Date: 10-05-2020

Case Style:

Case Number: 19-1887

Judge: Robert J. Morris

Court: SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA

Plaintiff's Attorney: Ashley Moody, Attorney General,
Tallahassee, and David Campbell,
Assistant Attorney General, Tampa

Defendant's Attorney:

Description: Wauchula, FL - Criminal Defense Attorney, three counts of dealing in stolen property, three
counts of providing false verification of ownership to a pawn broker, one count of
possession of methamphetamine, and one count of possession of paraphernalia.

When a defendant challenges a restitution award, a court must determine
whether "the loss or damage is causally connected to the offense and bears a
significant relationship to the offense." Koile v. State, 934 So. 2d 1226, 1234 (Fla.
2006) (quoting Schuette v. State, 822 So. 2d 1275, 1280 (Fla. 2002)). "To be causally
connected to an offense, the restitution award must arise out of the offense with which
the defendant is actually charged." Malarkey v. State, 975 So. 2d 538, 540 (Fla. 2d
DCA 2008). "Further, when a defendant agrees to pay restitution as part of a plea
agreement, the defendant's agreement is limited to restitution arising out of the offense
charged by the State as reflected in the information and/or by the factual basis for the
plea set forth by the State when the plea is entered." Id. at 540-41 (emphasis added);
see also James v. State, 223 So. 3d 288, 290 (Fla. 4th DCA 2017).
Notably, courts look to arrest affidavits and discovery materials provided to
the defendant prior to entry of a plea to determine whether, as part of the factual basis
for entry of the plea, the items for which restitution was awarded were listed. See, e.g.,
Siminski v. State, 1 So. 3d 1161, 1162-63 (Fla. 2d DCA 2009) (reversing restitution
order and remanding where several items not listed in information or discussed during
factual basis for the plea were claimed at the restitution hearing but where the record on
appeal was unclear "whether the discovery materials available to the defense at the
time of the plea hearing included more items than those that were listed in the
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information and which the State anticipated as being compensable as restitution");
Malarkey, 975 So. 2d at 540-42 (reversing restitution order and remanding where items
for which restitution was awarded were not listed in discovery materials provided to
defense prior to entry of plea, information, or arrest warrant and thus "were not
encompassed within the original [theft] charge against Malarkey[] and the theft of those
items constitutes a separate offense with which Malarkey has not been charged"); Avery
v. State, 838 So. 2d 1247, 1248 (Fla. 2d DCA 2003) (reversing restitution award and
remanding where although victim testified he told law enforcement about the missing
monies from the second theft, the arrest warrant only referenced the missing monies
from the first theft that had already been repaid and where the factual basis recited at
the plea hearing only referred to the missing monies from the first theft); James, 223 So.
3d at 290-91 (reversing restitution order and remanding on the basis that it included
restitution for items not related to appellant's convictions for giving false information to a
pawnbroker and dealing in stolen property where jewelry for which restitution was
awarded was not listed in the information or arrest warrant affidavits and where State
made it clear during the factual basis for the plea that it was only seeking restitution for
the items because they were stolen, not pawned, even though appellant was not
charged with theft); S.S. v. State, 122 So. 3d 499, 502 (Fla. 4th DCA 2013) (reversing
restitution order in part as to two items that were not listed in arrest affidavit, the factual
basis for the plea, or in any discovery that the appellant received prior to the entry of the
plea and explaining that "in order for the court to require restitution, either the arrest
affidavit or the facts admitted . . . at the time of the plea must include the items for which
the court orders restitution").
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The issue is essentially one of notice to a defendant of the items for which
the State seeks restitution. Cf. Nelson v. State, 113 So. 3d 1032, 1033 (Fla. 5th DCA
2013) (holding that where information only charged defendant with dealing in stolen
property and where State's presentation at plea hearing "was insufficient to link [the
defendant] to [a] burglary or to place [him] on notice that it intended to seek restitution
from him based upon the burglary," trial court could not award restitution for jewelry
stolen from victim's home during a burglary that preceded the crime with which
defendant was charged); Noland v. State, 734 So. 2d 464, 466 (Fla. 5th DCA 1999)
(holding that where charging document only referenced specific stolen items, trial court
committed fundamental error by awarding restitution for additional items testified about
at restitution hearing because "[r]estitution cannot be ordered for a theft not
encompassed within the charge contained in the information" (citing Stewart v. State,
629 So. 2d 982 (Fla. 5th DCA 1993))).
Here, Ferri's arrest warrant alleged that he committed the crime of grand
theft in addition to the crimes of dealing in stolen property and providing false
information to a pawnbroker. The arrest affidavit also specifically noted that in a postMiranda1
interview, Ferri not only admitted to stealing the items that he subsequently
pawned, but he also admitted that other jewelry that the victim listed as missing,
"includ[ing] a tennis bracelet, was sold to . . . separate individuals to pay off drug debts."
Further, at the time of his arrest, law enforcement had already recovered the other three
items that served as the basis for the dealing in stolen property charges. Thus no
restitution would have been due to the victim for those items. Yet Ferri acknowledged in
1Miranda v. Arizona, 384 U.S. 436 (1966).
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his plea form that he agreed to pay restitution and that a stipulation or restitution hearing
would be necessary to determine the amount of restitution. Such a stipulation or
hearing would be unnecessary if there were no items for which restitution was due.
It is true that the factual basis for the plea was not discussed in detail and
that, instead, defense counsel merely made a general stipulation at the plea hearing. It
is also clear that the charging document did not contain a theft charge or otherwise refer
to the tennis bracelet. But we are unconvinced that the State's decision not to charge
Ferri with the theft of the tennis bracelet precludes restitution for that item when the
arrest affidavit clearly noted Ferri's admission to stealing and then selling that item.
Unlike the James case, wherein the court rejected the State's argument that all the
jewelry was taken in an ongoing episode, 223 So. 3d at 290, here, Ferri acknowledged
that he engaged in an ongoing criminal episode stealing various items and selling them
either to pawnbrokers or to drug dealers to fund his drug habit. And when Ferri entered
his stipulation to the factual basis for the plea, he did not restrict his stipulation to only
the items underlying the dealing in stolen property charges. This is not a situation
where our record is unclear as to whether the discovery materials available to the
defense at the time of the plea hearing included more items than those that were listed
in the information. Cf. Siminski, 1 So. 3d at 1163. Rather, in this case, the defense had
the arrest affidavit available to it prior to the entry of the plea, and the arrest affidavit not
only alleged that a theft occurred in conjunction with the other charges, but it also
contained reference to the tennis bracelet which put Ferri on notice that it could be a
compensable restitution item. Ferri's explicit agreement to make restitution in
conjunction with the fact that the victim had already recovered the other stolen items
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only supports the conclusion that Ferri anticipated that he would have to pay restitution
for the only other specifically referenced stolen item in the arrest affidavit, i.e., the tennis
bracelet. Accordingly, we conclude that the loss of the tennis bracelet is causally
connected and bears a significant relationship to the charged offenses and that,
therefore, restitution was properly awarded for that item.

Outcome: Affirmed

Plaintiff's Experts:

Defendant's Experts:

Comments: