997) ). Therefore, restitution may not exceed the damage caused by the defendant's criminal conduct. D. J. R. , 139 So.3d at 459.

III.

A restitution order is reviewed for abuse of discretion. Id. First, the State argues that the trial court did not abuse its discretion because there was competent, substantial evidence to support the trial court's restitution order. The State relies on its introduction of documentation verifying the remaining balance owed on the loan, Schoenfeld's testimony of the approximate purchase price of the vehicle, as well as the condition of the vehicle at the time it was destroyed by Tolbert.

Notwithstanding the credibility and competency of Schoenfeld's testimony and the State's evidence, the State is still required to show a causal relationship between the conduct and the restitution. Hawthorne , 573 So.2d at 333 ; L.A.D. v. State , 616 So.2d 106, 108 (Fla. 1st DCA 1993). The record shows that the State did not meet this burden.

Schoenfeld entered into a loan agreement to finance the purchase of the automobile. Schoenfeld's insurance provider made a partial payment to the bank, but a balance remained. The State, however, did not present evidence connecting the balance owed to Tolbert's criminal conduct. Schoenfeld's loan pre-dated the incident and reflected the money owed to the bank in exchange for the purchase of the vehicle. Even if Tolbert had not destroyed the vehicle, Schoenfeld would still be obligated to pay off the loan. Therefore, the State cannot prove that, "but for" Tolbert's conduct, Schoenfeld would not owe $ 11,892.76.

Second, the State asserts that fair market value is not the only standard for ascertaining restitution. It is true that "a court is not tied to fair market value as the sole standard for determining restitution amounts." Hawthorne , 573 So.2d at 333. Deviations from fair market value, however, have been recognized in limited circumstances, such as the "theft of a family heirloom, a new automobile, or an older car that had been repaired shortly before the theft." Davis v. State , 244 So.3d 374, 377 (Fla. 4th DCA 2018). The common thread of these exceptions is that the value of the stolen property itself consists of more than just its fair market value.

This case does not trigger these exceptions. The loan balance owed is the remaining amount of the purchase price covered by the bank in order to finance Schoenfeld's purchase of the vehicle. The State failed to show that the money owed on the bank loan made the vehicle worth more than just its fair market value. Thus, it was improper for the trial court to order restitution in excess of that value.

IV.

Restitution is designed to compensate a victim for a loss incurred as a result of a defendant's criminal conduct. The task of making of victim whole, however, is constrained by the legal requirements that a victim not receive a windfall and that a defendant not pay in excess of the damage he caused. While it may seem unfair that Schoenfeld owes money on a vehicle she no longer possesses, the balance is a product of Schoenfeld's financial decision. Tolbert's responsibility lies as far as his damage to the vehicle. In this case, that amount is reflected by the vehicle's fair market value. Accordingly, we reverse and remand for restitution proceedings consistent with this opinion.

REVERSED and REMANDED .

Winsor, J., concurs with opinion; Makar, J., dissents with opinion.

Winsor, J., concurring.

This case is about the value of the loss. Courts have discretion in how they award restitution, but all awards remain limited by statute, and "[u]nder the plain language of the statute, the loss or damage to be compensated must be 'directly or indirectly' related to the offense." Glaubius v. State , 688 So.2d 913, 915 (Fla. 1997) (referencing § 775.089(1)(a) ). Therefore, although the court announced in State v. Hawthorne that trial courts must consider compensation, rehabilitation, deterrence, and so forth, "[t]his does not mean [ ] that a trial court can arbitrarily award any amount of restitution it deems adequate." Glaubius , 688 So.2d at 915 (citing State v. Hawthorne , 573 So.2d 330 (Fla. 1991) ). Instead, the court must focus on the loss. The question in this case, then, is whether the unsecured portion of a car loan constitutes "damage or loss" the defendant caused. I conclude that it does not, and I join the court's opinion.

In State v. Williams , the Florida Supreme Court noted that section 775.089(1)(a)'s "directly or indirectly" limitation precluded restitution for damages that "would have occurred with or without" the offense. 520 So.2d 276, 277 (Fla. 1988) (" Section 775.089(1)(a) is not ambiguous."); accord Glaubius , 688 So.2d at 915 (explaining that "to order restitution under the statute, the court must find that the loss or damage is causally connected to the offense"). Here, to the extent a preexisting, outstanding loan balance is properly considered "damage or loss," it is damage or loss that "would have occurred with or without" Tolbert's crime.

