RACHELLE MARIE JAMES v. STATE OF FLORIDA , 223 So. 3d 288 ( 2017 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
RACHELLE MARIE JAMES,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D15-4854
[July 12, 2017]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; James W. McCann, Judge; L.T. Case No.
562013CF003237A.
Carey Haughwout, Public Defender, and Mara C. Herbert, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L.
Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
FORST, J.
Appellant Rachelle James appeals the trial court’s restitution order
requiring her to pay $22,997.95 with respect to thirty pieces of jewelry that
were stolen from the victim. Appellant originally pled no contest to seven
counts of giving false information to a pawnbroker contrary to section
539.001(8)(b)8.a., Florida Statutes (2013), and seven counts of dealing in
stolen property contrary to section 812.019(1), Florida Statutes (2013). On
appeal, Appellant first argues the trial court incorrectly ordered restitution
for twenty pieces of jewelry. She secondly argues that the trial court
miscalculated the restitution value for almost all of the jewelry for which
restitution was appropriate. As set forth below, we agree with Appellant’s
first argument and therefore reverse in part the restitution order
concerning twenty of the jewelry pieces. Due to Appellant’s failure to object
below to the valuation of the remaining ten items, we affirm with respect
to those jewelry pieces.
Background
The State charged Appellant with seven counts of giving false
information to a pawnbroker and seven counts of dealing in stolen
property. Appellant pled no contest to all counts. For the crimes, the trial
court sentenced Appellant to a total of five years in prison, followed by ten
years of probation.
At the plea hearing, the prosecutor provided the factual basis for the
plea, saying: “the State would have shown that this Defendant was hired
as a house cleaner for the victims in this case . . . . For some time they
started noticing jewelry missing and other items missing from the house
and they weren’t quite sure what was going on.” The prosecutor then
explained that “[e]ventually they figured out it was this Defendant who was
stealing from them. . . . There was a controlled phone call done between
the victim and this Defendant. This Defendant admitted in this controlled
call that she stole the jewelry to pay for her drug habit.” Later at the
restitution hearing, the victim recalled that Appellant was the only person
who had a house key other than the victim and her husband.
At the same restitution hearing, Appellant objected to the trial court
ordering restitution for twenty pieces of jewelry that the State did not
include in the information. 1 Appellant argued the information only
charged her with dealing in stolen property and she therefore should only
have to pay restitution for the ten items she admitted she pawned. The
prosecutor disagreed, saying, “[t]his is one criminal episode. The
testimony that was unrebutted was, you know, this Defendant was the
only one who had access. You have all these items missing and she pawns,
you know, a bunch of others. So I think the logical conclusion
circumstantially is she pawned them.” The trial court agreed with the
prosecutor, explaining that Appellant would have to pay for the twenty
additional pieces of jewelry because “the evidence has established that
these items were taken during an ongoing criminal episode whereby the
Defendant had access to the victim’s house and these items were missing,
that there’s no other evidence to explain their absence.”
Once the State established the number of pieces of jewelry missing, it
sought to calculate their value for restitution. The State obtained their
value by questioning the victim. For fourteen pieces of jewelry, the victim
testified she estimated their value based on “website evaluations,” in which
she compared the value of her items to similar items online. She did not
provide any documentation of the evaluations. For another three pieces
1These twenty pieces of jewelry, numbered in accordance with the trial court’s
exhibit one, were items 1, 2, 3, 6, 7, 8, 9, 10, 13, 15, 16, 17, 18, 19, 20, 22, 23,
28, 29, and 30.
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of jewelry, the victim estimated their value based on other people’s
statements. Finally, for another four pieces of jewelry, the victim estimated
their value by guessing their appreciation over time. Appellant’s only
objection concerned the victim’s speculation that some of the items had
increased in value due to appreciation of the price of gold.
The trial court accepted the victim’s valuation of all thirty pieces of
jewelry, and ordered restitution in the amount of $22,997.95. Appellant
now appeals the restitution order.
Analysis
“We review trial court restitution orders for an abuse of discretion.”
Gonzalez v. State, 40 So. 3d 86, 88 (Fla. 4th DCA 2010).
Appellant first argues on appeal that the trial court wrongly imposed
restitution for twenty pieces of jewelry she never admitted she pawned.
