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Kirby v. State10/9/2003
We have for review State v. Kirby, 818 So. 2d 689 (Fla. 5th DCA 2002), which expressly and directly conflicts with State v. Vandonick, 800 So. 2d 239 (Fla. 2d DCA 2001), on the issue of whether a settlement and release of liability between a victim and a defendant on a civil claim for damages prior to the disposition of a criminal case based on the same incident prohibits the trial court as a matter of law from ordering restitution. Because civil settlements and criminal restitution are distinct remedies with differing considerations, we hold that a settlement and release of liability on a civil claim for damages between private parties does not prohibit the trial court from fulfilling its mandatory obligation to order restitution in the criminal case. For the reasons that follow, we approve the Fifth District's decision in Kirby, and disapprove the Second District's decision in Vandonick to the extent that it is inconsistent with this opinion.
FACTS
On November 20, 1999, police officer Gary Kent Kirby caused a traffic accident, generating both a civil claim for damages by the injured victim and a criminal prosecution against Kirby for driving under the influence resulting in serious bodily injury to another. On April 7, 2000, independent of the criminal case, the victim and Kirby executed a settlement agreement. This written settlement agreement released Kirby of any liability that may have resulted from the November 20, 1999, incident. The consideration for the settlement was the payment by Kirby's insurance company of $25,000-the insurance policy limits.
Kirby proceeded to trial in the criminal prosecution on February 23, 2001, and the jury found Kirby guilty of DUI with serious bodily injury as charged. The trial court adjudicated Kirby guilty and sentenced him to five years' probation, a downward departure from the permissible guidelines sentence of fifty-one months' incarceration. As justification for the downward departure, the trial court concluded that "the need for payment of restitution to the victim outweigh the need for a prison sentence" and that "the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse." The trial court ordered restitution, reserving jurisdiction to determine the amount.
The trial court subsequently held a restitution hearing. The State requested that the trial court award the victim restitution for the out-of-pocket medical expenses, deductibles, and lost wages that exceeded the $25,000 he received pursuant to the settlement agreement. Kirby opposed restitution based on the fact that the settlement agreement contained a release of liability. The State conceded that the settlement agreement contained a release of all liability, but argued that because the State was not a party to the agreement the victim could not prevent the State from exercising its statutory right to seek restitution. The trial court disagreed and denied restitution based on the release and the decision in Vandonick that the right to restitution is foreclosed by a settlement and release in a civil case. See Kirby, 818 So. 2d at 690.
On appeal, the Fifth District disagreed with the Second District's decision in Vandonick and agreed with the view expressed in Judge Northcutt's dissenting opinion in that case that, because restitution serves significant societal purposes other than compensating the victim, a sentencing court should not be bound by a civil settlement and release when the State was not a party to the transaction. See Kirby, 818 So. 2d at 690 (citing to Vandonick, 800 So. 2d at 240-41 (Northcutt, J., dissenting)). Accordingly, the Fifth District reversed the trial cour
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