Relying principally on dicta in a Hawthorne footnote about new-car depreciation, the dissent does include the loan balance as part of the "damage or loss." But the Hawthorne footnote attaches to the court's discussion about calculating depreciation, which of course goes to the car's value . 573 So.2d at 333 & n.5. Here, there is no real dispute about the car's value. Regardless, it is one thing to suggest that someone causes a $ 20,000 loss when they steal a car bought minutes earlier for $ 20,000. It is quite another to say someone who steals a $ 6,000 car causes not only the loss of the car, but is also responsible for any loan balance-so long as the loan was partially secured by the car. Cf. Lewis v. State , 238 P.3d 833, 2008 WL 6124789 (Nev. 2008) (reversing $ 5,200 restitution award that "included the $ 4,500 loan balance paid by the victim's insurance company and the $ 700 paid by the victim to reacquire the car" because there was insufficient evidence that the car was worth $ 5,200).

Hawthorne observed "that in most instances the victim's loss and the fair market value of the property at the time of the offense will be the same." 573 So.2d at 333 ; accord Mansingh v. State , 588 So.2d 636, 638 (Fla. 1st DCA 1991). This is one of those instances. There is nothing particularly unique about having a partially secured car loan. And if the victim lost a $ 6,000 car and got $ 6,000 in restitution, she could acquire another $ 6,000 car.

That would leave the victim just where she began: with a $ 6,000 car and a $ 12,000 loan. In other words, the restitution award would cover her "damage or loss." If, on the other hand, the victim got the value of her car plus the unsecured portion of her loan (roughly $ 12,000) and bought a $ 6,000 car, she would come out $ 6,000 ahead. This would result in a windfall, and as the majority opinion notes, restitution awards are not supposed to do that. Glaubius , 688 So.2d at 916 (noting that requiring a defendant to pay more than "damages his criminal conduct caused" "would raise significant due process concerns regard the validity of section 775.089"). I concur.

Makar, J., dissenting.

This restitution case involves an upside-down Yaris. During his high-speed attempt to elude police officers, an inebriated Mark Anthony Tolbert drove at times in excess of 100 mph, ran stoplights and stop signs, and nearly collided with roadside objects. It didn't end well: Tolbert crashed the pilfered 2013 Toyota Yaris in a ditch, rendering the vehicle a total loss. He was charged with and pled guilty to two charges: aggravated fleeing and eluding of a law enforcement officer and driving under the influence causing property damage.

Tolbert had taken the vehicle from the victim, an ex-girlfriend who-at about the time of the incident in early 2016-owed a balance of $ 14,694.60 on her auto loan with Santander Bank. The loan was upside-down because the amount due exceeded the street value of the Yaris. At the time of the restitution hearing, the balance due was reduced to $ 11,892.76, which reflected various adjustments for insurance proceeds that had been paid. The victim had agreed to the loan's high interest rate (14%), which she characterized as "high robbery," because she needed a car and had poor credit at the time (she had since paid on the loan for about two and one-half years). The State sought, as restitution, the current balance then due. Tolbert's expert testified that the Yaris, which was a standard model with no frills and assumed to be in "good" condition at the time of the crash, was worth about $ 6,100 wholesale and $ 8,000 retail.

The State argued that Tolbert's criminal escapade caused the victim to lose the entire value and the use of her vehicle, and that because the purpose of restitution is to make her whole, the trial judge should award the remaining balance due on the auto loan. Tolbert argued that the victim was only entitled to market value, which its expert said was much lower, in part, because the victim-not Tolbert-had "made a very bad deal" in accepting a high interest rate. The State countered that due to Tolbert's actions not only was the victim without a means of transportation but that she "is still having to pay for a vehicle she no longer has."

In deciding what to do, the trial judge noted that restitution "is an opportunity to make amends and to make the victim of a crime whole, at least to the extent it is possible to do so." As to this case, she ruled that "the criminal conduct of the defendant caused the victim to have her car totalled" and that "requiring the defendant to pay $ 11,892.76 is not in excess of the damage he caused."

