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Kirby v. State10/9/2003
as part of a criminal sanction includes coercive elements not available in the enforcement of a civil judgment, see Vereen v. State, 703 So. 2d 1193, 1194 (Fla. 4th DCA 1997), and may also take into consideration the timing of repayment:
A restitution award may take into consideration that the timing of repayment may cause the victim to suffer additional loss. A final judgment in a civil case speaks instantly; it fixes the amount due and compensates a plaintiff for a delay in payment by including an award of post-judgment interest. Although a restitution order may be enforced in the same manner as a civil judgment, recovery in this manner is unusual; restitution is more likely to occur when it is made a condition of a criminal sentence.
J.K. v. State, 695 So. 2d 868, 869 (Fla. 4th DCA 1997) (footnote omitted). Thus, the award of restitution can include installment payments enforceable as a condition of probation-a remedy not available in a civil lawsuit. See State v. Hitchmon, 678 So. 2d 460, 462 (Fla. 3d DCA 1996).
Civil damages and criminal restitution are distinct remedies, both of which are available to the victim regardless of whether an enforceable civil obligation exists prior to sentencing. We agree with Judge Northcutt's well-reasoned dissent on this point in Vandonick, wherein he stated:
When assessing the victim's damage or loss, prior settlement with the defendant would be a relevant consideration if the settlement amount reflected the true value of the victim's claim. But a variety of circumstances might induce a victim to settle claim for less than actual damages-problems of proof, for example, or her immediate financial need, or the inadequacy of the defendant's liability insurance policy limits. Such considerations should have no bearing on the court's statutory duty to order restitution for the damage or loss caused by the defendant's criminal conduct. Where, as here, the settlement was for a sum which was less than the victim's damage or loss, an order imposing restitution based solely on the amount of the settlement would violate the clear requirements of the statute.
Vandonick, 800 So. 2d at 241 (Northcutt, J., dissenting).
Because ordering restitution and setting a restitution amount are non-delegable judicial responsibilities, the defendant cannot defeat the trial court's statutory obligation to impose restitution as part of the criminal sanction by virtue of a settlement agreement and release in the civil case. Of course, the amount of the settlement will be a relevant factor for the trial court to consider in determining the amount of restitution so as to prevent a double recovery, which would be contrary to section 775.089(8). See Weinstein, 745 So. 2d at 1086.
THIS CASE
In this case, imposing a restitution obligation on Kirby will not give the victim a double recovery, which is precluded by the "setoff" requirement of section 775.089(8). In arguing for restitution, the prosecutor noted that the victim settled for the $25,000 policy limit because he was unable to pay mounting medical bills. The prosecutor further explained that the victim's out-of-pocket expenses exceeded the policy limits and were related to medical bills, deductibles, and lost wages-all of which are recoverable under the restitution statute. Because the trial court denied an evidentiary hearing after concluding that Vandonick governed, the amounts of these items are not in the record.
Additionally, we note that in this case, Kirby received the benefit of a downward departure sentence of five years' probation rather than a prison term as specified in the sentenc
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