Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-2387 _____________________________ SAMUEL BRIAN WILSON, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Alachua County. William E. Davis, Judge. October 6, 2021 NORDBY, J. Samuel Brian Wilson challenges an order awarding restitution to the victim of his drunk driving accident. Wilson argues the restitution results in an impermissible double recovery because the victim’s civil settlement should have been set off against the amount of restitution. We agree and reverse. Around lunchtime, Wilson drove his car onto the dining patio of a Mexican restaurant in Gainesville, Florida. The crash severely injured one of the restaurant’s patrons. Following his arrest at the scene, Wilson pleaded no contest to driving under the influence (fourth or subsequent offense) and refusal to submit to lawful testing. The trial court sentenced Wilson and reserved jurisdiction to determine restitution at a later hearing. Meanwhile, in the civil arena, Wilson’s insurer tendered its bodily injury policy limit of $100,000 to the victim. Soon after, the victim settled her medical expenses with her health insurance provider for $8,288.31. At the restitution hearing, the State sought the $8,288.31 as out-of-pocket medical expenses, as well as separate, undisputed costs of $878.40, for a total of $9,166.71. The parties argued over whether the victim’s civil settlement already covered the disputed expenses. The court ordered Wilson to pay the full amount, finding the victim’s civil settlement did not cover her medical expenses. We review a restitution order for abuse of discretion. Tolbert v. State, 268 So. 3d 947, 949 (Fla. 1st DCA 2019). “[A] trial court’s discretion is limited by rules, statutes, and case law, and a trial court abuses its discretion when its ruling is based on an erroneous view of the law.” Reder v. Miller, 102 So. 3d 742, 744 (Fla. 2d DCA 2012) (citing Mcduffie v. State, 970 So. 2d 312, 326 (Fla. 2007). And under the governing statute here, the State bears the burden to prove the amount of restitution by the preponderance of the evidence. § 775.089(7), Fla. Stat. (2017). When an offense results in bodily injury to a victim, a restitution order requires a defendant to pay the cost of necessary medical treatment, physical therapy and rehabilitation, and loss of income. §775.089(2)(a), Fla. Stat. Restitution does not prevent any later civil recovery, “but the amount of such restitution shall be set off against any subsequent independent civil recovery.” §775.089(8), Fla. Stat. Although the statute assumes the restitution order will come first, the sequence is unimportant. Kirby v. State. 863 So. 2d 238, 243 (Fla. 2003). Instead, the statute simply “prevent[s] the victim from forcing the defendant to pay twice.” Id. (quoting Weinstein v. State, 745 So. 2d 1085, 1086 (Fla. 4th DCA 1999)). But civil damages might be different from those recoverable through restitution, so a court must set off only for the elements of damages already recovered. Peterson v. Therma Builders, Inc., 958 So. 2d 977, 980 (Fla. 2d DCA 2007). A judgment constitutes a double recovery when the two awards overlap. Id. In Peterson, the defendant faced dual liability for fraud, and the criminal court ordered restitution. Id. at 978. Later, the civil court subtracted the amount of restitution the 2 defendant already paid and entered judgment for the remaining balance. Id. at 979. On appeal, the court reversed because nothing in the record showed that the civil damages were different from the restitution damages. Id. at 980. In contrast, restitution does not constitute a double recovery when a victim’s out-of-pocket expenses exceed a civil insurance settlement. Kirby, 863 So. 2d at 245. In Kirby, the defendant faced dual liability for a car crash. Id. at 240. The civil side settled, and the defendant’s insurance company paid out the policy limit to the victim. Id. In the criminal context, the Florida Supreme Court explained that restitution would not constitute a double recovery because the victim’s out-of-pocket expenses were greater than the policy limits. Id. at 245. We conclude the restitution order here results in a double recovery. Just like Peterson, nothing in the record differentiates the civil damages and restitution. The State claims that the settlement addressed the victim’s pain and suffering and not her out-of-pocket expenses. But neither the settlement offer nor the release statement supports this contention because they do not expressly limit the settlement to pain and suffering. To the contrary, the language in the release encompasses “all injuries and damages, known and unknown,” and clarifies the victim “is responsible for satisfaction of any and all claims, costs, obligations and liens of any kind, arising out of the accident.” And unlike Kirby, the victim’s out-of-pocket medical expenses here did not exceed the civil settlement. We are mindful that release statements will typically contain broad language, and because courts must set off for the damages already recovered, see Peterson, 958 So. 2d at 977, the two awards may often overlap. This could lead to situations in which a civil settlement in fact fails to cover the totality