On appeal, Tolbert says the victim was entitled only to a fair market valuation of the vehicle, which is the general, but not exclusive, measure for assessing a victim's losses. Florida's restitution jurisprudence is flexible and allows for departures from a strictly fair market value approach if the goals of criminal justice or the equities in a case are better served by fully compensating the victim via another methodology. As our supreme court said in Spivey v. State, the "purpose of restitution is not only to compensate the victim, but also to serve the rehabilitative, deterrent, and retributive goals of the criminal justice system." 531 So.2d 965, 967 (Fla. 1988). Relying on Spivey , the supreme court in State v. Hawthorne emphasized that although "in most instances the victim's loss and the fair market value of the property at the time of the offense will be the same" it could "foresee instances when the market value of the property would not adequately reflect the victim's loss or when the consideration of the percentage of depreciation would be inequitable." 573 So.2d 330, 333 (Fla. 1991) (footnotes omitted). Relying on Hawthorne , the supreme court emphasized that a "trial court has discretion to take into account any appropriate factor in arriving at a fair amount which will adequately compensate a victim for his or her loss and further the purposes of restitution." Glaubius v. State , 688 So.2d 913, 915 (Fla. 1997) (emphasis added). Far from dicta, our supreme court established that discretion exists for establishing a "fair amount" apart from fair market value, and has repeatedly said the "trial court is in the best position to determine how imposing restitution may best serve [the goals of rehabilitation, deterrence, and retribution] in each case." Id.

One of its examples from Hawthorne involved a new automobile that is stolen immediately after its purchase. 573 So.2d at 333 n.5. Because a new vehicle "depreciates considerably as soon as the purchaser drives it off the lot," restitution based on traditional fair market value would lead to an "inequitable result" and thereby "not serve the restitution statute's purpose of compensating the victim for the loss sustained as a result of the offense." Id. In these situations, a trial court "is not tied to fair market value as the sole standard for determining restitution amounts, but rather may exercise such discretion as required to further the purposes of restitution ." Id. at 333 (emphasis added). In other words, a trial court is within its discretion in assessing restitution by considering the overall impact of an offender's criminal episode versus a strictly market-based approach. See § 775.089 (1)(a), Fla. Stat. (2019) (trial court "shall order the defendant to make restitution to the victim for: 1. Damage or loss caused directly or indirectly by the defendant's offense; and 2. Damage or loss related to the defendant's criminal episode , unless it finds clear and compelling reasons not to order such restitution.") (emphasis added). Both Spivey and Hawthorne emphasized that the "trial court is best able to determine how imposing restitution may best serve those goals in each case ." Hawthorne , 573 So.2d at 333 (quoting Spivey ) (emphasis added).

The takeaway is that trial courts have discretion to depart from fair market valuations where the circumstances warrant doing so, tempered by judicially-imposed limitations. In this regard, this Court long ago held that "absent circumstances tending to show that [fair market value] does not adequately compensate the victim or otherwise serve the purpose of restitution, such as theft of a family heirloom or a new automobile, ... or theft of an older car that had been repaired shortly before the theft, as was the case in Hawthorne , the amount of restitution should be established through evidence of [fair market value] at the time of the theft." Mansingh v. State , 588 So.2d 636, 638 (Fla. 1st DCA 1991) (citation omitted). Similarly, in Dickens v. State , which involved a stolen Chevrolet that was driven into and found at the bottom of a bay, the Second District upheld a restitution award of $ 1,900 reflecting the purchase price of the vehicle, the cost of repairs and improvements during ownership, and the cost of removing the car from the bay. 556 So.2d 782, 783 (Fla. 2d DCA 1990). In doing so, the Second District distinguished and rejected application of the "rigidities of proof" used in determining market value as an element of a crime when restitution awards are determined. Id. at 784. A more flexible standard is appropriate because "[l]imiting the trial court's discretion to a determination of the fair market value of the property involved at the time of the crime does not further its ability to serve the goals of the restitution program." Id. Notably, the supreme court in Hawthorne "approve[d] the reasoning of the district court in Dickens," rejecting this Court's more restrictive approach at that time. Hawthorne , 573 So.2d at 333.

