         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D17-3240
                 _____________________________

MARK ANTHONY TOLBERT,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________

On appeal from the Circuit Court for Duval County.
Angela M. Cox, Judge.

                         April 22, 2019

WINOKUR, J.

     Mark Anthony Tolbert appeals a restitution order. Tolbert
argues that the trial court abused its discretion in ordering him
to pay the victim the outstanding balance owed on a loan used to
finance the purchase of the vehicle he destroyed. We find that the
proper measurement of restitution here was the vehicle’s fair
market value at the time of the crime. As a result, we reverse.

                                I.

     In April 2016, Tolbert was charged with aggravated fleeing
and eluding of a law enforcement officer and driving under the
influence causing property damage. Tolbert crashed a 2013
Toyota Yaris, owned by his ex-girlfriend Ms. Schoenfeld, into a
ditch. The vehicle was totaled.
     In May 2016, Tolbert entered a negotiated plea, which
included a reservation of jurisdiction in order to determine the
amount of restitution. During the restitution hearing, Schoenfeld
testified that she purchased the vehicle three years before the
incident for approximately $14,000. Schoenfeld claimed that the
vehicle was purchased used, in fair condition, and with no
structural damage. She also testified that she financed the
vehicle’s purchase through a bank loan. After the incident,
Schoenfeld owed the bank $14,694.60 in order to pay off the loan.
Schoenfeld’s insurance company paid a portion of the payoff
amount, with Schoenfeld owing the bank an outstanding balance
of $11,892.76.

     For his part, Tolbert presented the expert testimony of
Hunter Livingston, the owner of a local car dealership.
Livingston estimated the value of the vehicle at $5,850.
Livingston also consulted the Kelley Blue Book, a consumer
vehicle purchase guide, and estimated the retail value of a 2013
Toyota Yaris at approximately $8,000. Livingston opined that the
fair market value of Schoenfeld’s vehicle was approximately
$6,100.

    At the close of the hearing, the State argued that Tolbert
owed Schoenfeld the balance owed on the bank loan. In contrast,
defense counsel argued that Tolbert simply owed the fair market
value of the vehicle. The trial court then entered a restitution
order in the amount of Schoenfeld’s outstanding loan balance,
$11,892.76.

                                II.

     Florida law provides for restitution to a victim for damage or
loss caused directly or indirectly by the defendant’s offense, and
for damage or loss related to the defendant’s criminal episode.
§ 775.089(1)(a), Fla. Stat. The State has the burden of proving
the amount of restitution owed by a preponderance of the
evidence. § 775.089(7), Fla. Stat. The amount of restitution
ordered must be supported by competent, substantial evidence.
D.J.R. v. State, 139 So. 3d 458, 459 (Fla. 1st DCA 2014).
Typically, fair market value is the appropriate measure of
restitution. State v. Hawthorne, 573 So. 2d 330, 333 (Fla. 1991).

                                2
    While intended to make the victim whole, “restitution is not
intended to provide a victim with a windfall.” Rodriguez v. State,
956 So. 2d 1226, 1232 (Fla. 4th DCA 2007) (citing Glaubius v.
State, 688 So. 2d 913, 916 (Fla. 1997)). Therefore, restitution may
not exceed the damage caused by the defendant’s criminal
conduct. D.J.R., 139 So. 3d at 459.

                                III.

     A restitution order is reviewed for abuse of discretion. Id.
First, the State argues that the trial court did not abuse its
discretion because there was competent, substantial evidence to
support the trial court’s restitution order. The State relies on its
introduction of documentation verifying the remaining balance
owed on the loan, Schoenfeld’s testimony of the approximate
purchase price of the vehicle, as well as the condition of the
vehicle at the time it was destroyed by Tolbert.

     Notwithstanding the credibility and competency of
Schoenfeld’s testimony and the State’s evidence, the State is still
required to show a causal relationship between the conduct and
the restitution. Hawthorne, 573 So. 2d at 333; L.A.D. v. State, 616
So. 2d 106, 108 (Fla. 1st DCA 1993). The record shows that the
State did not meet this burden.

