THE NEXTCASE ON THIS MORNING'S DOC KET IS KOILE VERSUS STATE OFFLORIDA. I WILL SAY WE HAVE ONLY TWO CASES THIS MORNING, AND THE REASON FOR THAT IS THAT THE OTHER TWO CASES INVOLVED ATTORNEYS FROM SOUTH FL ORIDA AND THEY REQU ESTED CONTINUEANCES BECAUSE OF PROBLEMS STILL BEING FA CED DOWN IN SOUTH FLORIDA.

MY NAME IS M R. L UKAS HOW. I REPRESENT MR. COIL. I HAV E TWO QUE ST IONS CONSIDERED BEFORE THIS COURT, THE FIRST BEING WHETHER T HE R ESTITUTION S TATU TE , AUT HORIZES A REW AR D O F LOS T WAGES TO THE NEX T O F KIN , WHO VOLUN TARI LY ATT EN D T HE T RIAL AND T HE S EC ON D QUESTION BEING WHETHER THE SAME S TATUTE A UTHO RI ZE S L OS T FUTURE WAGES TO T HE S TA TE .

SO WE ARE H ERE P UREL Y O N A M ATTER O F S TA TUTO RY CONSTRUCTION?

THAT IS CORRECT , AND T HE WAY THA T T HI S CASE DEV ELOPED BEL OW W AS THAT T HERE W AS A P LE A A GREEMENT, AND P AR T OF T HE PLEA AGREEMENT WAS THA T THE D EFENDANT A GREE D T O T HERE B EING R ES TI TU TION CON NE CTED WITH P ROBA TI ON , AND THA T T HE C OURT WAS T HEN G OI NG TO SET THE A MO UN T O F T HE R ESTITUTION.

THAT I S CORRECT.

OKAY. SO P UR ELY W HAT W AS T HE N LEF T FOR THE TRIAL J UD GE T O D O F OLLOWING THE PLE A AGR EEME NT AND THE ACCEPTANCE OF T HE PLEA WAS TO M AK E A DETERMINATION THAT AS T O WHAT STATUTE A LL OW ED I N T ERMS OF R ES TI TUTION ? > > THAT'S CORRECT.

OKAY. AND YOUR C HALL ENGE AS T O THE STA TE'S C LA IM F OR W AG ES F OR THE LOSS O F WAG ES R EALL Y R EVOLVE S A RO UN D WHE TH ER THE STATUTORY USE OF THE W OR D REIMBURSEMENT I S SOM EH OW H AS AN EFFEC T O N WHA T THE A MOUN T OF RES TITU TI ON FOR L OS T WAGES CAN BE ; AM I U NDERSTANDING YOUR AGREEMENT?

THAT WOULD BE THE T HR US T OF OUR ARGUMENT , T HAT' S CORRECT, YOUR H ONOR. WE WOULD S UBMIT T HA T T HE P RECISE USAGE OF THE WOR D REIMBURSE WAS D EL IB ER ATEL Y CHOSEN BY THE LEGISLATU RE , AND THAT THEY W ER E N OT ANTICIPATING THAT I N A CRIMINAL PROCEED ING T HAT A COURT WOULD ENGAGE IN W HAT WOULD GENERALLY B E A WRO NGFUL DEATH ACTION. WE ARE SUBMITTING THA T T HI S TERM REI MBUR SE O NLY S UB MITS TO PAST WAGES O F A VIC TI M WHO WAS STILL L IV IN G . IN THAT THE --

BUT THERE I S N O RESTRIC TION IN THE STATUTE FOR THAT. I MEAN , I 'M HAV IN G A D IFFICULTY SEEING T HE DIFFERENCE BETWEEN R EIMBURSEMENT O F LOS S O F WAG ES AND C OM PENSAT ION F OR LOSS OF W AG ES WHI CH GENERALLY TAKES I NT O CON SIDERATION THE A MO UN T O F PAST A ND F UT UR E LOS T I NCOM E.

IN SECTION 775 T HE RE I S N O ACK NO WLED GE MENT THAT THERE IS TO BE - - DO ES NOT CON SIDER O R C ONTE MP LATE FUTURE LOSSES. IT DOES IN THE W RONG FU L DEATH STATUTE REFER TO FUTURE LOSSES S EV ERAL T IMES BUT IN T HI S P AR TI CULA R STATUTE WE WERE SUBMITTING THAT L OST WAG ES W HI CH CAN B E EASILY C AL CULA TE D WHE N LOOKED AT IN THE P AS T C AN B E SOMETHING THAT A C RI MINA L TRIAL COURT C OULD DETERMINE WITH R EL ATIVE E ASE.

YOU ARE SAYING THAT IF THERE WAS SOMEB OD Y THA T THE V ICTIM WAS RENDE R ED P ARAPLEGIC AS A RESULT O F THE D EFENDA NT 'S A CTIO N T HA T I T C OULD O NLY - - I T C OU LD ONLY C ONSI DE R P AS T LOS T W AGES , THE Y C OU LDN' T CONSIDER THAT THE PERSO N WOULD NOT BE ABLE TO WORK FOR THE REST OF HIS O R H ER LIFE?

THEY COULD , YOUR HONOR, IF THE V ICTI M W AS STILL A LIVE T HERE WOU LD B E W E BELIEVE THE S TATUTE WOULD ALLOW FOR THAT.

BUT Y OU JUS T S AI D I T O NL Y CONTEMPLATES PAS T L OS S BECAUSE I T SAYS REI MBUR SE .

THAT I S CORRECT . AS FAR AS I F T HE V ICTI M IS STILL A LIVE THE Y WOU LD HAV E OTHER CIVIL REMEDIES.

SO Y OU R A RGUM EN T W OU LD B E , AGAIN, THAT IF S OM EB OD Y W AS RENDERED A PARAPLEGIC T HA T THE RESTITUTION STATU TE ONL Y CONTEMPLATES ANYTHING U P UNTIL THE TIM E O F THE D EFENDANT'S TRIAL A ND D OESN'T, IF THERE IS A CONTINUING LOSS OF IN COM E DOES NOT REQ UI RE THA T THA T B E - - DOES NOT A LL OW T HA T THAT BE INCLUDED.

NOT UNDER T HIS STATUTE, BUT IT W OU LD ALL OW FOR R EIMBURSEMENT OR PAYMENT O F COSTS, WHICH I S AGA IN A DIFFERENT PHR ASEOLOGY FOR THE N ECES SARY MEDIC AL AND RELATED EXPENSES. HOWEVER , A S T O THE S PE CI FI C ISSUE OF A WA RDIN G R ESTITUTION O R LOST W AG ES T O THE EST ATE , W OU LD A RG UE T HAT IT IS NOT CONTE MPLA TED I N THIS STA TUTE A ND M ORE PROPERLY BROUGHT AS A WRONGFUL DEATH A CTIO N W HERE THE COURT HAS MUC H M OR E GUIDANCE. THIS STATUTE IS VERY L IMITED .

BUT U ND ER T HE P OR TION WHERE YOU T ALK A BOUT PAY IN G REA SONABLE MEDICAL AND RELATED PROFESSIONAL SERVICES , I F I N T HE CAS E O F THE P AR APLEGI C LET 'S SAY .

YES.

WOULD T HE D EFEN DA NT B E LIABLE FOR F UT UR E MED IC AL S ERVICES A ND P RO FESS IO NA L SERVICES?

YES .

SO W HY T HE DIS TINC TI ON BETWEEN NUMBER ONE AND NUMBER T HREE ? JUST B AS ED O N T HE W OR D R EIMBURSE?

YES, WE B ELIEVE T HA T WAS DELIBERATELY CHOSEN. IN OTHER WORDS , I T IS N OT - - WE D ON 'T U NDER THE STA TU TE REI MBURSE SOMEONE FOR SOMETHING THAT IS GOING TO OCCUR IN THE FUTURE.WHEN I RETURN TO M Y O FFICE I CAN FILL OUT A FORM T OD AY T O BE REIMBURSE D FOR MY T RAVE L EXPENSES. HOWEVER, IF THE STATE WERE TO FRONT THE MONEY T HE Y WOULD BE PAYIN G I N A DV ANCE MY EXPENSES. I CAN'T B E REI MB UR SE D FOR SOMETHING AHEAD O F TIME.

S O H OW DOE S T HA T SQU AR E WITH THE PART OF THE STA TUTE THAT TALKS A BO UT T HA T DEFINES THE VIC TI M A ND INCLUDES IT A S A VICTI M T HE PERSON 'S E ST AT E I F THA T PERSON IS D ECEASE D F RO M T HI S C RIMINAL ACTIVIT Y ?

W ELL , T HE VIC TI M I S DEFINED AS THE E ST AT E ONL Y IF T HE V ICTI M O F THE O FF ENSE IS DEC EASE D , B UT I T I S T HE NEXT OF KIN I S T HE V ICTI M I F T HE VIC TIM I S D ECEA SE D AS A RESULT OF THE E VE NT . THERE IS A DISTI NCTION. IN OTHER WORDS, THE ESTAT E IS NOT THE VIC TIM WHE RE T HE VICTIM IS DECEASE D AS A RESULT OF THE OFF EN SE . THE STATUTE IS VER Y P LAIN I N S ECTION 4 --

I T S AY S THE E STAT E I F THE VICTIM IS DEC EA SED.

RIGHT. BUT THEN AGA IN WHEN I T DISCUSSES --

BUT DO Y OU MEAN YOU A RE SAYING THAT T HAT SECTION ONLY A LI ES I F THE V ICTI M IS DECEASED B UT NOT D UE T O THE CRIMINA L ACT IV IT Y O F T HE DEFENDANT?

THAT WOULD BE OUR INTERPRETATION.

SO IN THAT SITUATION THEN YOU ARE SAYING THAT THE PERSONAL REPRESENTATIVE WAS THE WRONG PERSON T O B RI NG T HE CLA IM FOR F UTUR E S UO RT , LOSS O F S UP PORT THAT I F T HE CHILDREN HAD BROUGHT IT WOULD HAVE FIT UND ER ANY PARTS OF THIS STATUTE?

NO, YOUR HON OR , S EC TION 4 , S UB4 ONLY ALLOW S T HE NECESSARY FUNERAL AND RELATED SERVICES TO THE NEXT OF KIN. THEY AGAIN WOULD BE ABLE TO BRING A WRONGFU L D EATH ACTION WHICH WE BEL IE VE I S THE A ROPR IATE R EM ED Y I N THIS CASE.

SO I T S EEMS THA T W HOEV ER WROTE THE STATUTE IN THE LEGIS LATURE SINCE THE NEXT OF KIN C OU LD N'T NOR MALL Y WOULDN'T BE THE RIG HT P ER SO N TO B E SEE KI NG M ON EY F OR F UNERAL EXPENSES IT WOULD B E THE EST AT E O R THE P ERSO NA L REPRESENTATIVE SO WE ARE T O PRESUME WHOEVER WROTE THIS STATUTE DIDN'T R EALLY KNOW THE LAW ABOUT H OW E XPEN SE S ARE RECOVERED? I MEAN, A ND I'M A SKIN G T HA T -- BECAUSE IT SEE MS THA T I T IS OF COURSE IF YOU LAY T HIS SIDE BY SIDE WITH T HE WRONG FUL DEATH S TATU TE I T SHOWS MANY, MANY VAR IATION S BETWEEN THE WRONGFUL DEATH STATUTE. DID THE W RO NGFU L D EA TH STATUTE PRECEDE T HIS S TA TU TE ? > > WEL L , THE S TA TU TE HAS REMAINED THE S AME SIN CE 1999.

WHEN WAS T HE S TA TUTE FIRST PUT I NTO EFFECT?

THAT I DON'T KNOW.

