07-0230 STATE OF FLORIDA v. WYON DALE CHILDERS

SUPREME COURT CASES

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State: Florida

Court: Florida First District Court

Docket No: 07-0230

Case Date: 04/23/2008

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA STATE OF FLORIDA, Appellant, v. WYON DALE CHILDERS, Appellee. _____________________________/ Opinion filed April 23, 2008. An appeal from the circuit court for Escambia County. Jere Tolton, Judge. Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee; John F. Simon, Jr., Assistant State Attorney, Pensacola, for Appellant. Richard G. Lubin and Tama Beth Kudman, West Palm Beach, for Appellee. NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 1D07-0230

WEBSTER, J. The state seeks review of an order denying restitution for losses it claims were "directly caused" as the result of appellee's bribing a fellow county commissioner so that appellee might obtain a majority vote to purchase a 48-acre parcel of real property known as the soccer complex. The state's sole argument is that the trial court's order is not supported by competent substantial evidence and that, therefore, the order constitutes an abuse of discretion. Having carefully reviewed the record, we conclude

that the trial court's order is amply supported by the evidence and, therefore, does not constitute an abuse of discretion. Accordingly, we affirm. Following a jury trial, appellee, an Escambia County Commissioner, was convicted of bribery and unlawful compensation or reward for official behavior in connection with a scheme to have the Escambia County Commission purchase the soccer complex property. We subsequently affirmed those convictions; reversed the trial court's ruling that the county was not a "victim" for purposes of section 775.089, Florida Statutes (2002), and as a result was not entitled to restitution; and remanded so that the state might have an opportunity to prove that the county had suffered a loss as the result of appellee's crimes, and the amount of any such loss. Childers v. State, 936 So. 2d 585 (Fla. 1st DCA) (en banc), review denied, 939 So. 2d 1057 (Fla. 2006). On remand, the trial court held a restitution hearing, at which considerable testimony was presented and evidence offered. The state contended that, as the victim, Escambia County was entitled to restitution consisting of the difference between what the county had paid for the property and what it received when it sold the property ($1,090,706.50), plus costs attributable to maintaining the property and having it appraised ($33,524.02). Appellee countered that the property was sold for less than its fair market value and that, had it instead been sold for what it was worth, the county would have netted a profit rather than a loss. Both the state and appellee 2

presented testimony from real property appraisers regarding the value of the soccer complex property. As anybody who has had any appreciable exposure to eminent domain proceedings knows, real property appraisal is an art, not a science. In eminent domain proceedings, the differences in value asserted are frequently great, and the outcome usually turns on which of two or more property appraisers the jury finds to be more credible. This is precisely what occurred in this case. The state presented the appraiser who had appraised the property when the county decided to sell it. He testified that, in his opinion, the property was worth only $2,450,000. Based on that appraisal, the county had sold the land for $2,925,000. Appellee's appraiser, on the other hand, testified that, in his opinion, the county's appraiser's valuation was low. He believed that, had the county been patient, it could have sold the property for much more--perhaps as much as $7,000,000. The trial court subsequently denied the request for restitution, concluding that any loss sustained by the county had not been "caused by [appellee's] criminal activities" but, rather, that "the more persuasive evidence is [that] the [c]ounty did not take advantage of traditionally accepted measures to get the highest bid on resale. If it had done so, the evidence indicates it very likely could have made a profit, perhaps a substantial one, on the conveyance." This appeal follows. For purposes of restitution, the burden rests with the state to prove the amount 3

of the victim's loss by the greater weight of the evidence.

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