     Schoenfeld entered into a loan agreement to finance the
purchase of the automobile. Schoenfeld’s insurance provider
made a partial payment to the bank, but a balance remained. The
State, however, did not present evidence connecting the balance
owed to Tolbert’s criminal conduct. Schoenfeld’s loan pre-dated
the incident and reflected the money owed to the bank in
exchange for the purchase of the vehicle. Even if Tolbert had not
destroyed the vehicle, Schoenfeld would still be obligated to pay
off the loan. Therefore, the State cannot prove that, “but for”
Tolbert’s conduct, Schoenfeld would not owe $11,892.76.

    Second, the State asserts that fair market value is not the
only standard for ascertaining restitution. It is true that “a court
is not tied to fair market value as the sole standard for
determining restitution amounts.” Hawthorne, 573 So. 2d at 333.

                                 3
Deviations from fair market value, however, have been
recognized in limited circumstances, such as the “theft of a family
heirloom, a new automobile, or an older car that had been
repaired shortly before the theft.” Davis v. State, 244 So. 3d 374,
377 (Fla. 4th DCA 2018). The common thread of these exceptions
is that the value of the stolen property itself consists of more than
just its fair market value.

    This case does not trigger these exceptions. The loan balance
owed is the remaining amount of the purchase price covered by
the bank in order to finance Schoenfeld’s purchase of the vehicle.
The State failed to show that the money owed on the bank loan
made the vehicle worth more than just its fair market value.
Thus, it was improper for the trial court to order restitution in
excess of that value.

                                IV.

    Restitution is designed to compensate a victim for a loss
incurred as a result of a defendant’s criminal conduct. The task of
making of victim whole, however, is constrained by the legal
requirements that a victim not receive a windfall and that a
defendant not pay in excess of the damage he caused. While it
may seem unfair that Schoenfeld owes money on a vehicle she no
longer possesses, the balance is a product of Schoenfeld’s
financial decision. Tolbert’s responsibility lies as far as his
damage to the vehicle. In this case, that amount is reflected by
the vehicle’s fair market value. Accordingly, we reverse and
remand for restitution proceedings consistent with this opinion.

    REVERSED and REMANDED.

WINSOR, J., concurs with opinion; MAKAR, J., dissents with
opinion.
               _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


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WINSOR, J., concurring.

     This case is about the value of the loss. Courts have
discretion in how they award restitution, but all awards remain
limited by statute, and “[u]nder the plain language of the statute,
the loss or damage to be compensated must be ‘directly or
indirectly’ related to the offense.” Glaubius v. State, 688 So. 2d
913, 915 (Fla. 1997) (referencing § 775.089(1)(a)). Therefore,
although the court announced in State v. Hawthorne that trial
courts must consider compensation, rehabilitation, deterrence,
and so forth, “[t]his does not mean [] that a trial court can
arbitrarily award any amount of restitution it deems adequate.”
Glaubius, 688 So. 2d at 915 (citing State v. Hawthorne, 573 So. 2d
330 (Fla. 1991)). Instead, the court must focus on the loss. The
question in this case, then, is whether the unsecured portion of a
car loan constitutes “damage or loss” the defendant caused. I
conclude that it does not, and I join the court’s opinion.

     In State v. Williams, the Florida Supreme Court noted that
section 775.089(1)(a)’s “directly or indirectly” limitation precluded
restitution for damages that “would have occurred with or
without” the offense. 520 So. 2d 276, 277 (Fla. 1988) (“Section
775.089(1)(a) is not ambiguous.”); accord Glaubius, 668 So. 2d at
915 (explaining that “to order restitution under the statute, the
court must find that the loss or damage is causally connected to
the offense”). Here, to the extent a preexisting, outstanding loan
balance is properly considered “damage or loss,” it is damage or
loss that “would have occurred with or without” Tolbert’s crime.