WASN'T T HA T SOM ET IM ES W E LOOK AT THA T FOR STA TUTO RY C ONSTRUCTION HOW THEY U SED SIMILAR TERMS RELATED T O STATUTES?

THAT IS CORRECT. HOWEVER, WE T HINK , T HO UGH , THAT IF THIS STA TUTE WER E ALIED B Y ITS T ERMS I T WOULD SEEM THAT THE LEGISLATURE IS L EA VING T HI S WRONGFUL DEA TH , T HE REWARDING OF F UT UR E LOS T INCOME T O A VEH IC LE O F THE WRONGFUL DEATH S TA TU TE. THAT WOULD BE THE P ROPER WAY TO REC OVER SUC H A N A WA RD . W E THINK THI S IS N OT T HE AROPRIATE P LACE IN A RESTITUTION HEARING FOR A TRIAL COURT WHI CH H AS S O VERY LITTLE GUIDANCE AS EVIDENCED BY THE FACT T HAT T HE 5TH D CA D ID S EN D THI S BACK TO T HE TRIAL J UDGE TO INCLUDE LOS SE S O R T AX CONSE QUENCES , E XP ENSE S , S O FORTH AND STILL EVEN WITH THE LITTLE D IR ECTION FROM THE 5TH DCA WE D ON'T T HINK THAT THE TRIAL COURT HAS ENOUGH GUIDA NCE T O ASS ES S A N AWARD OF LOS T DAM AGES .

B UT T HE P ROBLEM H ERE IS YOU HAVE TWO C ON CEPT S UND ER THE WRONGFUL D EA TH S TA TUTE . ONE IS THE L OSS O F NET ACCUM ULATION WHICH IS F OR A N ESTATE AND THE OTHER IS LOSS OF SUORT WHICH I S F OR S URVIVORS , A ND W HA T T HE STATUTE USE S I N S UB SECT IO N 3 IS JUS T F OR I NCOM E LOS T , S O THEY D ON 'T EVE N - - WHI CH WOULD BE A G RO SS AMOUNT , NOT A NET AMOUNT.

THAT'S C OR RECT , S TR IC TL Y SPEAKING, YES.

AND Y OU P ERCE IV E THAT T HE DEDUCTIONS THAT THE 5TH DISTRICT CONTEMPLA TED I S PART OF THIS REI MB UR SEME NT ; IS THAT WHAT YOU PERCEIV E , RATHER THAN T HE CONCE PT O F N ET A CC UM UL AT IONS THAT W E ALL A LY I N W RONG FU L D EA TH ACTIONS?

WELL, I DON'T - - I B ELIEVE THAT T HI S 5 TH D CA SHOULD HAVE ANSWERED THE CERTIFIED Q UESTIONS NEGATIVELY IN B OT H C ASES. I DON 'T T HI NK T HE Y S HOUL D HAVE SENT IT BACK TO DETERMINE WHAT THE --

WHAT T HE SUBTR AC TI ON S SHOULD HAVE BEEN?

BUT IT WAS UNDER A T HE OR Y OF REIMBUR SE MENT I S W HY T HE Y SENT IT BACK ; IS T HA T YOUR PERCEPTION OF THIS?

YES, THAT I S M Y PERCEPTION, YES, THA T THI S SUBSECTION 3 HERE W OU LD A LY ALL OW T HA T A ND DISAGREEING WITH THE 5TH INTERPRETATION THAT IT DOES NOT HAVE TO DO WIT H FUT UR E LOST INCOME.

SO YOU W OULD AGR EE , THOUGH, SIN CE THE VIC TI M' S NEXT OF KIN, T HA T T HE NEX T OF KIN AT THE VERY LEAST COULD GET W HA T T HE INC OM E LOST BY THE VICTI M U P UNT IL THE T IM E O F A RES TITU TI ON H EARING ? IN OTHER WORDS, IT IS ESTABLISHED THAT THE CHI LDREN H AD S UO RT T HA T THEY HAVE L OST , B ECAU SE O F T HE D EA TH O F THE VIC TI M , AND SO THA T' S A TAN GI BL E L OS S , THE LOSS O F SUP PO RT , A ND I T MAY NOT H AVE BEEN PRESE NT ED THAT WAY AND THAT MAY B E A N EVIDENTIARY PROBLEM THE STATE HAS , BUT Y OU WOU LD A T L EAST CONCEDE U NDER THI S THAT I F T HE Y D ID N OT R EC EIVE S UORT FROM THE T IME O F H IS DEATH UNTIL THE TIME OF THE RESTITUTION HEARING T HAT THAT WOULD COM E UND ER Y OU R R EIMBURSEMENT, C ORRECT?

THAT IS C ORRECT. THEY C OULD REC OV ER F OR T HAT.

BUT T HA T W OU LD R EALL Y LEAVE YOU WIT H SOR T O F A N ONSENSICAL SITUATION I N WHICH IF T HE Y D IDN' T HAV E THE RES TI TUTION H EARI NG FOR 15 YEA RS THE N I T WOULD BE A MUCH GREATER A MOUN T A ND S O I T SEEMS TO ME T HA T THE REGULAR , COM MO N L OOKI NG A T WHAT T HE LEGIS LATURE D ID HERE WAS THAT THEY W ER E REIMBURSING THE E STAT E F OR WHAT T HE E STAT E WOU LD H AV E B EEN EXP ECTE D T O H AV E A S INCOME ASSUM ING T HI S FEL LO W LIVED OUT HIS NAT URAL LIF E. I M EA N --

AGAIN, THI S S TATUTE I S S O A S COMPARED TO T HE W RONGFU L DEATH STATUTE.

BUT YOU ARE NOT A TTACKI NG THIS ON S OM E CONSTITUTIONALITY VAGUENESS BASIS . YOU ARE DOING THI S O N A S TA TUTORY CONSTRUCTION BASIS.