Appellant explains she only entered a no contest plea to pawning ten
pieces of stolen jewelry—which she concedes in her initial brief were the
subjects of the dealing in stolen property charges. 2 However, the twenty
additional pieces of jewelry were relevant to only the separate crime of
theft, for which the State did not charge Appellant. Moreover, the State
never sought restitution for these stolen items, having failed to include
them in its information, arrest warrant affidavits, or factual basis.
We agree with Appellant. The trial court abused its discretion in
awarding restitution for the twenty additional pieces of jewelry. Pursuant
to section 775.089(1)(a), Florida Statutes (2013), a defendant must pay
restitution for damage or loss caused directly or indirectly by his or her
offenses and for damage or loss related to the criminal episode.
Consequently, it is a foundational rule that “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.”
Malarkey v. State, 975 So. 2d 538, 540-41 (Fla. 2d DCA 2008) (emphasis
added); accord A.D. v. State, 152 So. 3d 798, 798 (Fla. 4th DCA 2014); see
also Socorro v. State, 901 So. 2d 940, 941 (Fla. 5th DCA 2005) (“Absent a
causal link and significant relationship between the loss for which
restitution is ordered and the defendant’s offense, restitution may not be
ordered for any loss which resulted from an unrelated offense for which
the defendant was not charged or convicted.”).
2These ten pieces of jewelry Appellant agrees in her initial brief that she pawned
and owes restitution for were items 4, 5, 11, 12, 14, 21, 24, 25, 26, and 27.
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Relevant here, the State only charged Appellant with dealing in stolen
property. The State’s presentation of its factual basis for this charge made
clear that it only sought restitution for the twenty additional pieces of
jewelry because they were stolen—not pawned. The State’s arrest warrant
affidavits are similarly limited in scope to the sole crime of dealing in stolen
property. Accordingly, we find that, in this case, the crime of theft and the
crime of dealing in stolen property are unrelated and constitute separate
criminal episodes that, here, were separated by time, place, and manner
of commission. See Medlin v. State, 180 So. 3d 1101, 1102-03 (Fla. 5th
DCA 2015) (finding that the trial court erred in awarding restitution for
“several items which were not covered by the charges” set forth in the
information and “not related to [the defendant’s] conviction”); Faulkner v.
State, 582 So. 2d 783, 783-84 (Fla. 5th DCA 1991) (similar).
Appellant’s second argument on appeal, related to the value of the
pawned items, is unpreserved. As a preliminary matter, Appellant does
not contest in her initial brief the sufficiency of the evidence for items 5,
11, and 24. She does contest the evidence for the other seven pawned
items. However, Appellant failed to object below to the valuation of these
jewelry pieces, as the victim’s valuation of these seven items (4, 12, 14, 21,
25, 26, and 27) was not premised on an increase in the price of gold and
thus was not an object of Appellant’s sole objection with respect to
valuation prior to this appeal. Having failed to object to the value of these
items at the restitution hearing, Appellant failed to preserve the issue for
appellate review. See Kiefer v. State, 909 So. 2d 572, 574 (Fla. 5th DCA
2005) (“We have held that the contemporaneous objection rule applies to
restitution proceedings.”); Fillyaw v. State, 734 So. 2d 1136, 1137 (Fla. 1st
DCA 1999) (similar); J.S. v. State, 717 So. 2d 175, 177 (Fla. 4th DCA 1998)
(“Because restitution is imposed after a contested adversary hearing, there
is no reason to create a different rule than the one prevailing at trial, where
a timely objection is necessary to preserve an issue for appeal, absent
fundamental error.”). Accordingly, we affirm the trial court’s valuations of
items 4, 5, 11, 12, 14, 21, 24, 25, 26, and 27.
Conclusion
Because the trial court’s order includes restitution for items not related
to Appellant’s convictions, we reverse with respect to those items. The trial
court can only order restitution for the ten pawned items the State
specifically included in its dealing in stolen property charges. Due to
Appellant’s failure to object to the trial court’s valuation of all of the
remaining items, the court’s order is affirmed with respect to the valuation
issue.
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Affirmed in part and Reversed in part.
WARNER and LEVINE, JJ., concur.
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Not final until disposition of timely filed motion for rehearing.
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