     Relying principally on dicta in a Hawthorne footnote about
new-car depreciation, the dissent does include the loan balance as
part of the “damage or loss.” But the Hawthorne footnote attaches
to the court’s discussion about calculating depreciation, which of
course goes to the car’s value. 573 So. 2d at 333 & n.5. Here,
there is no real dispute about the car’s value. Regardless, it is one
thing to suggest that someone causes a $20,000 loss when they
steal a car bought minutes earlier for $20,000. It is quite another
to say someone who steals a $6,000 car causes not only the loss of
the car, but is also responsible for any loan balance—so long as
the loan was partially secured by the car. Cf. Lewis v. State, 238
P.3d 833 (Nev. 2008) (reversing $5,200 restitution award that

                                 5
“included the $4,500 loan balance paid by the victim’s insurance
company and the $700 paid by the victim to reacquire the car”
because there was insufficient evidence that the car was worth
$5,200).

     Hawthorne observed “that in most instances the victim’s loss
and the fair market value of the property at the time of the
offense will be the same.” 573 So. 2d at 333; accord Mansingh v.
State, 588 So. 2d 636, 638 (Fla. 1st DCA 1991). This is one of
those instances. There is nothing particularly unique about
having a partially secured car loan. And if the victim lost a
$6,000 car and got $6,000 in restitution, she could acquire
another $6,000 car. 1 That would leave the victim just where she
began: with a $6,000 car and a $12,000 loan. In other words, the
restitution award would cover her “damage or loss.” If, on the
other hand, the victim got the value of her car plus the unsecured
portion of her loan (roughly $12,000) and bought a $6,000 car, she
would come out $6,000 ahead. This would result in a windfall,
and as the majority opinion notes, restitution awards are not
supposed to do that. 2 Glaubius, 688 So. 2d at 916 (noting that


    1 This is all theoretical because, as the dissent notes, victims
often do not receive the restitution courts order. And even if a
restitution award is promptly paid, it cannot always cure the
serious, noneconomic burdens the victim has suffered (and will
suffer). Here, even if the victim received a perfectly comparable
car immediately, she still would have suffered great harm in
going through this whole ordeal. But the legal issue in this case is
the value of the loss the appellant caused, which the Florida
Supreme Court has held is ordinarily “the fair market value of
the property at the time of the offense.” Hawthorne, 573 So. 2d at
333.
    2  Incidentally, if we were to go down the road of allowing
windfalls in this way, we should consider some limiting principle.
What if a victim owed $50,000 on an $8,000 car? Retail car loans
often fold in earlier car loans, meaning borrowers frequently owe
far more than their cars’ values. See Federal Trade Commission,
Consumer Information, Auto Trade-ins and Negative Equity,
available at https://www.consumer.ftc.gov/articles/0257-auto-
trade-ins-and-negative-equity (explaining negative-equity car
                                 6
requiring a defendant to pay more than “damages his criminal
conduct caused” “would raise significant due process concerns
regard the validity of section 775.089”). I concur.

MAKAR, J., dissenting.

     This restitution case involves an upside-down Yaris. During
his high-speed attempt to elude police officers, an inebriated
Mark Anthony Tolbert drove at times in excess of 100 mph, ran
stoplights and stop signs, and nearly collided with roadside
objects. It didn’t end well: Tolbert crashed the pilfered 2013
Toyota Yaris in a ditch, rendering the vehicle a total loss. He was
charged with and pled guilty to two charges: aggravated fleeing
and eluding of a law enforcement officer and driving under the
influence causing property damage.

     Tolbert had taken the vehicle from the victim, an ex-
girlfriend who—at about the time of the incident in early 2016—
owed a balance of $14,694.60 on her auto loan with Santander
Bank. The loan was upside-down because the amount due
exceeded the street value of the Yaris. At the time of the
restitution hearing, the balance due was reduced to $11,892.76,
which reflected various adjustments for insurance proceeds that
had been paid. The victim had agreed to the loan’s high interest
rate (14%), which she characterized as “high robbery,” because
she needed a car and had poor credit at the time (she had since
paid on the loan for about two and one-half years). The State
sought, as restitution, the current balance then due. Tolbert’s
expert testified that the Yaris, which was a standard model with
no frills and assumed to be in “good” condition at the time of the
crash, was worth about $6,100 wholesale and $8,000 retail.