T RU E . BUT , A GA IN W E ARE TRY IN G TO DETERMINE WHAT THE LEGISLATURE'S INTENT WAS AND WE DON'T B EL IE VE T HA T - - W E BELIEVE THAT IF THE LEGISLATURE INTENDED T HE TRIAL -- THE CRI MI NAL T RIAL COURT TO BE E NGAG IN G I N S UC H A SPECULA TI VE ENDEA VO R T HA T THEY WOULD HAV E PRO VI DE D MUCH MORE GUIDANCE AND THEY WOULD HAVE USE D , I NC LU DED SUCH TERMS A S F UT UR E L OS S O F INCOME AND HERE THEY D ID N'T. WE ARE SUGGESTIN G THA T W HE N WE ARE TAL KI NG A BO UT REIMBURSEMENT OF LOST INCOM E IT IS REF ER RI NG T O U P T O THAT POINT. WHAT HAS PREVIOUSLY OCCURRED. THE WOR D I MBUR SE I S T O PUT INTO A PURSE W IT H A PRE FI X R E WIT H S OM E T YPE O F PAYMENT FOR W HAT HAS A LR EA DY OCCURRED.

WITH THAT , I F T HE V ICTI M LIVED AND I PROBABLY HAVE SAID THIS A LREADY, BUT THI S IS M OR E T ANGIBL E AND B ECAM E PARAPLEGIC , C OU LD NOT W OR K THE REST OF HIS OR H ER LIF E , YOU ARE S AYING THA T T HE O NL Y THING THAT THE VIC TI M COU LD RECEIVE IN A R ES TITUTION H EARING AS O OS ED T O A CIVIL ACTION FOR DAMAGES WOULD B E W HATE VE R T IM E THA T THE R ES TI TU TION T OO K P LACE , JUST THE LOST INC OME U P T O THAT POINT?

THAT WOULD BE T HE INTERPRETATION THAT WE ARE ADVANCING, YES.

LET M E A SK T HA T O UT SI DE OF THE L OS T WAG ES , LET 'S S AY T HE PAR AP LEGI C A ND THERE I S ONGO IN G PHY SI CAL THE RA PY REQUIRED, ONGOING M ED ICAL EXPENSES, THEN I F W E ACC EP T YOUR ARGUMENT LET'S SAY SOMEBODY IS PLA CED ON PROBATION F OR T EN Y EA RS T HA T THE ONLY THING THAT T HA T PERSON COULD BE REQ UI RED T O PAY WOULD B E THOSE M ED IC AL -- REIMB UR SE WOULD B E T HO SE MEDICAL EXPENSES INC UR RE D U P TO THE DATE OF S EN TE NC IN G O R DETERMINATION OF RESTITUTION.

WELL , T HE S TA TU TE A GA IN SAYS TO P AY THE NECES SA RY MEDICAL AND RELATED PROFESSIONAL SER VICES.

THEY USE A D IF FERE NT TERM.

THEY USE A DIFFERENT TERMINOLOGY, PAY THE COSTS WHERE AS IN NUM BER THREE T HEY DELIBERATELY USE THE TER M REIMBURSE WHICH IS TO , YOU KNOW, D ISTING UI SH ABLE FRO M PAY THE C OSTS. THAT'S WHY W E ARE H INGING MUCH OF O UR ARG UM EN T O N T HA T DISTINCTION.

JUSTICE LEWIS HAD A QUESTION.

WE REA LLY DON'T E VEN G O INTO THE POINT OF THE RESTITUTION H EA RING . I MEAN, THE I NC OM E L OS S OCCURS AS OF - - T ER MINA TE S THE INCOME L OS S AS O F T HE DATE OF DEA TH, BUT THERE I S NOTHING IN HERE THAT EVEN TAKES OR IS THERE THA T G IV ES US T HI S P ER IOD B ET WEEN T HE CRIMINAL EVENT O F T HE D EA TH A ND T HE HEARI NG ITSELF?

NOT SPECIFICALLY.

THERE IS NOTHING I N H ERE THAT COVERS THAT.

RIGHT. THAT'S NOT SPECIFICALLY , A ND I WOULD P OI NT O UT T HA T --

I M EA N I F I T END S A T T HE TIME OF DEATH THERE IS N O INCOME T HA T I S T O B E E ARNE D AFTER ONE IS DECEASED.

THAT IS TRUE.

WHAT WOULD Y OU BE REIMBURSING THEN?

WE THINK THE CIVIL C OURT WOULD BE THE AROPRIA TE AVENUE TO PURSU E ANY A DDITIONAL R EC OVER IES. WE JUST DON 'T THINK THAT THE LEGISLATURE INTENDED T HE C RIMINAL RES TI TUTION H EA RING TO I NV OLVE ITS EL F.

REIMBURSE T HE VIC TIM F OR INCOM E LOST BY T HE V ICTIM AS A RESULT OF T HE OFFENSE S O IT DOE SN'T S TOP ON T HE DAY OF THE OFFENSE. IT IS JUST SIMPL Y S AY ING I T IS GOING TO -- AND I F THE Y USE P AY YOU WOU LD A GREE THI S WHOLE THING WOULD BE IN A DIFFERENT POSTURE BUT YOU'R E REALLY AGAIN AS TO S UBSECTION 3, REL YING O N T HE TER M R EIMB URSE.

AND WE'RE SUGGESTING T HIS IS TO A L IV IN G V ICTI M , NOT TO A D EC EA SE D V IC TI M. IT WOU LD NOT M AK E --

DOESN'T THE D EF INIT IO N O F VIC TIM PRE CL UD E THAT ARGUMENT? ISN'T THE DEFINITION OF VICTIM BROAD ENOUGH TO INCLUDE THE E STATE AND NEXT OF K IN I F THE V IC TI M D IE S ?

IF THE V ICTI M D IE S THE N THE RECOVERY IS LIMITED .

