5D07-204 Donna Schneider v. State

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D07-204

Case Date: 01/21/2008

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2008

DONNA SCHNEIDER, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed January 25, 2008 Appeal from the Circuit Court for Marion County, David B. Eddy, Judge. James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant. Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellee. Case No. 5D07-204

GRIFFIN, J. Appellant, Donna Schneider [ "Appellant"] appeals an order of the lower court awarding $8,100.00 in restitution. We reverse. Appellant was charged by amended information with organized fraud for stealing from her employer, Dr. Robert Kitos. Appellant entered into a best interest plea and was sentenced to one year of community control, followed by four years of probation. Appellant was also ordered to pay $8,100.00 in restitution for professional services

incurred by Dr. Kitos and his wife, Melinda Kitos, to defend a pretrial defense discovery request for their 2001 and 2002 tax returns. Prior to entering into the plea, Appellant had filed a motion for discovery and a subpoena duces tecum for the personal and business tax records of Dr. and Mrs. Kitos. The motion claimed the tax returns were needed to show that Appellant did not misappropriate the funds and that the Kitoses actually wrote off those funds on their taxes. Because Dr. Kitos wished to protect his privacy and did not want the tax returns discovered, he hired private counsel and moved for a protective order to prevent disclosure of the tax records. At a hearing on the motion, the trial court ruled that form 4684 of the tax return for the tax year 2001 and the schedule C from both the 2001 and 2002 returns were discoverable, but the remaining portions of the returns were not discoverable. At the restitution hearing, the State requested an award of the legal and accounting fees incurred by Dr. Kitos in prosecuting the protective order motion. The

State argued that the fees were causally connected to the offense and that the costs were an indirect result of Appellant's crime. Appellant argued that the decision to hire private counsel was Dr. and Mrs. Kitoses' and was not brought about by Appellant's criminal conduct but b y their own election to incur fees to protect their privacy. The trial court ruled that the legal expenses incurred by the Kitoses were causally related to Appellant's organized fraud offense. We agree with Appellant that these expenses were not caused either directly or indirectly by the offense and reverse. Section 775.089(1)(a), Florida Statutes (2006), provides that: In addition to any punishment, the court shall order the defendant to make restitution to the victim for:

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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. Restitution may be monetary or nonmonetary restitution. The term "victim" as used in this statute means "each person who suffers property damages or loss, monetary expense, or physical injury or death as a direct or indirect result of the defendant's offense or criminal episode . . . . "

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