     The State argued that Tolbert’s criminal escapade caused
the victim to lose the entire value and the use of her vehicle, and
that because the purpose of restitution is to make her whole, the
trial judge should award the remaining balance due on the auto

loans). What if a victim had an unsecured loan—say, from a
family member—but used the funds to buy the car? What if a
victim folded her car loan and other consumer debt into a home
equity loan?

                                7
loan. Tolbert argued that the victim was only entitled to market
value, which its expert said was much lower, in part, because the
victim—not Tolbert—had “made a very bad deal” in accepting a
high interest rate. The State countered that due to Tolbert’s
actions not only was the victim without a means of transportation
but that she “is still having to pay for a vehicle she no longer
has.”

     In deciding what to do, the trial judge noted that restitution
“is an opportunity to make amends and to make the victim of a
crime whole, at least to the extent it is possible to do so.” As to
this case, she ruled that “the criminal conduct of the defendant
caused the victim to have her car totalled” and that “requiring
the defendant to pay $11,892.76 is not in excess of the damage he
caused.”

     On appeal, Tolbert says the victim was entitled only to a fair
market valuation of the vehicle, which is the general, but not
exclusive, measure for assessing a victim’s losses. Florida’s
restitution jurisprudence is flexible and allows for departures
from a strictly fair market value approach if the goals of criminal
justice or the equities in a case are better served by fully
compensating the victim via another methodology. As our
supreme court said in Spivey v. State, 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.” 531 So. 2d 965, 967 (Fla. 1988). Relying on
Spivey, the supreme court in State v. Hawthorne emphasized that
although “in most instances the victim's loss and the fair market
value of the property at the time of the offense will be the same”
it could “foresee instances when the market value of the property
would not adequately reflect the victim's loss or when the
consideration of the percentage of depreciation would be
inequitable.” 573 So. 2d 330, 333 (Fla. 1991) (footnotes omitted).
Relying on Hawthorne, the supreme court emphasized that a
“trial court has discretion to take into account any appropriate
factor in arriving at a fair amount which will adequately
compensate a victim for his or her loss and further the purposes
of restitution.” Glaubius v. State, 688 So. 2d 913, 915 (Fla. 1997)
(emphasis added). Far from dicta, our supreme court established
that discretion exists for establishing a “fair amount” apart from

                                8
fair market value, and has repeatedly said the “trial court is in
the best position to determine how imposing restitution may best
serve [the goals of rehabilitation, deterrence, and retribution] in
each case.” Id.

     One of its examples from Hawthorne involved a new
automobile that is stolen immediately after its purchase. 573 So.
2d at 333 n.5. Because a new vehicle “depreciates considerably as
soon as the purchaser drives it off the lot,” restitution based on
traditional fair market value would lead to an “inequitable
result” and thereby “not serve the restitution statute's purpose of
compensating the victim for the loss sustained as a result of the
offense.” Id. In these situations, a trial 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.” Id. at 333 (emphasis added).
In other words, a trial court is within its discretion in assessing
restitution by considering the overall impact of an offender’s
criminal episode versus a strictly market-based approach. See §
775.089 (1)(a), Fla. Stat. (2019) (trial 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.”) (emphasis added). Both Spivey and Hawthorne
emphasized that the “trial court is best able to determine how
imposing restitution may best serve those goals in each case.”
Hawthorne, 573 So. 2d at 333 (quoting Spivey) (emphasis added).

     The takeaway is that trial courts have discretion to depart
from fair market valuations where the circumstances warrant
doing so, tempered by judicially-imposed limitations. In this
regard, this Court long ago held that “absent circumstances
tending to show that [fair market value] does not adequately
compensate the victim or otherwise serve the purpose of
restitution, such as theft of a family heirloom or a new
automobile, . . . or theft of an older car that had been repaired
shortly before the theft, as was the case in Hawthorne, the
amount of restitution should be established through evidence of
[fair market value] at the time of the theft.” Mansingh v. State,
588 So. 2d 636, 638 (Fla. 1st DCA 1991) (citation omitted).