JUST GETTING T O Y OU SAYING THIS SHOULD BE ONLY TO THE V IC TI M , A ND N OT TO ANYBODY ELSE, BUT IT S EEMS TO ME T HAT THE L EG ISLA TU RE PRECLUDED THAT ARGUMENT BY SPECIFICALLY DEFINING T HE TERM VICTIM IN T HE STA TUTE TO INCLUDE THE ESTATE ANDTHE NEXT OF KIN IF THE VICTIM IS DECEASED.

THE ESTATE IF THE V IC TI M IS DECEASE D. AND WE'RE ARGUING THAT HE I S DECEASED FROM SOME C AUSE OTHER THAN THAT WAS R EL AT ED TO THE OFFENSE.

I UNDERSTAND THAT, BUT I'M A DD RESSING Y OUR A RGUMENT THAT IT IS ONLY THE VICTIM OF THE C RIME , AND I F T HE VICTIM DIES THA T'S I T , T HE RE IS N O O TH ER RECOV ER Y AND T HE STATUTORY DEFINITION S EE MS BROADER THAN THAT .

WELL , I W OULD D ISAG REE WITH THAT INT ERPR ET ATIO N INSOFAR A S SUB 3 G OE S BECAUSE THE VICTIM I N T HA T CASE, I F THE VIC TI M C AN M EA N AN ESTATE IN E VERY S ITUATION THE STATUTE WOULDN'T MAK E SENSE. YOU CANNOT SAY REI MBURSE T HE OR IF THE V ICTIM MEANING T HE ESTAT E SUFFERS A PHYSICA L INJURY AND A STA TE CAN 'T SUFFER A P HYSI CAL I NJUR Y T HE CONTEXT HAS TO DET ER MINE H OW WE ARE TO USE THE WOR D V IC TIM.

WELL, YOU HAVE USED U P MOST OF YOUR R EBUT TAL T IME. YOU MAY WANT TO S IT DOW N. YOU H AVE CERTA INLY RAISE D SOME VERY INT ERES TING STATUTORY CONSTRUCTIONARGUMENTS THIS MORNING. MISS D AVEN PO RT . > > MAY IT PLE AS E THE COURT , I REPRESENT THE STATE OF FLORIDA. IT IS O UR POS IT ION THA T T HI S STATUTE IS VERY CLEAR. IT IS B ROAD. IT IS DES IGNED T O C OV ER EXA CTLY THIS T YPE O F SITUATION. IT SAYS WE ARE GOING TO REIMBURSE THE VICTIM F OR INCOME LOSS B Y T HE V IC TI M ASA RESULT OF THE OFFENSE. THIS VICTIM W AS MUR DERE D AS A RESULT OF THE OFFENSE. WE HAD TESTIMONY HE W OULD HAVE WORKED UNTIL HE WAS 6 0 AND HE WENT T HR OU GH A LL OF HOW MUCH HE EARNED.

LET'S GO B AC K . THE S TA TE'S A RGUMENT IS T HI S I S A P LAIN AND U NAMB IGUO US STATUTE.

YES.

THEN HELP ME WIT H T HE FOLLOWING : T HA T T HE Y USE THE WORD P AY FOR SUB SECT IONS 1 AND 2 AND T HE Y U SE THE W OR D R EIMBURSE FOR SUB SECT IO N 3 . NOW , W HY WOU LD N'T THE Y JUS T USE PAY T HE VICTI M FOR INCOME LOSS, WHY W OULD N' T THEY USE REIMBURSE F OR T HA T SECTION , B EC AU SE W E ARE AGAIN YOU ARE SAYING I T I S A CLEAR STATUTE SO EVERY TIME WE SAY OVER AND O VER IF T HE LEGISLATURE USES D IF FERE NT LANGUAGE WITHIN THE SAME STATUTE THEN WE'VE GOT T O ASSUME THAT THE RE WAS S OM E R EASON THAT THEY U SED IT. SO TELL ME HOW D O W E G ET AROUND THAT A RGUMEN T T HAT THEY USE A DIFFERENT W OR D REIMBURSE WHICH USUALLY TENDS T O L OO K RETRO SPECTIVE LY .

BECAUSE I THINK I F T HE Y WOULD HAVE SAID PAY THE COSTS OF INC OM E LOS T I T WOULD N'T HAVE MADE M UCH SENSE. BY SAY IN G P AY THE COSTS IT ALSO E NC OM PA SS ES W HE N Y OU HAVE THIRD-P ARTY C OS TS. IF YOU LOOK AT NUMBE RS ONE AND TWO IT TALKS ABOUT PHYSICAL AND OCCUP AT IONAL T HERAPY AND MEDICAL COS TS AND THINGS LIKE THAT. I THINK THEY USE THAT LANGUAGE TO AVOID AN A RGUMENT, W EL L , HE HAD INSURANCE SO HE DIDN'T HAVE TO PAY T HAT C OS T SO IT IS N OT , Y OU K NO W , H E IS NOT R EI MBUR SE D FOR T HA T BECAUSE HE DIDN' T PAY I T AND THE MEDICAL INSURER I SN 'T A VICTIM. I T HINK THE Y USED THE LAN GUAGE TO AVOID T HA T K IND OF A PROBLEM V ERSU S REIMBURSING T HE INCOME LOS S IS SOMETHING THAT'S P ERSONAL TO THE VICTIM H IMSE LF . SO THEY U SE T HE W OR D REIMBURSE. HE LOST IT WHEN H E W AS MURDERED AND IT IS ALL WE HAD AN EXPECT C OM E IN A ND SAY THIS IS HOW MUCH IT W AS . > > IS I T N ET , G ROSS , W HA T' S YOUR POSITION ON THAT?

IT IS OUR POS IT IO N I T SAYS INCOM E L OST T HA T MEANS INCOME. WHEN PEOPLE S AY I NCOM E T HEY REFER TO THEIR GRO SS INC OM E. THEY DON'T SAY INCOME L ES S MY LIVING EXP ENSE S AND T AXES AND HOW MUCH D ED UCTI ON S I TOOK.

