Defendant in criminal proceeding may be ordered to pay restitution even though civil settlement released liability

Law Reporter, Mar 2004

Kirby v. Florida, ___ So. 2d ___, No. SC02-1511, 2003 WL 22304524 (Fla. Oct. 9, 2003).

The Florida Supreme Court held that a trial court's obligation to order restitution in criminal cases is not precluded by a civil settlement in which the parties agree defendant is released from further liability.

Here, Kirby struck another car while driving under the influence. Both a civil claim and a criminal prosecution ensued. The plaintiff in the civil suit agreed to settle the claim for Kirby's insurance policy limit and to release defendant from liability. Kirby was found guilty in the criminal trial, and the state asked for restitution for damages not covered by the policy limit. Although the trial court initially ordered restitution in lieu of a prison sentence, it later denied restitution based on a previous appellate court decision that criminal restitution is precluded by a civil settlement agreement. The appellate court in this circuit reversed, disagreeing with the other circuit's ruling.

Affirming, the state high court held the state's statutory requirement that a trial court order restitution is not superseded by a settlement agreement. Fla. Stat. ch. 775.089 requires a court to order restitution for damages or loss resulting from a criminal offense unless the court finds clear and compelling reasons not to order restitution. The release of liability in a settlement agreement, the court said, is not a clear and compelling reason.

Noting that civil damages and restitution serve different societal interests, the court found that restitution is a criminal sanction that is designed to deter further criminal acts. The state has no involvement in a settlement agreement, but is responsible for requesting restitution as part of a plea agreement. Further, the court noted, civil agreements often take more time than restitution, which takes effect immediately.

Acknowledging that restitution cannot be ordered if the victim's damages have already been entirely paid under the settlement agreement, the court said that here, the policy limit did not cover many of the medical bills and lost wages incurred by the victim. Moreover, defendant avoided a prison sentence in part because the trial court found that restitution was more beneficial to the victim.

Thus, the court ordered restitution and remanded for trial regarding the amount.

State's Attorneys

Charles J. Grist Jr., Daytona Beach, Fla.

Judy Taylor Rush, Daytona Beach, Fla.