                                 9
Similarly, in Dickens v. State, which involved a stolen Chevrolet
that was driven into and found at the bottom of a bay, the Second
District upheld a restitution award of $1,900 reflecting the
purchase price of the vehicle, the cost of repairs and
improvements during ownership, and the cost of removing the car
from the bay. 556 So. 2d 782, 783 (Fla. 2d DCA 1990). In doing so,
the Second District distinguished and rejected application of the
“rigidities of proof” used in determining market value as an
element of a crime when restitution awards are determined. Id.
at 784. A more flexible standard is appropriate because
“[l]imiting the trial court's discretion to a determination of the
fair market value of the property involved at the time of the
crime does not further its ability to serve the goals of the
restitution program.” Id. Notably, the supreme court in
Hawthorne “approve[d] the reasoning of the district court in
Dickens,” rejecting this Court’s more restrictive approach at that
time. Hawthorne, 573 So. 2d at 333.

     Here, the victim lost the entire value and use of her car and
she still owed a substantial amount on the car loan; presumably
she has borne the expense of the loan plus the personal and
financial burden of alternative transportation (unlike the victim
in Hawthorne, the victim here did not seek the latter expenses).
573 So. 2d at 331. Tolbert says the loan’s terms are the victim’s
fault and that he shouldn’t bear any responsibility for her bad
business decision; it would be inequitable for him to shoulder her
loss. But didn’t our supreme court in Hawthorne say it would be
inequitable to not provide restitution for the rapid depreciation of
a newly-purchased car? Why would buying a new car, that
everyone knows depreciates instantly, be any less of a bad
business decision than buying a used one at a higher interest
rate? Why make offenders pay an amount exceeding fair market
value in a new car case but not in a used/underwater car case?
And shouldn’t the amount of full restitution be considered in
some cases from the victim’s financial perspective or
predicament? Suppose Tolbert wanted to use the victim’s car,
said that he would probably crash and total it in a Demolition
Derby show that night, and asked what amount he could pay her
so that she would be made whole? She’d probably tell him to pay
off her loan, provide her with an equivalent car immediately, or
the like. Why is fair market value the only legitimate barometer

                                10
of restitution in such a case? Why not a measure more closely
approximating the value from the victim’s perspective? Granted,
restitution is not designed to provide a windfall to victims, but
there is no evidence that the victim here entered the car loan
with the expectation that if the Yaris was stolen and destroyed
that she’d somehow benefit financially; far from it. Presumably
she’d pay off the outstanding car loan and start anew, though she
is not required to do so; theoretically, an exact replica of her
Yaris might be available at the lowest estimate of fair market
value, but how would purchasing it, months or years later
when—if ever—Tolbert actually pays restitution, account for the
loss of use and continued payment on the loan in the interim? On
the flip side, suppose that Tolbert knew he’d only be responsible
in restitution for $6,100 for his criminal escapade but that it
would cause far more economic injury to the victim/former
girlfriend. Why should he not be accountable for the greater loss?

     All this said, the trial judge was on the right track to make
the victim whole, and her decision to use the $11,892.76 loan
amount as the basis for doing so does not jump out as an abuse of
discretion on this record, i.e., not arbitrary, fanciful, or
unreasonable. Spivey, 531 So. 2d at 967. If some adjustment is
not allowed for victims with upside-down car loans, then full
restitution becomes somewhat illusory and would be regressive in
its impact on those struggling economically. The trial judge did
not err in following what the electorate has now
constitutionalized as the right of victims “to full and timely
restitution in every case and from each convicted offender for all
losses suffered, both directly and indirectly, by the victim as a
result of the criminal conduct.” Art. I, § 16(B)(9), Fla. Const.
(2019) (emphasis added).

                 _____________________________


Andy Thomas, Public Defender, and Justin F. Karpf, Assistant
Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Julian E. Markham,
Assistant Attorney General, Tallahassee, for Appellee.


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