INC OM E C AN B E D EFINED AS GROSS INC OME OR NET INC OM E SO WHY ISN'T I NC OME H ERE WHEN YOU CONSIDER THE CONTEXT OF THE S TA TUTE YOU ARE REALLY TRYING TO DO , WHICH I S DETERMINE WHAT HE WOULD HAVE B ROUG HT H OM E T O MAK E THAT I T R EALL Y M EANS NET INCOME , N OT G RO SS INCOME?

WELL, FOR ONE T HING IN THE WRONGFU L D EA TH STATU TE THEY SAY NET ACC UMULAT IO N S O I THINK THE LEGISLATURE DOES KNOW HOW T O DEFINE T HE N ET AND HOW T O TAK E T HI NG S O UT . I THINK I F YOU USE THE W OR D INCOME, THE COMMON UNDERSTANDING OF WHAT THAT MEANS IS YOUR GROSS I NCOM E.

BUT T HAT'S W HERE THE R UB IS ON T HIS , BEC AUSE I T WOU LD SEEM TO TEN D T O L EN D S UO RT TO T HE A RG UM EN T T HA T T HI S ISN'T TO B E B ROAD , Y OU KNO W , WRO NGFUL DEATH STA TUTE. THIS IS R EALLY A M UC H M OR E NARROW IDEA T HA T W E D ON'T HAVE PAIN AND SUFFE RING IN THIS OR THOSE KINDS OF THINGS THAT WE ARE REALLY JUST, THAT THEY WERE TRY IN G TO GET C ON CR ET E LOS SE S DETERMINED A ND NOT B E ABL E T O A WA RD MORE THAN WHAT WOULD HAVE OCCURRED I F THE PERSON HAD LIVED DUR IN G H IS OR HER L IFE.

RIGHT. T HERE IS CERTAINLY N O I NTENT TO GIVE A WINDFAL L T O THE VICTIM, BUT I T HINK IT I S DESIGNE D --

BUT W HAT WE A RE D OI NG - - GO AHEAD.

NEXT OF KIN IS NOT DEFINED IN THE STATUTE, CORRECT?

THAT'S CORRECT.

SO NEXT OF K IN , B Y OPERATION OF C OM MO N LAW I WOULD ASSUME, COULD B E A FOU RTH R EMOV ED THIRD C OUSI N , NO R EL ATIONSHIP REALLY F OR SUORT , BUT UND ER T HO SE CIR CUMSTANCES I F T HE D EATH IS AS A RESULT OF THE OFFENSE THEN YOU COULD HAV E A F OU RT H C OU SI N COU LD GET INCOME LOST BY THE FOU RT H C OUSIN WHI CH W OULD B E N ON E , BEC AUSE THERE WOULD BE N O RELATIONSHIP FOR INCOME O R SUORT RUNNING TO THIS OTHER PERSON, WOULD THERE NOT?

WELL , IT I S INCOM E L OS T BY THE VICTIM S O W HO I S AWARDED --

BUT VICTIM IS DEF IN ED IN T HE CASE OF V ICTI M' S N EXT O F KIN IF VICTIM IS D ECEASE D. SO IS I T L OS S BY T HE T HI RD COUSIN?

I THINK IT I S I NCOM E L OS T BY THE VIC TI M W HO I S DECEASED.

IT DOESN'T S AY THAT EITHER. IT JUST SAYS VIC TIM.

THE PERSON WHO LOS T INCOME BECAUSE OF THE C RIMEWAS THE DECEASED P ER SO N . I DON'T THINK YOU CAN ONL Y REIMBURSE THE DECEASED PERSON OR H IS ESTATE IF H E HAENS TO HAVE BEEN SUORTING SOMEBODY.

BUT T HE P RO BL EM AGAIN , AND, YOU KNOW , I DON 'T KNO W. I ASS UM E THA T W HA T I HAV E ALWAYS ASSUMED WITH THI S RESTITUTION STATUTE IS THAT IT A CT UALLY R EI MBUR SED , Q UOTE, VIC TI MS FOR SOR T O F NONTRADITIONAL THINGS. I REMEMBER THERE WAS A C AS E WHERE T HE S TO RE L OST SOMETHING AND SOME THI NG S THAT AREN'T NORMALL Y THO UG HT OF IN A NORMA L L AW SU IT T HA T YOU COULD G ET AND W ER E CAUSILY RELATED IS A LIT TL E MORE FLEXIBLE.

RIGHT.

THERE IS , I MEA N THE QUESTION ABOUT WHERE I T WOULD COME ABOUT, L IK E H ER E YOU WOULD HAVE I ASS UM E THAT THE ESTATE WOULD WANT TO BRING A W RO NGFU L D EA TH ACT ION. HOW WOULD T HAT WORK? WOULD THERE BE - - W HAT I F I N T HIS CASE THE N EXT OF K IN I S , YOU K NOW , ARE T WO OF THE CHILDREN AND THEY ARE AWARDED THE M ONEY R AT HE R THAN BECAUSE YOU ONLY HAVE THE ESTATE N OW , WHI CH M AY NOT BE A PRO CL AIM A NT , AND THEN THE WRO NG FU L D EATH C AS E OTH ERS AEAR. HOW DO THE TWO WORK? IS T HERE S ET OFF S? . > > IN THE RES TI TU TI ON STATUTE THEY SET OFF THE RESTITUTION AWARD AGA IN ST THE WRONGFUL D EATH.

WHAT IF T HE NEX T O F K IN S THAT CLAIM IT IN THE RES TITUTION ARE TWO OF THE CHILDREN AND THE O TH ER T HREE WHO GO TO THE W RONG FU L D EATH ACT ION ARE D IFFERENT O NES? HOW WOULD THA T WORK?

I THINK THAT I S S OMETHING THAT WOULD HAVE TO B E RESOLVED IN THE CIVIL COURTS. I THINK THE FAMILY C OU LDN'T AGREE ON WHERE THE MONEY IS SUOSED TO GO THAT THE Y WOULD BRING A N A CTION F OR CONTRIBUTION.

