Livingston v. State

311 So.3d 331

Stanley Dean LIVINGSTON, Appellant,

v.STATE of Florida, Appellee.

Case No. 2D20-65

District Court of Appeal of Florida, Second District.

Opinion filed February 3, 2021

Howard L. Dimmig, II, Public Defender, and Frederick W. Vollrath, Special Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, for Appellee.

KHOUZAM, C.J.

Stanley Dean Livingston appeals his convictions and sentences for grand theft (over $100,000) and unlawful filing of false documents against real property. We affirm in all respects. But we write to explain why we reject Mr. Livingston's contention that a criminal restitution award that includes attorney's fees is subject to the requirements set forth in Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985), for determining reasonable attorney's fees.

As part of a deal with the U.S. Department of Veterans Affairs, Mr. Livingston was to receive a brand new, fully furnished home "100 percent government fully financed." Under the deal, Mr. Livingston also had no down payment or closing costs and, consequently, was not required to "come out of pocket one single dime" in order to buy the house. Nonetheless, he decided to steal it.

At the closing, attendees suspected something was wrong because Mr. Livingston was acting nervous, making strange requests, and refusing to follow various standard procedures. Their suspicions were proven prescient when, as the notary's back was turned, Mr. Livingston abruptly grabbed the original deed and promissory note, sprinted out the front door, and drove away. A few days later, Mr. Livingston recorded the stolen deed, which now bore additional handwriting stating—falsely—that he had accepted it in return for lawful and valuable consideration.

After learning that the closing had fallen through, the seller tried to show the home to another potential buyer. But upon arrival, they could not gain entry. Mr. Livingston had taken possession of the home, changed the locks, and posted handwritten signs stating the property was under new management.

Based on this conduct, Mr. Livingston went to trial on charges of grand theft (over $100,000) and unlawful filing of false documents against real property, and a jury found him guilty on both counts. Thereafter, a restitution hearing was held at which the State adduced evidence of the losses caused by Mr. Livingston's criminal conduct. In particular, an attorney for the seller testified that Mr. Livingston's recording of the deed had prevented the seller from being able to sell the home due to a cloud on the title. In order to clear the title, the attorney had needed to litigate a quiet title action, which she had won at summary judgment. The attorney testified to the nature and amount of the work required to clear the title, including the amount of attorney's fees actually incurred. The State also introduced documentation reflecting the legal services performed and their value. Ultimately the trial court ordered Mr. Livingston to pay $18,666.50 in restitution, representing the attorney's fees actually expended in clearing the title on the real property.

On appeal, Mr. Livingston contends, and the State mistakenly concedes, that because the restitution award represents monies spent on attorney's fees, the trial court was required to make findings regarding reasonable attorney rates and time as set forth in Rowe. But the parties have failed to identify, and we have been unable to locate, any authority for the proposition that Rowe findings are required to support a criminal restitution award. Accordingly, we reject the State's concession¹ and clarify that Rowe does not govern criminal restitution awards.

In Rowe, the Florida Supreme Court considered the constitutionality of a statute "direct[ing] the trial court to award a ‘reasonable attorney's fee’ to the prevailing party in a medical malpractice action." 472 So. 2d at 1146 (quoting § 768.56, Fla. Stat. (1981) ). In doing so, it expressly adopted "the federal lodestar approach for computing reasonable attorney fees." Id. As part of that approach, "the trial court must set forth specific findings" regarding "the hourly rate, the number of hours reasonably expended, and the appropriateness of the reduction or enhancement factors." Id. at 1151.

During the intervening decades since Rowe was decided, its holding has been modified. See, e.g., Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828, 833 (Fla. 1990) (reaffirming Rowe "concerning the lodestar approach as the basic starting point" but holding "that the use of the contingency fee multiplier should be modified"). Nonetheless, the requirement of making specific findings as to the " Rowe factors" in determining a reasonable attorney's fee has survived and remains fully intact. See, e.g., Joyce v. Federated Nat'l Ins. Co., 228 So. 3d 1122, 1126 (Fla. 2017) (reiterating the requirement); Jacobs v. Jacques, 310 So.3d 1018 (Fla. 2d DCA Aug. 12, 2020) (reversing attorney's fees award for failure to make Rowe findings).

However, this requirement has not been applied to a criminal restitution award. See, e.g., Baratta v. Valley Oak Homeowners’ Ass'n at the Vineyards, Inc., 928 So. 2d 495, 497 (Fla. 2d DCA 2006) ("In Rowe, the supreme court adopted the federal lodestar approach for determining a reasonable attorney's fee under a prevailing party attorney's fee statute or contractual provision ." (emphasis added)). And with good reason: the plain language of Florida's restitution statute sets forth a materially different standard. The relevant statutory language provides:

In addition to any punishment, the court shall order the

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