Here, the victim lost the entire value and use of her car and she still owed a substantial amount on the car loan; presumably she has borne the expense of the loan plus the personal and financial burden of alternative transportation (unlike the victim in Hawthorne , the victim here did not seek the latter expenses). 573 So.2d at 331. Tolbert says the loan's terms are the victim's fault and that he shouldn't bear any responsibility for her bad business decision ; it would be inequitable for him to shoulder her loss. But didn't our supreme court in Hawthorne say it would be inequitable to not provide restitution for the rapid depreciation of a newly-purchased car? Why would buying a new car, that everyone knows depreciates instantly, be any less of a bad business decision than buying a used one at a higher interest rate? Why make offenders pay an amount exceeding fair market value in a new car case but not in a used/underwater car case? And shouldn't the amount of full restitution be considered in some cases from the victim's financial perspective or predicament? Suppose Tolbert wanted to use the victim's car, said that he would probably crash and total it in a Demolition Derby show that night, and asked what amount he could pay her so that she would be made whole? She'd probably tell him to pay off her loan, provide her with an equivalent car immediately, or the like. Why is fair market value the only legitimate barometer of restitution in such a case? Why not a measure more closely approximating the value from the victim's perspective? Granted, restitution is not designed to provide a windfall to victims, but there is no evidence that the victim here entered the car loan with the expectation that if the Yaris was stolen and destroyed that she'd somehow benefit financially; far from it. Presumably she'd pay off the outstanding car loan and start anew, though she is not required to do so; theoretically, an exact replica of her Yaris might be available at the lowest estimate of fair market value, but how would purchasing it, months or years later when-if ever-Tolbert actually pays restitution, account for the loss of use and continued payment on the loan in the interim? On the flip side, suppose that Tolbert knew he'd only be responsible in restitution for $ 6,100 for his criminal escapade but that it would cause far more economic injury to the victim/former girlfriend. Why should he not be accountable for the greater loss?

All this said, the trial judge was on the right track to make the victim whole, and her decision to use the $ 11,892.76 loan amount as the basis for doing so does not jump out as an abuse of discretion on this record, i.e., not arbitrary, fanciful, or unreasonable. Spivey , 531 So.2d at 967. If some adjustment is not allowed for victims with upside-down car loans, then full restitution becomes somewhat illusory and would be regressive in its impact on those struggling economically. The trial judge did not err in following what the electorate has now constitutionalized as the right of victims "to full and timely restitution in every case and from each convicted offender for all losses suffered, both directly and indirectly, by the victim as a result of the criminal conduct." Art. I, § 16(B)(9), Fla. Const. (2019) (emphasis added).

      This is all theoretical because, as the dissent notes, victims often do not receive the restitution courts order. And even if a restitution award is promptly paid, it cannot always cure the serious, noneconomic burdens the victim has suffered (and will suffer). Here, even if the victim received a perfectly comparable car immediately, she still would have suffered great harm in going through this whole ordeal. But the legal issue in this case is the value of the loss the appellant caused, which the Florida Supreme Court has held is ordinarily "the fair market value of the property at the time of the offense." Hawthorne , 573 So.2d at 333.

      Incidentally, if we were to go down the road of allowing windfalls in this way, we should consider some limiting principle. What if a victim owed $ 50,000 on an $ 8,000 car? Retail car loans often fold in earlier car loans, meaning borrowers frequently owe far more than their cars' values. See Federal Trade Commission, Consumer Information, Auto Trade-ins and Negative Equity , available at https://www.consumer.ftc.gov/articles/0257-auto-trade-ins-and-negative-equity (explaining negative-equity car loans). What if a victim had an unsecured loan-say, from a family member-but used the funds to buy the car? What if a victim folded her car loan and other consumer debt into a home equity loan?


author: PER CURIAM.

text:
    Angel Luis RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D19-1
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 23, 2019
    Angel Luis Rodriguez, Clermont, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Hannah v. State, 869 So.2d 692, 693 (Fla. 5th DCA 2004) (citing Butler v. State, 838 So.2d 554 (Fla. 2003) ).