of a victim’s damages even if the amount is enough to pay for the victim’s out-of-pocket expenses. The State argues that is the case here. But the State relied on conclusory assertions in the victim’s settlement demand letter and offered no other evidence of the victim’s actual total damages. The statute governing restitution requires a set off to prevent a double recovery when the two amounts overlap. On the 3 record before us, the State failed to carry its burden to prove the amount of restitution. We conclude the trial court erred by failing to set off the civil settlement against the amount of restitution under section 775.089(8), Florida Statutes. We reverse the restitution order and remand for the entry of a new restitution order for the undisputed amount of $878.40. REVERSED and REMANDED with instructions. OSTERHAUS, J., concurs; MAKAR, J., concurs dubitante with opinion. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ MAKAR, J., concurring dubitante. During the lunch hour, an inebriated Samuel Brian Wilson rammed his vehicle into, and severely and permanently injured, a veterinarian student while she dined at a Mexican restaurant’s outdoor patio. Wilson—who had prior charges of driving under the influence—pled guilty and a restitution hearing was held, which resulted in an award of $9,166.71, consisting of medical expenses the victim had personally paid: Blue Cross Blue Shield (BCBS), $8,288.31; Alachua County Fire Rescue, $198.37; UF Health, $621.52; and UF Physicians, $58.51. On appeal, Wilson contests only the $8,288.31 paid to BCBS, claiming the victim received double recovery of her losses. To begin, no dispute exists as to the amount of the restitution sought in this case or that the victim’s payment to BCBS was for medical expenses incurred due to Wilson’s criminal negligence. The only issue is whether awarding restitution for the victim’s payment to BCBS amounts to a double recovery under the circumstances, where the victim’s severe injuries resulted in 4 substantial medical expenses that are offset by insurance proceeds. The victim had severe and permanent injuries that, according to her attorney’s detailed demand letter to the insurers, had and would continue to result in substantial medical expenses. The letter provided a reasonable basis and a rough estimate of at least $500,000 of damages arising from the rib and clavicle fractures, lung damage, and the surgery to permanently alter the victim’s shoulder. The victim, however, only received insurance settlements at the policy limits for two policies, one at $100,000 from Wilson’s insurer and the other at $50,000 from her insurer. Those are the maximum amounts the victim could receive under the two policies, no matter the severity or permanency of her injuries; she settled for these amounts because they are the most she could receive, even if her medical expenses exceeded the policies’ limits. Because restitution serves societal interests separate and apart from civil damage awards, and the State is not a party to settlement agreements, courts are permitted to enter restitution awards above policy limits even if the victim and defendant have entered a settlement agreement that contains a release of liability. Kirby v. State, 863 So. 2d 238, 241 (Fla. 2003) (“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.”). This case parallels Kirby, where the prosecutor “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.” Id. at 245. The supreme court in Kirby ruled that a hearing was necessary to determine the extent to which restitution was appropriate despite the victim’s receipt of insurance proceeds and the release of liability. The rub in this case is that the record doesn’t reflect the extent of the victim’s actual medical expenses. The evidence presented— the victim’s demand letter to the insurers a month after the incident—is competent substantial evidence that the medical expenses resulting from the injuries that Wilson inflicted on the victim were highly likely to be in the half-million-dollar range. 5 What’s missing, and what would close the evidentiary loop in this type of case, is some evidence showing the victim’s actual medical expenses exceeded $150,000 by at least the amount of restitution sought. The caselaw, which imposes a number of hurdles in proving restitution, reflects that evidence of actual loss is necessary. That said, it is hard to fault the trial judge for awarding such a modest amount of restitution for such a ruinous crime when the record shows a severely injured and faultless victim whose medical expenses appear to easily exceed the policy limits of the settlements she received. For that reason, it seems dubious that the trial judge committed an “abuse of discretion” in requiring restitution for the victim’s payment to BCBS, leaving Wilson to shoulder less than a thousand dollars in restitution for a severely and permanently injured victim, but that appears to be what the law requires. _____________________________ Jessica J. Yeary, Public Defender, Tyler K. Payne, Assistant Public Defender, and Megan Lynne Long, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, Robert Quentin Humphrey, Assistant Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee. 6