ROSA ELENA MARTINEZ v. STATE OF FLORIDA

R
       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                        ROSA ELENA MARTINEZ,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D19-2538

                             [April 28, 2021]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Glenn D. Kelley, Judge; L.T. Case No. 17-CF-009942-
AXXX-MB.

  Carey Haughwout, Public Defender, and Erika Follmer, Assistant
Public Defender, West Palm Beach, for appellant.

  Ashley Moody, Attorney General, Tallahassee, and Jeanine
Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

FORST, J.

    Appellant Rosa Elena Martinez appeals from her conviction and
sentence for one count of third-degree grand theft of property with a value
of $10,000 or more but less than $20,000, raising several issues on appeal.
Finding no error, we affirm all issues and write only to address Appellant’s
argument that the trial court erred in its calculation of restitution due.

                               Background

   The State charged Appellant with one count of grand theft over
$20,000, alleging that she, as the victims’ real estate agent, knowingly
obtained $20,000 or more from them under the guise of helping them buy
a home. At trial, the State introduced evidence that Appellant had
fraudulently taken the following from the victims: $30,000, to invest in
Appellant’s own company, falsely promising the victims that they would
make 8% interest and that their investment was safe; twenty-eight periodic
payments, totaling $15,158, to purportedly be paid towards a $28,000
loan; and $5,000, purportedly to be spent on closing costs on the home.
The State argued that, in total, the victims had lost more than $50,000.

   The verdict form allowed the jury to determine the monetary value for
the grand theft counts and provided six value ranges. The jury found
Appellant guilty of the lesser-included offense of grand theft in the third
degree, “defined as theft of property of more than $10,000 but less than
$20,000.”

   At sentencing, the parties addressed restitution. The State requested
restitution in an amount of more than $54,000, while defense counsel
requested pay-back restitution of not more than $20,000 – the maximum
dollar value defining the third-degree grand theft conviction. After a
subsequent restitution hearing, the trial court ordered Appellant to pay
the victims $50,158.45 in restitution, to reflect the total amount of money
they had lost in the $30,000 investment in Appellant’s company, twenty-
eight periodic payments totaling $15,158, and $5,000 paid towards closing
costs. From this restitution order, Appellant now appeals.

                                Analysis

   Appellant argues that this court must reverse the restitution order
because the trial court could not order restitution in an amount greater
than the maximum dollar value defining the offense of third-degree grand
theft. She asserts that because the jury convicted her of the lesser-
included offense of third-degree grand theft, defined as theft of property
valued at $10,000 or more, but less than $20,000, the jury had essentially
acquitted her of grand theft of more than $20,000 so that ordering
restitution above that amount was error.

   This court reviews restitution orders for an abuse of discretion. State
v. Tomasheski, 

168 So. 3d 248

, 249 (Fla. 4th DCA 2015) (citing Koile v.
State, 

934 So. 2d 1226

, 1229 (Fla. 2006)).

   Criminal restitution is a judicial remedy under which a person who has
suffered loss, monetary expense or injury as a direct or indirect result of
the defendant’s offense or criminal episode is restored to the victim’s
original position or placed in the position in which the victim would have
been, had the crime not been committed. See § 775.089, Fla. Stat. (2015).
This is accomplished by requiring the defendant to repay money, goods, or
services to the victim of his offense and is a mandatory sanction under
section 775.089(1)(a). That statute provides, in relevant part:

      (1)(a) In addition to any punishment, the court shall order
      the defendant to make restitution to the victim for:

                                    2
         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.

      ...

      (6)(a) The court, in determining whether to order restitution
      and the amount of such restitution, shall consider the
      amount of the loss sustained by any victim as a result of
      the offense.

      ...

      (7) Any dispute as to the proper amount or type of
      restitution shall be resolved by the court by the
      preponderance of the evidence.                 The burden of
      demonstrating the amount of the loss sustained by a victim
      as a result of the offense is on the state attorney. The burden
      of demonstrating the present financial resources and the
      absence of potential future financial resources of the
      defendant and the financial needs of the defendant and his or
      her dependents is on the defendant.              The burden of
      demonstrating such other matters as the court deems
      appropriate is upon the party designated by the court as
      justice requires. . . .

§ 775.089, Fla. Stat. (2015) (emphasis added).

    Thus, relevant to this appeal, the statute tells us three things. First,
section (1)(a) creates the “significant relationship test” so that restitution
is proper where the amount bears a significant relationship to the damage
or loss caused by the defendant’s actions. State v. Tomasheski, 

168 So.
3d

at 249 (citing and quoting J.O.S. v. State, 

689 So. 2d 1061

, 1064 (Fla.
1997)); see § 775.089(1)(a), Fla. Stat. (2015). Second, the trial court, not
the jury, is charged with determining the amount or type of restitution.
See §§ 775.089(1)(a), (6)(a), and (7), Fla. Stat. (2015). Third, unlike a
conviction of guilty, which is determined beyond a reasonable doubt, an

                                      3
order of restitution must only be supported by the preponderance of the
evidence—a significantly lower burden of proof. See

id. at

§ 775.089(7),
Fla. Stat. (2015).

    In determining whether the trial court was permitted to award an
amount of restitution beyond the maximum dollar value defining
Appellant’s third-degree grand theft conviction, our supreme court’s
decision in J.O.S. v. State, 

689 So. 2d 1061

(Fla. 1997), is controlling. In
that case, the defendant was charged with first-degree misdemeanor
criminal mischief for breaking a window, but he was convicted of the lesser
offense of second-degree misdemeanor criminal mischief.

Id. at 1062.

At
a subsequent restitution hearing, the victim testified that he paid $1,092
to repair the damage.

Id. at 1063

n.4. Over defense objection, the trial
court ordered restitution of $1,092, an amount exceeding the $200
maximum value of the second-degree criminal mischief adjudication.

Id.
at 1062–63.

    On appeal, the supreme court rephrased the issue as “[w]hether, in the
absence of any plea agreement, restitution may be ordered in an amount
greater than the maximum dollar value defining the offense for which a
defendant is adjudicated guilty.”

Id. at 1062.

Answering the question in
the affirmative, the supreme court held that “restitution may be ordered
in an amount greater than the maximum dollar value defining the offense
for which a defendant is adjudicated guilty.”

Id. at 1065.

It acknowledged
the First District’s reasoning “that a contrary finding would in effect
require restitution amounts to be proven beyond a reasonable doubt at the
criminal proceedings in cases where the defendant’s alleged offense is
defined by reference to a dollar amount.”

Id. at 1064.

“[S]uch a position
would conflict with section 775.089(7), Florida Statutes (1994), which
states that the burden of proof in establishing the amount of restitution is
by a preponderance of the evidence.”

Id.

In the instant

case, Appellant acknowledges our supreme court’s
holding in J.O.S., but asserts that it seemingly conflicts with this court’s
decision in Acosta v. State, 

856 So. 2d 1143

(Fla. 4th DCA 2003). In that
case, the trial court ordered the defendant to pay $14,581 in restitution
after the jury found the defendant guilty of a lesser-included offense of
petit theft of property with a value of less than $300.

Id. at 1145.

On
appeal, this court reversed the award of restitution.

Id. In doing so,

we
reasoned that even though the trial court ordered restitution based on the
testimony of the victim regarding the value of the property taken, because
“the jury did not find [the defendant] guilty of a crime where property of
such value was taken[,]” the trial court erred in ordering restitution with
an amount exceeding “the value of the property of the crime [the defendant]

                                     4
was convicted of.”

Id.

However, in State

v. Tomasheski, 

168 So. 3d

249 (Fla. 4th DCA 2015),
we acknowledged that our holding in Acosta relied on a case that predated
the supreme court’s decision in J.O.S., making it unclear whether Acosta
was still good law in the wake of J.O.S.

Id. at 250.

We also explained that
we did not yet need to decide whether to recede from Acosta because
Acosta’s holding did not apply to the issue in Tomasheski.

Id. Specifically,
Tomasheski stated:

      We are aware that our decision in Acosta v. State, 

856 So. 2d
1143

(Fla. 4th DCA 2003) appears to conflict with J.O.S. In
      Acosta, we held that restitution is limited by the monetary
      value ceiling associated with the crime of which the
      defendant is convicted. 

Acosta, 856 So. 2d at 1145

. We relied
      upon a Second District Court of Appeal decision, Cooley v.
      State, 

686 So. 2d 732

(Fla. 2d DCA 1997), that predated our
      supreme court’s decision in J.O.S. Nevertheless, because
      this case involves a value range, and not a monetary
      value limit, we need not recede from Acosta to resolve the
      issue.

Id. (emphasis added).

Similarly,

in the instant case, while we recognize that Acosta seemingly
conflicts with J.O.S., we do not need to decide whether our supreme court’s
decision in J.O.S invalidates Acosta’s holding in order to resolve the
restitution issue at hand. Just as in Tomasheski, the relevant statute—
here, the grand theft statute—is defined by a value range, rather than a
statutory monetary value limit. See

id. Thus, Acosta is

inapplicable in
resolving this issue, and J.O.S. is controlling.

   Because J.O.S. instructs that restitution may be ordered above the
maximum dollar value defining a defendant’s offense, neither this court
nor the trial court was restricted by the maximum dollar value defining
third-degree grand theft in rewarding restitution. Rather, the relevant
determination was whether the amount of restitution bore a significant
relationship to the victims’ damages and losses caused by Appellant’s
course of conduct. See § 775.089(1)(a), Fla. Stat. (2015). Because the
amount of restitution awarded constituted the total amount of money
which the State proved the couple lost in the three thefts, the significant
relationship test is met, and the award of restitution was proper.

                               Conclusion

                                     5
   Consistent with our supreme court’s decision in J.O.S., we reiterate
that restitution may be ordered in an amount greater than the maximum
dollar value defining the offense for which a defendant is adjudicated
guilty. We likewise apply the “significant relationship” test, which requires
a court to order a defendant to make restitution for damage or loss “caused
directly or indirectly by the defendant’s offense” and “related to the
defendant's criminal episode” (unless the court “finds clear and compelling
reasons not to order such restitution”). We find that the $50,158.45
restitution award bears a significant relationship to the loss which the
victims sustained attributable to Appellant’s three thefts and, finding no
error, we affirm the trial court’s restitution order, as well as the other
aspects of the final judgment and sentence.

   Affirmed.

DAMOORGIAN, J., concurs.
WARNER, J., concurs specially with opinion.

WARNER, J., concurring specially.

   I concur in the majority opinion. However, I would simply recede from
Acosta v. State, 

856 So. 2d 1143

(Fla. 4th DCA 2003), as it is apparent
that it conflicts with J.O.S. v. State, 

689 So. 2d 1061

(Fla. 1997).

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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