IN T HIS CASE , L ET 'S ASSUME WE SUSTA IN T HI S . I T IS NOW T HE FAT HE R O F T HE VICTIM THAT GOT THE RESTITUTION AWARD?

WELL, THE FATHE R AND MOTHER OF THE VICTIM GOT A R ESTITUTION AWARD FOR T HE IR OWN LOST WAGES.

S O W HO W OULD G ET THI S MONEY?

THE AWARD OF T HE L OST INCOME OF THE VICTIM WENT T O THE EST AT E.

THE PER SONAL REPRESENTATIVE WHO WOULD THEN HAVE T O DIS TR IB UT E I T HOW? I MEAN, THA T W OULD H AVE T O GO THROUGH THE STATE?

THAT WOULD G O T HROUGH THE REGULAR STATE, YES. THE ESTATE HAS BEEN AWARDED THE R ESTITUTION. THE PRO BATE COURT WOULD BE THE ONE TO DIV ID E U P H OW THAT WOULD WORK.

IT MIGHT B E T HA T THO SE CLAIMING LOST SUORT WOULDN'T EVEN BE ABLE TO GET IT BECAUSE THEY SAY, WELL , THIS IS JUST C OMING IN FOR LOST INCOM E A ND W E D ON 'T , YOU KNOW, IT WOULD J UST G O TO THE ESTATE AND N OT T O T HE -- THOSE THA T WER E - - I M EAN I DON'T KNOW. IT S EE MS T O M E T HE RE ARE PROBLEMS, THOUGH.

THAT WOULD B E WORKE D O UT IN THE PROBATE C OU RT B EC AUSE THERE IS AN AWARD T O THE ESTATE. THE PROBA TE COURT W OULD HAVE TO DECIDE WHO GETS THI S MONEY. IN THIS CASE THERE ARE FIV E CHILDREN AND I WOULD IMAGINE IT WOULD B E SPL IT UP A MO NG THEM. IN THE CASE OF SOMEONE WHO LEFT EVERYTHING TO THEIR CAT THEN, Y OU KNOW , THE PRO BATE COURT WOULD H AVE TO W OR K THAT OUT.

WHAT DOES T HE T RIAL C OU RT DO IF -- I N T HI S CAS E YOU AARENTL Y HAD THE MILLION DOLLARS INSURANCE AND THE WIFE A C ODEF EN DA NT S O THI S IS AN A BNOR MA L CAS E A ND I N A LOT OF THE CASES THERE I S N O ESTATE OPENED UP.

EVERYBODY HAS A N ESTAT E , SO THEY WOULD O PE N ONE U P I F THERE WAS AN AWARD T O T HE ESTATE I WOULD IMAGINE IS HOW THAT WOULD WORK IN A PRO BATE COURT.

BUT HOW DOE S T HI S W OR K AS FAR AS THIS IS PART OF A P LEA AGREEMENT , AND A S P AR T W AS T HI S A CON DI TI ON OF PROBATION, THE PAYMENT OF THE RESTITUTION?

I DON 'T B ELIEVE SO. I THINK HE JUST MADE I T A JUDGM ENT , BEC AU SE T HE O RDER ITSELF READS, Y OU KNOW , F OR WHICH S OM E E XECU TION ISS UE S SO I DON'T B ELIEVE IT I S MADE A CONDITION OF PROBATION IN THIS PAR TICU LA R CASE ALTHOUGH I T I S CERTAINLY A POSSI BILI TY I T CAN BE.

DOES THE STA TUTE P ROVIDE FOR E XECUTION I SSUE JUDGMENTS IN FAVOR OF NONPARTIES TO T HE P ROCEEDINGS?

WEL L , THE Y A RE P ARTI ES T O T HE PROCE ED INGS UNDER THE RESTITUTION STATUTES. THEY ARE BENEFICIARIES AS VICTIMS.

I'M ASK ING ABOUT THAT , BECAUSE HOW DO WE RESOLVE ISSUES F OR I NSTA NC E LIK E RE S JUDICATA OR E ST OE L B Y JUDGMENT? IN OTHER WORDS, IF THESE PEOPLE COME IN AND PARTICIPATE IN THE RESTITUTION HEARING A ND , Y OU K NOW, F OR I NS TA NC E THEY SAY, YOU KNOW, WE THINK , JUD GE , WE'RE ENTITLED TO $50 0,00 0 AND THE JUD GE SAY S , W EL L , I'VE LISTENED T O THE PROOF YOU'VE SUBMITTED BUT I D ON 'T THINK IT PROVES UP T HA T MUC H . S O H E S AY S , I 'L L G IV E YOU $50,000 UNDER WHAT YOU HAV E SUBMITTED.SO LATER THEY DO FILE A WRONGFUL DEATH ACTION.

RIGHT.

AND N OTIC E , B OY , THE Y BRING EVERYTHING ON THE BAN D WAGON A ND T HE O THER S ID E N OW SAYS THAT T HE D EF ENDA NT'S SID E SAYS WAI T A MIN UTE, YOU KNOW, THI S W AS ALL LEG AL LY , Y OU K NO W , DIS PUTE D AND A LL TRIED O UT O VE R I N T HE CRIMINAL COURT RESTI TU TI ON P ROCEEDINGS, A ND S O YOU CAN'T GET ANY MOR E T HA N T HE JUDGE O VER THE RE ALL OW ED YOU. NOW , W HAT' S T HE E FFEC T T HE N OF T HE R ESOL UTIO N O R E VEN THE N ONRE SO LUTION OF THE - - ALL OF THESE ISS UE S THAT YOU SAY P OTENTIALLY CAN B E BROUGHT BEFORE THE CRIMINA L COURT JUDGE? IS THERE A F UL L RE S JUD ICAT A EFFECT?

I DON'T B ELIEVE THERE WOULD BE BECAUSE THE VIC TI MS AREN' T PARTIES TO THE CRIMINAL ACTION.

