Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT LORRAINE JEAN EYLWARD, ) ) Appellant/Cross-Appellee, ) ) v. ) Case No. 2D18-2169 ) STATE OF FLORIDA, ) ) Appellee/Cross-Appellant. ) ) Opinion filed February 5, 2020. Appeal from the Circuit Court for Pinellas County; Pat Siracusa, Judge. Howard L. Dimmig, II, Public Defender, and Siobhan Helene Shea, Assistant Public Defender, Bartow, for Appellant/Cross-Appellee. Ashley Moody, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa for Appellee/Cross-Appellant. LUCAS, Judge. Lorraine Jean Eylward was tried by a jury and found guilty of one count of exploitation of an elderly person, a violation of section 825.103(1), Florida Statutes (2012). We find no merit in her arguments on appeal and affirm her conviction accordingly. The State has filed a cross-appeal, arguing that the trial court erred when it declined to require Ms. Eylward to pay any amount of restitution. The State points out that the jury had made a specific finding that Ms. Eylward had misappropriated more than $20,000 but less than $100,000 of the victim's funds. At sentencing, the State urged the court to impose restitution in the amount of $85,483; Ms. Eylward's counsel argued that an appropriate restitution amount would be less than half of that. The trial court, however, ruled: [A]s it relates to restitution, one of the things I thought I'd do is reserve on restitution, but the more I think about it, the more I realize that I can't set a restitution amount in this case. I can make a finding that the jury found that it should be between [$]20,000 and $100,000 is what she was convicted of either taking or attempting to take. Therein lies the problem, I don't know how much they thought she attempted to take versus how much they thought she took. There's no specific finding as to what they thought she took. .... So while I do not disturb their decision that it was [$]20,000 or more, but less than [$]100,000, absent guidance, I can't impose a specific amount. So I'm going to set restitution at zero . . . . In our view, the court misperceived its role in determining restitution. We review a trial court's determination of a restitution amount for abuse of discretion. See State v. Hawthorne, 573 So. 2d 330, 333 (Fla. 1991) ("Therefore, we hold that a court is not tied to fair market value as the sole standard for determining restitution amounts, but rather may exercise such discretion as required to further the purposes of restitution."); M.P. v. State, 256 So. 3d 231, 234 (Fla. 2d DCA 2018) ("We review for an abuse of discretion the trial court's determination of the amount of -2- restitution, and we will not disturb the findings underlying that determination if competent substantial evidence supports them."). That review necessarily revolves around the statute that governs restitution in criminal proceedings, section 775.089, Florida Statutes (2012), which provides: (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. (b)1. If the court does not order restitution, or orders restitution of only a portion of the damages, as provided in this section, it shall state on the record in detail the reasons therefor. (7) Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense is on the state attorney. The burden of demonstrating the present financial resources and the absence of potential future financial resources of the defendant and the financial needs of the defendant and his or her dependents is on the defendant. The burden of demonstrating such other matters as the court deems appropriate is upon the party designated by the court as justice requires. (Emphasis added.) Under this statute, a trial court must impose restitution (unless it states on the record clear and compelling reasons not to) and it is required to resolve any dispute about the amount of restitution to be paid. See Townsend v. R.J. Reynolds Tobacco Co., 192 So. 3d 1223, 1229 (Fla. 2016) ("Generally, the word 'shall' is -3- interpreted as mandatory in nature." (citing S.R. v. State, 346 So. 2d 1018, 1019 (Fla. 1977))). In the case at bar, there was apparently some confusion over the trial court's role and the role of the jury's findings when resolving disputed restitution. That issue has been addressed by the Florida Supreme Court and the district courts of appeal. In J.O.S. v. State, 689 So. 2d 1061, 1062 (Fla. 1997), the supreme court answered the certified question whether, in the absence of a plea agreement, restitution could be ordered in an amount greater than the maximum dollar value defining the offense for which a defendant is adjudicated guilty. Answering that question in the affirmative, the J.O.S. court explained that the broadened statutory language that restitution for damage or loss must be "caused directly or indirectly by the defendant's offense" and "related to the defendant's criminal episode," means that a restitution award under section 775.089(1)(a) need only bear a "significant relationship" to the convicted offense, so that a court can order restitution in an amount greater than the maximum dollar value defining the offense for which the defendant was adjudicated guilty. Id. at 1064-65. Florida's district courts of appeal have steadfastly applied the directions of section 775.089 and the instruction of J.O.S. See generally State v. Tomasheski, 168 So. 3d 248, 249-50 (Fla. 4th DCA 2015) (reciting section 775.089(7) and observing, "[t]his does not mean that a jury can never be asked to determine the amount of loss or damage, but a jury decision is not required"); A.J.N. v. State, 715 So. 2d 1171, 1172 (Fla. 5th DCA 1998) ("[A] trial court can order restitution 'greater than a maximum dollar value defining an offense for which a defendant is adjudicated guilty' when the amount is proved by a preponderance of the evidence." (quoting J.O.S., 689 -4- So. 2d at 1065)); A.G. v. State, 718 So. 2d 854, 855 (Fla. 4th DCA 1998) (explaining that the 1993 amendment to section 775.089 "made clear that restitution to the victim not only would include the damage or loss caused directly or indirectly by the defendant's offense, but also would include the damage or loss related to the defendant's criminal episode"). Simply put, a trial court is not bound by the monetary thresholds of an adjudicated offense when it decides restitution. Here, the trial court proceeded under the mistaken impression that it was, and that because the jury had not determined the precise dollar amount that constituted Ms. Eylward's offense, the court was precluded from entering any restitution at all. That was legal error. See § 775.089(1); J.O.S., 689 So. 2d at 1065; Tomasheski, 168 So. 3d at 249-50; A.G., 718 So. 2d at 855; A.J.N.; 715 So. 2d at 1172. And the nature of that error constituted an abuse of discretion. Cf. Mitschke-Collande v. Skipworth Props. Ltd., 201 So. 3d 660, 664 (Fla. 3d DCA 2016) (concluding that "the trial court committed legal error and, consequently, an abuse of discretion"); Vitale v. Vitale, 994 So. 2d 1242, 1243 (Fla. 4th DCA 2008) ("It is legal error and thus fundamentally an abuse of discretion to choose an alternative not permitted by statute."). Therefore, we reverse the order below and remand for the court to convene a restitution hearing in accordance with this opinion. Reversed and remanded with directions. LaROSE and ATKINSON, JJ., Concur. -5-