2D06-5240 / Malarkey v. State

SUPREME COURT CASES

Laws-info.com » Cases » Florida » Second District Court of Appeal » 2008 » 2D06-5240 / Malarkey v. State

State: Florida

Court: Florida Southern District Court

Docket No: 2D06-5240

Case Date: 02/01/2008

Plaintiff: 2D06-5240 / Malarkey

Defendant: State

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JOHN MICHAEL MALARKEY,                                                                      )
)
Appellant,                                                                                  )
)
v.                                                                                          )   Case No. 2D06-5240
)
STATE OF FLORIDA,                                                                           )
)
Appellee.                                                                                   )
________________________________ )
Opinion filed February 1, 2008.
Appeal from the Circuit Court for Collier
County; Frederick H. Hardt, Judge.
James Marion Moorman, Public
Defender, and Allyn M. Giambalvo,
Assistant Public Defender, Bartow,
for Appellant.
Bill McCollum, Attorney General,
Tallahassee, and Sonya Roebuck
Horbelt, Assistant Attorney General,
Tampa, for Appellee.
STRINGER, Judge.
John Malarkey appeals from the order of restitution entered against him
after he pleaded no contest to a charge of grand theft.   Because the trial court
improperly awarded restitution for items not related to the theft with which Malarkey was

charged, we reverse and remand for a new restitution hearing.   This resolution renders
Malarkey's other issues moot.
Malarkey was employed by Premier Electric of Naples as a supervisor
dealing with low voltage products.   After Premier discovered certain inventory missing, it
fired Malarkey.   Subsequently, on October 5, 2005, an arrest warrant was issued for
Malarkey arising out of the alleged theft of property from Premier.   The affidavit
supporting the warrant listed the specific property that Malarkey was accused of taking
and detailed the efforts to recover the missing property.   The warrant for Malarkey's
arrest was based on the following list of property:
Item                                                                                          Disposition
Rotel surround sound receiver                                                                 returned to Premier
3 50" HDTVs                                                                                   one returned to Premier
                                                                                              one sold by Malarkey for $2600
                                                                                              one unaccounted for
wireless control panel                                                                        returned
Monster power converter                                                                       returned
2 remote controls                                                                             returned
Harris phone tester                                                                           returned
miscellaneous electronic cables                                                               returned
2 speakers                                                                                    returned
DVD player                                                                                    returned
Audiosource 2-channel amplifier                                                               returned
Video Quest DVR                                                                               returned
Sony CD/DVD player                                                                            returned
surround sound speakers                                                                       returned
Malarkey was subsequently arrested on the warrant.   On November 3, 2005, the State
filed its information charging Malarkey with grand theft based on the information in the
warrant affidavit.
After initially entering a plea of not guilty to the grand theft charge,
Malarkey subsequently entered into a negotiated plea agreement with the State.   In that
- 2 -

agreement, Malarkey agreed to plead no contest to the charge in exchange for an
agreed sentence of probation and a withhold of adjudication.   Malarkey also agreed to
pay restitution in an amount to be determined by the court if he and the State could not
agree on an amount.   The State referred the court to the "discovery materials" as its
support for the factual basis for the plea.   After a thorough plea colloquy, the trial court
accepted Malarkey's plea and sentenced him in accordance with the plea agreement.
The trial court also reserved jurisdiction to consider the issue of restitution.
When Malarkey and the State could not agree on the amount of
restitution, the trial court scheduled a hearing on the matter.   At the start of that hearing,
the State brought forth what it termed "State's Composite Exhibit 1," which the State
represented to be additional discovery materials.   Malarkey objected to the use of these
materials at the hearing, noting that these materials had been produced to the defense
only five days before the restitution hearing and that "the State [was] seeking restitution
for something that was not included in the original discovery information."   The trial court
overruled Malarkey's objection.   Subsequently, when the State attempted to use the
new materials, Malarkey renewed his objection, arguing that the new information
contained in these discovery materials "was not a part of the original case."   The trial
court again overruled the objection.
The State then presented evidence that established that after Malarkey
left Premier's employ, Premier was unable to locate a car audio receiver, a Hitachi DVD
camcorder, some cabling, and a speaker.   The evidence also showed that Premier had
learned that Malarkey did a "side job" for one of Premier's customers and had not
turned over the payment to Premier.   Finally, the State established that Malarkey had
- 3 -

