5D04-91 Timothy Koile v. State

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D04-91

Case Date: 01/03/2005

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2004

TIMOTHY THOMAS KOILE, Appellant, v. STATE OF FLORIDA, Appellee. ___________________________________/ Opinion filed January 7, 2005 Appeal from the Circuit Court for Osceola County, Margaret T. Waller, Judge. James S. Purdy, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee. MONACO, J. After the commencement of his trial for first degree murder, Timothy Koile, the appellant, pled no contest to second degree murder pursuant to a plea bargain in which he agreed to a specific incarcerative sentence, followed by probation, and in which he agreed further to pay restitution in an unstipulated amount. The trial court thereafter presided over a hearing on the amount of restitution to be assessed, and later entered an order requiring Mr. Koile to pay restitution totalling more than $2,000,000. The only issues raised by Mr. Koile on appeal concern the assessment of restitution. We affirm in part, and reverse in part. CASE NO. 5D04-91

I.

Facts. At the restitution hearing the victim's father, Patrick Cousins, testified that he had

incurred a number of expenses, many of which are not contested, that resulted from his son's murder. Among the uncontested expenses, for example, were funeral and burial costs. He also testified, however, that he elected to attend the three-week trial of Mr. Koile, and that as a result, he lost income of about $12,000. He admitted that he only testified at the trial on a single day. The victim's mother, Roseanne Cousins, indicated that she lost $1,500 in wages during the three-week trial period, and likewise related that she only testified on a single day of the trial. She testified, as well, that a wrongful death suit had been brought, and was still pending against Mr. Koile and his co-defendant, who was the wife of the murder victim. In addition, the State also presented evidence on behalf of the victim's estate concerning the loss of future income of the victim. It appears that the victim had been a first officer with Air Jamaica, and was compensated with a salary of $87,988 per year. He was expected to be promoted to captain in the future, at which time he would earn $156,882 per year. There was also testimony presented concerning the airline's mandatory retirement plan and pension contributions. To prove up the lost future earnings of the victim, the State called a certified public accountant, who testified that the victim's future income was $3,322,743, assuming his promotion to captain, and assuming that he worked until age 60. The trial judge took the matter under advisement, and later rendered a written order assessing restitution against Mr. Koile and his co-defendant, jointly and severally. The court awarded the victim's father all of his lost wages for the three week period of the trial, as well as certain other expenses associated with the trial, and awarded the victim's mother all of the 2

$1,500 lost wages that she sought. In addition, the trial judge calculated that the estate of the victim suffered damages or losses in the amount of $2,042,126, which represented the present value of lost future earnings, without engaging in the assumption that the victim would be promoted to captain. The trial judge evidently used the formula testified to by the certified public accountant in order to make this calculation, but made no deductions for living expenses or such things as income taxes that the decedent would have incurred. Mr. Koile timely appealed the restitution order. We address in this appeal the issues of whether it was appropriate to assess as restitution the lost wages of the decedent's parents while attending trial, and the lost future earnings of the decedent. II. Standard of review and burden of proof. We review restitution orders using an abuse of discretion standard. See Ashton v. State, 790 So. 2d 1115, 1117 (Fla. 5th DCA 2001). The burden of proving the amount of restitution is on the State, and the amount must be proved by a preponderence of the evidence. See

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