EVANDER, C.J., EISNAUGLE, and HARRIS, JJ., concur.


text:
    Michael John HERREN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2026
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 23, 2019
    James S. Purdy, Public Defender, and Sean Kevin Gravel, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Affirmed. See Exantus-Barr v. State, 193 So.3d 936 (Fla. 4th DCA 2016).

ORFINGER, HARRIS, and GROSSHANS, JJ., concur.


author: SILBERMAN, Judge.

text:
    Maria Consuelo HIRALDO, DOC #H52613, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1678
    District Court of Appeal of Florida, Second District.
    Opinion filed April 24, 2019
    Howard L. Dimmig, II, Public Defender, and Daniel Muller, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, Bilal Ahmed Faruqui, Assistant Attorney General, Tampa, and Allison C. Heim, Assistant Attorney General, Tampa (substituted as counsel of record) for Appellee.
   SILBERMAN, Judge.

Maria Consuelo Hiraldo seeks review of the sentences the trial court imposed after she entered an open plea to burglary of a dwelling and grand theft. Hiraldo argues that the court erred in determining that she failed to establish a legal basis to impose a downward departure sentence based on her need for specialized treatment for a mental disorder. We agree and reverse.

Section 921.0026(2)(d), Florida Statutes (2016), provides for a departure from the lowest permissible sentence under the Criminal Punishment Code when "[t]he defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment." Hiraldo claimed that she suffers from and requires specialized treatment for bipolar disorder. The trial court indicated an inclination to impose a downward departure sentence, but it ultimately concluded that Hiraldo did not meet the legal criteria in section 921.0026(2)(d) and imposed the lowest permissible sentence. The court accepted the State's argument that Hiraldo's bipolar disorder had a substance abuse component and was therefore not "a mental disorder that is unrelated to substance abuse or addiction."See id.

We review this ruling for competent, substantial evidence. See Camacho v. State, 164 So.3d 45, 48 (Fla. 2d DCA 2015). Hiraldo presented testimony from her licensed mental health counselor that she had previously been diagnosed as bipolar and was treated for that disorder in addition to a substance abuse disorder. The counselor said that Hiraldo had been prescribed medications for her bipolar disorder and that he monitored the medications and worked to provide her coping skills for that disorder. The counselor did not testify that Hiraldo had been prescribed any medications for her substance abuse disorder.

The counselor believed Hiraldo had made substantial improvements with her bipolar disorder in that she had been regulating her emotions much better. He also said she made substantial improvements with her substance abuse disorder in that she had been clean for a year. The counselor believed that sending Hiraldo to jail or prison would make it more difficult to monitor her bipolar medication and to treat both her bipolar disorder and drug addiction. He thought the treatment he was providing was best for her.

We conclude that the trial court misconstrued the evidence when it accepted the State's argument that Hiraldo's bipolar disorder had a substance abuse component. Hiraldo's counselor made it clear that Hiraldo was being treated for two disorders: bipolar disorder and substance abuse disorder. And Hiraldo's treatment for the two disorders was different in that she was taking medication only for the bipolar disorder. The goals of the treatments were also different: Hiraldo's improvements for her bipolar disorder were measured by her ability to regulate her emotions, and her improvements for her substance abuse disorder were measured by her ability to stay clean.

Thus, the trial court's ruling was not supported by competent, substantial evidence. See Daniels v. State, 884 So.2d 220, 222 (Fla. 2d DCA 2004) (holding that the trial court erred in finding it did not have a legal basis to depart based on the need for specialized treatment when the evidence established that the defendant's mental disorder required treatment separate from his substance abuse treatment). Accordingly, we reverse Hiraldo's sentences and remand for the trial court to reconsider Hiraldo's request for a downward departure. On remand, the parties should be permitted to present additional evidence to establish Hiraldo's current status. See id.

Reversed and remanded.

KELLY and VILLANTI, JJ., Concur.

      See §§ 921.002-.244.

