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Kirby v. State10/9/2003
ke a civil claim for damages, the purpose of restitution is twofold: (1) to compensate the victim and (2) to serve the rehabilitative, deterrent, and retributive goals of the criminal justice system. See Glaubius v. State, 688 So. 2d 913, 915 (Fla. 1997); Spivey, 531 So. 2d at 967.
Consistent with this twofold purpose of restitution, we have recognized that " hile the victim's wishes concerning restitution are relevant, they are not dispositive-it is the judge, not the victim, who must weigh society's competing needs." Banks v. State, 732 So. 2d 1065, 1069 (Fla. 1999). To this end, we agree with the discussion in People v. Bernal, 123 Cal. Rptr. 2d 622 (Cal. Ct. App. 2002), regarding the distinctive purpose restitution serves in the criminal justice system compared to settlement agreements in civil cases:
Restitution is an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his actions have caused. Such a penalty will affect the defendant differently than a traditional fine, paid to the State as an abstract and impersonal entity, and often calculated without regard to the harm the defendant has caused. Similarly, the direct relation between the harm and the punishment gives restitution a more precise deterrent effect than a traditional fine.
While a settlement agreement with, and release of, a defendant's insurance company may reflect a victim's willingness to accept the amount paid in full satisfaction for all civil liability, it does not reflect the willingness of the People to accept that sum in satisfaction of the defendant's rehabilitative and deterrent debt to society. A restitution order pursuant to a defendant's plea is an agreement between the defendant and the state. The victim is not party to the agreement, and a release by the victim cannot act to release a defendant from his financial debt to the state any more than it could terminate his prison sentence.
Id. at 627 (citations, quotation marks, and footnotes omitted).
In addition to the distinct purposes served by restitution, we note that section 775.089(8) contemplates the coexistence of criminal restitution and a civil recovery. See State v. Williams, 689 So. 2d 1233, 1234 (Fla. 2d DCA 1997). The statute provides that the amount of restitution shall be set off against any civil recovery, reflecting the Legislature's recognition that although the restitution obligation is primary, the victim should not receive a double recovery. Although section 775.089(8) assumes that restitution will precede a civil recovery, as the Fourth District has recognized, the sequence is not determinative.
y the plain terms of this statute, the amount of restitution is set off against the wrongful death recovery, while in this case defendant argues that the wrongful death recovery should be set off against the amount of restitution. Nevertheless, the purpose of the statute is clear . . . : to prevent the victim from forcing the defendant to pay twice . . . .
Weinstein v. State, 745 So. 2d 1085, 1086 (Fla. 4th DCA 1999). In Weinstein, the Fourth District reversed for an evidentiary hearing on whether a settlement for the policy limits encompassed all the damages suffered as a result of a wrongful death. Id. at 1087.
Although the restitution statute does not permit a double recovery of the same damages, the damages recoverable through restitution may include elements of damages not necessarily recoverable in a civil action, such as investigative expenses incurred to uncover the criminal activity. See Glaubius, 688 So. 2d at 915. Additionally, restitution ordered
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