Koile v. State

902 So. 2d 822, 2005 WL 171454
CourtDistrict Court of Appeal of Florida
DecidedJanuary 7, 2005
Docket5D04-91
StatusPublished
Cited by23 cases

This text of 902 So. 2d 822 (Koile v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Koile v. State, 902 So. 2d 822, 2005 WL 171454 (Fla. Ct. App. 2005).

Opinion

902 So.2d 822 (2005)

Timothy Thomas KOILE, Appellant,
v.
STATE of Florida, Appellee.

No. 5D04-91.

District Court of Appeal of Florida, Fifth District.

January 7, 2005.

*823 James S. Purdy, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.

MONACO, J.

After the commencement of his trial for first degree murder, Timothy Koile, the appellant, pled no contest to second degree murder pursuant to a plea bargain in which he agreed to a specific incarcerative sentence, followed by probation, and in which he agreed further to pay restitution in an unstipulated amount. The trial court thereafter presided over a hearing on the amount of restitution to be assessed, and later entered an order requiring Mr. Koile to pay restitution totalling more than $2,000,000. The only issues raised by Mr. Koile on appeal concern the assessment of restitution. We affirm in part, and reverse in part.

I. Facts.

At the restitution hearing the victim's father, Patrick Cousins, testified that he had incurred a number of expenses, many of which are not contested, that resulted from his son's murder. Among the uncontested expenses, for example, were funeral and burial costs. He also testified, however, that he elected to attend the three-week trial of Mr. Koile, and that as a result, he lost income of about $12,000. He admitted that he only testified at the trial on a single day. The victim's mother, Roseanne Cousins, indicated that she lost $1,500 in wages during the three-week trial period, and likewise related that she only testified on a single day of the trial. She testified, as well, that a wrongful death suit had been brought, and was still pending against Mr. Koile and his co-defendant, who was the wife of the murder victim.

In addition, the State also presented evidence on behalf of the victim's estate concerning the loss of future income of the victim. It appears that the victim had been a first officer with Air Jamaica, and *824 was compensated with a salary of $87,988 per year. He was expected to be promoted to captain in the future, at which time he would earn $156,882 per year. There was also testimony presented concerning the airline's mandatory retirement plan and pension contributions. To prove up the lost future earnings of the victim, the State called a certified public accountant, who testified that the victim's future income was $3,322,743, assuming his promotion to captain, and assuming that he worked until age 60.

The trial judge took the matter under advisement, and later rendered a written order assessing restitution against Mr. Koile and his co-defendant, jointly and severally. The court awarded the victim's father all of his lost wages for the three week period of the trial, as well as certain other expenses associated with the trial, and awarded the victim's mother all of the $1,500 lost wages that she sought. In addition, the trial judge calculated that the estate of the victim suffered damages or losses in the amount of $2,042,126, which represented the present value of lost future earnings, without engaging in the assumption that the victim would be promoted to captain. The trial judge evidently used the formula testified to by the certified public accountant in order to make this calculation, but made no deductions for living expenses or such things as income taxes that the decedent would have incurred. Mr. Koile timely appealed the restitution order. We address in this appeal the issues of whether it was appropriate to assess as restitution the lost wages of the decedent's parents while attending trial, and the lost future earnings of the decedent.

II. Standard of review and burden of proof.

We review restitution orders using an abuse of discretion standard. See Ashton v. State, 790 So.2d 1115, 1117 (Fla. 5th DCA 2001). The burden of proving the amount of restitution is on the State, and the amount must be proved by a preponderance of the evidence. See § 775.089(7), Fla. Stat. (2001); Santana v. State, 795 So.2d 1112 (Fla. 5th DCA 2001). Restitution must be proved by substantial competent evidence. See Sparkman v. State, 445 So.2d 1115 (Fla. 2d DCA 1984).

III. Restitution generally.

The State asserts that based on its reading of the restitution statute, the awards were lawful. Section 775.089, Florida Statutes (2003), the statute governing restitution as a condition of probation, states in pertinent part that:

(1)(a) In addition to any punishment, the 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. Restitution may be monetary or nonmonetary restitution. The court shall make the payment of restitution a condition of probation in accordance with s. 948.03...
(b) ...
2. An order of restitution entered as part of a plea agreement is as definitive and binding as any other order of restitution, and a statement to such effect must be made part of the plea agreement...
(c) 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 *825 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. (2)(a) When an offense has resulted in bodily injury to a victim, a restitution order entered under subsection (1) shall require that the defendant:
1. Pay the cost of necessary medical and related professional services and devices relating to physical, psychiatric, and psychological care, including nonmedical care.
...
3. Reimburse the victim for income lost by the victim as a result of the offense.
4. In the case of an offense which resulted in bodily injury that also resulted in the death of a victim, pay an amount equal to the cost of necessary funeral and related services.

(Emphasis added).

For restitution to be deemed reasonable, it must bear a significant relationship to the offense of which the defendant is convicted. See L.H. v. State, 803 So.2d 862, 863 (Fla. 4th DCA 2002). One factor to be considered in this regard is whether there is a causal connection between the criminal conduct and the loss claimed by the victim. Id. Before ordering restitution, therefore, the trial court must find that the loss or damage is causally connected to the offense, either directly or indirectly, and bears a significant relationship to the offense. See Bernard v. State, 859 So.2d 560, 562 (Fla. 5th DCA 2003). The causation and significant relationship tests work in conjunction with, and not independently of, each other. Id. In this connection this Court has previously held that lost wages may provide a sufficient basis for a restitution award. See Graham v. State, 720 So.2d 294, 294 (Fla. 5th DCA 1998); see also Hollingsworth v. State, 835 So.2d 373 (Fla. 1st DCA 2003).

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Bluebook (online)
902 So. 2d 822, 2005 WL 171454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/koile-v-state-fladistctapp-2005.