Summary
In Livingston v. State, 311 So. 3d 331, 333 (Fla. 2d DCA 2021), the Second District found that attorney's fees awarded in restitution do not have to be reasonable; they "are properly awardable... so long as they are causally connected to the crime."
Summary of this case from Love v. StateOpinion
Case No. 2D20-65
02-03-2021
Stanley Dean LIVINGSTON, Appellant, v. STATE of Florida, Appellee.
Howard L. Dimmig, II, Public Defender, and Frederick W. Vollrath, Special Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, for Appellee.
Howard L. Dimmig, II, Public Defender, and Frederick W. Vollrath, Special Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, for Appellee.
KHOUZAM, C.J. Stanley Dean Livingston appeals his convictions and sentences for grand theft (over $100,000) and unlawful filing of false documents against real property. We affirm in all respects. But we write to explain why we reject Mr. Livingston's contention that a criminal restitution award that includes attorney's fees is subject to the requirements set forth in Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985), for determining reasonable attorney's fees.
As part of a deal with the U.S. Department of Veterans Affairs, Mr. Livingston was to receive a brand new, fully furnished home "100 percent government fully financed." Under the deal, Mr. Livingston also had no down payment or closing costs and, consequently, was not required to "come out of pocket one single dime" in order to buy the house. Nonetheless, he decided to steal it.
At the closing, attendees suspected something was wrong because Mr. Livingston was acting nervous, making strange requests, and refusing to follow various standard procedures. Their suspicions were proven prescient when, as the notary's back was turned, Mr. Livingston abruptly grabbed the original deed and promissory note, sprinted out the front door, and drove away. A few days later, Mr. Livingston recorded the stolen deed, which now bore additional handwriting stating—falsely—that he had accepted it in return for lawful and valuable consideration.
After learning that the closing had fallen through, the seller tried to show the home to another potential buyer. But upon arrival, they could not gain entry. Mr. Livingston had taken possession of the home, changed the locks, and posted handwritten signs stating the property was under new management.
Based on this conduct, Mr. Livingston went to trial on charges of grand theft (over $100,000) and unlawful filing of false documents against real property, and a jury found him guilty on both counts. Thereafter, a restitution hearing was held at which the State adduced evidence of the losses caused by Mr. Livingston's criminal conduct. In particular, an attorney for the seller testified that Mr. Livingston's recording of the deed had prevented the seller from being able to sell the home due to a cloud on the title. In order to clear the title, the attorney had needed to litigate a quiet title action, which she had won at summary judgment. The attorney testified to the nature and amount of the work required to clear the title, including the amount of attorney's fees actually incurred. The State also introduced documentation reflecting the legal services performed and their value. Ultimately the trial court ordered Mr. Livingston to pay $18,666.50 in restitution, representing the attorney's fees actually expended in clearing the title on the real property.
On appeal, Mr. Livingston contends, and the State mistakenly concedes, that because the restitution award represents monies spent on attorney's fees, the trial court was required to make findings regarding reasonable attorney rates and time as set forth in Rowe. But the parties have failed to identify, and we have been unable to locate, any authority for the proposition that Rowe findings are required to support a criminal restitution award. Accordingly, we reject the State's concession and clarify that Rowe does not govern criminal restitution awards.
See, e.g., Perry v. State, 808 So. 2d 268, 268 (Fla. 1st DCA 2002) (observing that confessions of error are "not binding upon an appellate court" and further that "it is the practice of Florida appellate courts not to accept erroneous concessions by the state").
In Rowe, the Florida Supreme Court considered the constitutionality of a statute "direct[ing] the trial court to award a ‘reasonable attorney's fee’ to the prevailing party in a medical malpractice action." 472 So. 2d at 1146 (quoting § 768.56, Fla. Stat. (1981) ). In doing so, it expressly adopted "the federal lodestar approach for computing reasonable attorney fees." Id. As part of that approach, "the trial court must set forth specific findings" regarding "the hourly rate, the number of hours reasonably expended, and the appropriateness of the reduction or enhancement factors." Id. at 1151.
During the intervening decades since Rowe was decided, its holding has been modified. See, e.g., Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828, 833 (Fla. 1990) (reaffirming Rowe "concerning the lodestar approach as the basic starting point" but holding "that the use of the contingency fee multiplier should be modified"). Nonetheless, the requirement of making specific findings as to the " Rowe factors" in determining a reasonable attorney's fee has survived and remains fully intact. See, e.g., Joyce v. Federated Nat'l Ins. Co., 228 So. 3d 1122, 1126 (Fla. 2017) (reiterating the requirement); Jacobs v. Jacques, 310 So.3d 1018 (Fla. 2d DCA Aug. 12, 2020) (reversing attorney's fees award for failure to make Rowe findings).
However, this requirement has not been applied to a criminal restitution award. See, e.g., Baratta v. Valley Oak Homeowners’ Ass'n at the Vineyards, Inc., 928 So. 2d 495, 497 (Fla. 2d DCA 2006) ("In Rowe, the supreme court adopted the federal lodestar approach for determining a reasonable attorney's fee under a prevailing party attorney's fee statute or contractual provision ." (emphasis added)). And with good reason: the plain language of Florida's restitution statute sets forth a materially different standard. The relevant statutory language provides:
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.
§ 775.089(1)(a), Fla. Stat. (2019). Under this statute, attorney's fees are properly awardable in restitution so long as they are causally connected to the crime. See Arling v. State, 559 So. 2d 1274, 1275-76 (Fla. 2d DCA 1990) (affirming restitution award for attorney's fees "causally relate[d] ... to the criminal offense" and observing that "[i]t is reasonably foreseeable to a person who deals in stolen property that the act of selling stolen property may result in a third party filing litigation to determine the rightful owner of that property").
Unlike the statute at issue in Rowe, the language of the restitution statute does not require the trial court to determine a "reasonable attorney's fee." To the contrary, it requires the trial court to order restitution for any "[d]amage or loss caused directly or indirectly by," or "related to," the criminal conduct, absent a compelling reason not to. Thus, Rowe's discussion of the statutory language for determining a reasonable prevailing-party attorney's fee does not control the analysis under the materially different statutory language governing criminal restitution awards.
Further, to hold otherwise would undermine the express purpose behind restitution. "Unlike civil damages, restitution is a criminal sanction. The purpose of restitution is not only to compensate the victim, but also to serve the rehabilitative, deterrent, and retributive goals of the criminal justice system." Spivey v. State, 531 So. 2d 965, 967 (Fla. 1988). These goals are best served by imposing restitution in an amount proportional to the harm caused by the defendant's criminal conduct, as set forth in the restitution statute.
Accordingly, we hold that the trial court was not required to make Rowe findings in awarding attorney's fees as criminal restitution, and therefore, Mr. Livingston has failed to show any error.
Affirmed.
SLEET and LABRIT, JJ., Concur.