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Kirby v. State10/9/2003
t and held that " he settlement between the victim and the defendant in a civil proceeding did not bar the state from seeking restitution." Id. at 691.
ANALYSIS
The issue presented in this case is whether the victim and defendant may foreclose the trial court's obligation to impose restitution by entering into a settlement agreement that contains a release of liability in a civil action prior to the disposition of the criminal case involving the same incident. As this issue presents a pure question of law, we review it de novo. See Barnhill v. State, 834 So. 2d 838, 843 (Fla. 2002), cert. denied, 123 S. Ct. 2281 (2003); State v. Glatzmayer, 789 So. 2d 297, 301-02 n.2 (Fla. 2001).
We begin with the language of Florida's restitution statute, which is the source of the trial court's authority to order restitution. Section 775.089, Florida Statutes (2002), states in relevant part:
(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. . . . The court shall make the payment of restitution a condition of probation . . . .
(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 non-medical care and treatment rendered in accordance with a recognized method of healing.
2. Pay the cost of necessary physical and occupational therapy and rehabilitation.
3. Reimburse the victim for income lost by the victim as a result of the offense.
(8) . . . An order of restitution hereunder will not bar any subsequent civil remedy or recovery, but the amount of such restitution shall be set off against any subsequent independent civil recovery.
(Emphasis supplied.)
Section 775.089(1)(a) requires the trial court to order a defendant to make restitution for damage or loss caused by the defendant's offense or related to the defendant's criminal episode unless the trial court finds clear and compelling reasons not to order restitution. See § 775.089(1)(a). When probation is imposed, the statute also requires the court to order restitution as a condition of probation. See § 775.089(1)(a)(2).
In light of the statutory requirement that restitution be imposed, the legal question becomes whether a settlement and release of liability by the victim of "any and all claims" against the defendant executed prior to the disposition of the criminal case constitutes a clear and compelling reason not to order restitution as a matter of law. We conclude that it does not, because of both the unique purposes of restitution and the clear legislative intent as expressed in the restitution statute.
The criminal sanction of restitution and the civil remedy of damages further distinct societal goals. We have recognized that unlike civil damages, restitution is a criminal sanction. See Spivey v. State, 531 So. 2d 965, 967 (Fla. 1988). In contrast, a civil claim for damages is a method for the orderly resolution of a dispute between the defendant and the victim. Unli
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