      We express no opinion as to whether Hiraldo's mental condition merits a downward departure.


author: CASANUEVA, Judge.

text:
    Shasta MOTT, O/B/O D.G., Appellant, v. SCHOOL DISTRICT OF DESOTO COUNTY, Appellee.
    Case No. 2D17-5030
    District Court of Appeal of Florida, Second District.
    Opinion filed April 24, 2019.
    Shasta Mott, O/B/O D.G., pro se.
    Jeffrey D. Jensen and Andrew J. Salzman of Unice Salzman Jensen, P.A., Trinity, for Appellee.
   CASANUEVA, Judge.

Shasta Mott, on behalf of her daughter D.G., appeals a final order of the School Board of the School District of DeSoto County expelling D.G. from DeSoto Middle School. She was expelled, pursuant to the School Board's zero tolerance policy, for being under the influence of drugs on school property after allegedly consuming a pot brownie on her way to school. Because the Board failed to establish a violation of the zero tolerance policy, we reverse the order of expulsion.

The Supreme Court has "held that a student facing suspension from a public school has property and liberty interests that qualify for protection under the due process clause of the Fourteenth Amendment." Student Alpha Id No. Guja v. Sch. Bd. of Volusia Cty., 616 So.2d 1011, 1012 (Fla. 5th DCA 1993) (citing Goss v. Lopez, 419 U.S. 565, 574, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975) ). "[D]ue process in student disciplinary proceedings requires adequate notice, an opportunity to be heard, and substantial evidence to support the penalty." Id.; see also C.J. v. Sch. Bd. of Broward Cty., 438 So.2d 87, 87 (Fla. 4th DCA 1983) ("[W]e are very sensitive to the principle that entitlement to an education has been recognized as a property interest protected by the due process clause of the fourteenth amendment ....").

Following an executive session of the Board at which D.G.'s case was heard, the Board issued its final order of expulsion based on D.G. "being under the influence of drugs." Ms. Mott argued that expulsion was not appropriate, particularly given the absence of any prior drug violations, but the Board stated that expulsion for the remainder of the school year was the least punishment they could impose under its zero tolerance policy.

The zero tolerance policy set out in the code of conduct does not support the Board's position. It identifies the following drug-related violations as zero-tolerance offenses: "Sale, distribution, possession, receipt, or delivery of illegal drugs." The Board neither alleged nor presented any evidence that D.G. committed an act of "[s]ale, distribution, possession, receipt, or delivery of illegal drugs" on campus. The Board alleged that D.G. was under the influence of drugs on campus, and this is not an enumerated offense in the zero tolerance policy. Cf. Crawley v. Sch. Bd. of Pinellas Cty., 721 So.2d 396, 397 (Fla. 2d DCA 1998) (noting that part of the school board's zero tolerance policy prohibited a student from being on school property while under the influence of an illegal drug). We will not read into the rule conduct that is not expressly prohibited. See C.J., 438 So.2d at 88 ("[T]he School Board cannot have it both ways. If it is going to urge the validity of a mandatory rule of such gravity, then it had better use in its rule making all of the punctiliousness that Seurat did in his painting."). Accordingly, we find that the Board failed to present substantial, competent evidence to support the penalty of expulsion imposed under the zero tolerance policy.

Because the Board failed to present evidence to support an expulsion for being under the influence, we reverse and remand with instructions that the order of expulsion be expunged from D.G.'s school records.

Reversed and remanded with instructions.

KELLY and ATKINSON, JJ., Concur.

      Ms. Mott was given three different bases for the expulsion recommendation in three different correspondences: one stated "Drug sale and/or distribution"; another stated "being under the influence of marijuana at school"; and a third identified "drug possession/use." The final order of expulsion states that the expulsion was for "being under the influence of drugs." We question whether Ms. Mott was fairly apprised of the offense for which her daughter was facing expulsion. See Student Alpha Id No. Guja, 616 So.2d at 1012 (noting that due process in student disciplinary proceedings requires adequate notice). Because we find that the expulsion order is not supported by the evidence, we do not address the issue of notice.

      It is clear from the record that the expulsion in this case was based on zero tolerance and not on some other provision that may have given the Board discretion to expel a student for being under the influence of drugs, for example if the student has prior drug violations or after the Board has considered alternative consequences. Nor did the Board present evidence to support expulsion under an alternative provision.