ordered a 61" HDTV for a Premier customer, that the customer had canceled the order,
and that Malarkey had sold the TV for cash to another employee.   Malarkey allegedly
kept the cash from this transaction.
At the conclusion of the hearing, the trial court entered a restitution order
in the amount of $9001.76.   This amount was based solely on the evidence contained in
the new discovery materials presented by the State at the restitution hearing.   Malarkey
now appeals the restitution order, arguing that the trial court erred by awarding
restitution for items that were not related to the theft charged in the information.   We
agree.
Section 775.089(1)(a), Florida Statutes (2005), provides that the court
may order a defendant to make restitution to a 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.
The supreme court has held that before the trial court may award restitution under this
statute, it must find that the loss or damage is causally connected to the offense and
bears a significant relationship to it.   Glaubius v. State, 688 So. 2d 913, 915 (Fla. 1997);
State v. Williams, 520 So. 2d 276, 277 (Fla. 1988).   To be causally connected to an
offense, the restitution awarded must arise out of the offense with which the defendant
is actually charged.   See, e.g., Bernard v. State, 859 So. 2d 560, 562 (Fla. 5th DCA
2003).   Further, 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 set forth
by the State when the plea is entered.   See, e.g., Avery v. State, 838 So. 2d 1247 (Fla.
- 4 -

2d DCA 2003); Noland v. State, 734 So. 2d 464, 466 (Fla. 5th DCA 1999); Stewart v.
State, 629 So. 2d 982, 983 (Fla. 5th DCA 1993).
For example, in Avery, Avery was charged with grand theft arising out of
the theft of cash payments made to Avery by his employer's customers.   838 So. 2d at
1247.   While the information charged only that Avery had stolen cash, the arrest warrant
indicated that he had stolen $758 in cash.   Id. at 1248.   Avery pleaded guilty to the
charge, and the factual basis for the plea made at the change of plea hearing was that
Avery had stolen $758.   Id.   Avery agreed to pay restitution as part of his plea.
At the restitution hearing, Avery's employer testified that Avery had
previously paid back the $758.   Id. at 1247.   However, Avery's employer had
subsequently discovered that an additional $1311.06 was missing.   Id.   The employer
confronted Avery, who admitted to taking the additional money.   Avery reimbursed his
employer $50 of this amount, but nothing more.   Avery's employer also testified to
expending $563 in investigative costs.   At the conclusion of the restitution hearing, the
trial court awarded $1824.06, which was the $1311.06 less $50 testified to at the
restitution hearing, plus the $563 in investigative costs.   Id.
On appeal, Avery contended that the additional $1311.06 should not have
been included in the restitution order because it was not part of the original charge
against him.   This court agreed, noting that when Avery entered his plea and agreed to
restitution, the charge against him was the theft of $728.   Id. at 1248.   The additional
$1311.06 was "a separate offense for which Avery has not been charged and which
cannot affect the calculation of restitution here."   Id.   Thus, this court reversed and
remanded for a new restitution hearing.
- 5 -

Similarly, in Noland, Noland was charged with grand theft and dealing in
stolen property.                                                                                  734 So. 2d at 465.   The information charging the theft alleged that
Noland had stolen a VCR and/or video tapes.   Noland pleaded no contest and agreed to
pay restitution.   At a subsequent restitution hearing, the victim testified that a grill, a
refrigerator, the VCR, and the video tapes were all stolen at the same time.   He testified
that he did not notice that the grill and the refrigerator were missing until after the police
left.   Id. at 465-66.   The trial court's restitution order included amounts for the grill and
the refrigerator.   Id. at 466.
On appeal, the Fifth District held that because the theft of the grill and the
refrigerator was not discovered and/or reported to the State before the information was
filed, those items were not encompassed by the charge contained in the information.   Id.
Thus, because restitution could not be ordered for items not within the scope of the
original criminal prosecution, the court reversed the restitution award and remanded for
a new hearing.
This case is factually quite similar to Avery and Noland.   In this case, the
information filed by the State alleged that Malarkey stole "money or property" from
Premier Electric.   It did not include a listing of any specific items.   However, the arrest
warrant listed the specific property Malarkey was accused of taking.   Neither the arrest
warrant nor the State's original discovery materials referenced the car audio receiver,
the Hitachi DVD camcorder, the cabling, the speaker, and the side job for which the
State subsequently sought restitution.   Because these items were neither discovered by
Premier nor reported to the State before the information was filed, those items were not
encompassed within the original charge against Malarkey, and the theft of those items
- 6 -

constitutes a separate offense with which Malarkey has not been charged.   As such,
any restitution ordered for these items is not causally connected to the offense with
which Malarkey was charged.   Further, because these items were not encompassed by
the State's original charge against Malarkey, he did not agree by virtue of his plea to
pay restitution for these items.   Accordingly, these items should not have factored into
the calculation of restitution in this case.
Because the trial court's order awards restitution for property not included
in the charge against Malarkey, we reverse the order and remand for further
proceedings.   On remand, the State may seek an order of restitution for only that
property encompassed within the original charge against Malarkey as reflected by the
affidavit supporting the arrest warrant and the discovery materials referenced by the
State at the change of plea hearing.
Reversed and remanded.
ALTENBERND and DAVIS, JJ., Concur.
- 7 -

Download 2D06-5240.pdf