AREN'T WE THEN REA LLY COMING APART AT T HE SEA MS THEN IF WE' VE G OT S OM ET HING THAT IS G OING TO BE S O I N PREC IS E THAT IT I S L IK E W HE N W E T AL K ABOUT HOM ES TE AD , T HE F LO RIDA C AMELEON , AREN' T W E TAL KING ABOUT THIS THI NG I S R EA LL Y CHANGING COLORS AND FLA VO R AND E FFEC T A ND BUT WHA T I AM CONCERNED ABOUT IS W OULD N' T YOU A GREE THAT T RADITI ON ALLY , AT LEAST, R ESTI TUTION WAS NOT INT EN DED T O SUBST IT UT E FOR CIVIL P RO CEEDIN GS T O AWARD FULL D AMAG ES T HAT MAY HAVE BEEN INCURRED TO WHOEVER? WOULDN'T YOU AGREE T HA T T RADITIONALLY THAT WAS NOT THE CASE?

I WOULD A GREE T HA T I T I S NOT A SUBSTITUT E E VE N NOW. HE IS NOT GIVIN G P AI N AND SUFFERING D AMAGES AND LOS S OF SUORT DAMAGES AND THINGS LIKE T HAT.

WHY NOT?

BECAUSE IT IS N OT PROVIDED FOR IN THE RESTITUTION STATUTE.

YOU AGREE THERE WOULD HAVE TO BE A V ER Y E XP LICI T P RO VISION IN THE R ES TITU TI ON STATUTE IF SOMETHING LIKE THAT WERE TO BE ALLOWED?

YES, I T HI NK I F THE LEGISLATURE INTENDED FOR THEM TO BE ABLE TO GET P AI N AND SUFFERING D AMAGES THAT THAT WOULD HAVE TO BE WRITTEN OUT IN THE RESTITUTION STATUTE.

IF WE ARO VE THE SE KIN DS O F D AMAGES , A RE N' T W E REALLY SAYING, W ELL , Y OU K NO W , THE Y ARE ALL OWIN G S OM E O F T HI S KIND OF THING A ND W E C AN'T QUITE , Y OU KNO W , D EF IN E I T BECAUSE THE LANGUAGE I S BROAD , AND S O W E ARE JUST GOING TO HAVE TO LET THIS THING DEVELOP. NOW, D EPEN DI NG O N H OW F AR A PROSECUTOR WANTS TO GO IN TERMS OF SEEKING , Y OU K NO W , THESE KINDS OF DAM AG ES ?

I THINK T HE L AN GU AGE I S BROAD AND I THINK I T I S STILL LIMITED BY T HE STATUTE.THE PROSECUTO R CAN 'T S AY I N THIS CASE HE SUFFE RE D A L OT SO L ET 'S C OM PENS AT E THE EST ATE FOR THE PAIN A ND SUFFERING DAMAGES. THE PRO SECUTOR IS S TILL LIMITED BY T HE SE S PECI FI C PROVISIONS IN THE RESTITUTION STATUTE AS TO WHAT KIND O F RESTI TU TI ON CAN BE ORDERED AND ONE OF T HE THINGS THAT CAN BE ORDER ED IS THE L OST I NC OM E .

I S RES TI TUTI ON A CRI MINA L SANCTION OR IS IT A C IV IL SANCTION?

I T I S A C RI MINA L PROCEEDING. I WOULD S AY IT I S A CRIMINAL --

YOU COULDN'T HOLD H IM IN JAIL FOR FAILURE T O B E A BL E TO PAY THE R ESTI TU TION , COULD YOU?

WHEN Y OU E NF ORCE A RESTITUTION ORDER YOU HAVE TO CONSIDER T HE DEF EN DA NT 'S ABILITY TO PAY.

ALL RIGHT. AND --

BUT THERE ARE C RIMINA L , YOU KNOW, T HERE I S A CRIMINAL HAMMER THAT GIVES YOU A N EXT RA I MPOT US T O PAY RES TITUTION.

OKAY. ONE OTHER Q UE STIO N . THE RE HAS BEEN A N A RGUMEN T HERE ABOUT WHAT THE DICTIONARY DEFINITION O F REIMB URSEMENT I S .

I T HI NK REI MB URSEME NT MEANS TO PAY B ACK S O I THI NK YOU ARE R EIMBUR SI NG T HE VICTIM FOR INCOME LOST. LIKE YOU SAID IN THIS CAS E IF HE HAD B EE N P ARAP LE GI C O R LET'S S AY H E S UF FERE D A N INJURY IN A R OB BERY ATT EM PT AND T HE E VIDENCE S HO WED THAT HE WOULDN'T BE ABLE TO WORK FOR A YEA R. I THINK EVEN T HE DEFENSE WOULD C ONCEDE THAT YOU WOU LD PAY THE V ICTI M T HE L OS T WAGES FOR THAT YEAR. WELL, IF THE R ES TITUTI ON HEARING TOOK PLACE NIN E MONTHS INTO THAT YEAR , Y OU DON'T STOP THE R ES TI TU TION AT THAT POINT. I MEAN, YOU CAN'T CON ST RU E THE STATUTE IN A WAY THAT I T DOESN'T M AKE SENSE. AND THE INTENT OF T HE LEGISLATURE IS TO MAKE T HE V ICTIMS WHOLE.

JUS TI CE CAN TERO H AS A QUESTION.

IN THIS C ASE THERE W AS NEXT OF K IN?

YES.

WHY DIDN'T THE J UDGE ALY THAT PART OF T HE STATUTE P ROVIDING FOR NEXT OF KIN?

THE NEXT OF K IN W ER E AWARDED DAMAGES FOR THEIR OWN LOST WAGES AS A R ESULT OF THEIR A TTEN DANC E A T TRIAL. THE AWARD O F LOS T W AGES OF THE VICTIM WENT TO THE ESTATE.

RIGHT. BUT IT SEEMS , A ND YOU ARE SAYING THE STATUTE IS C LEAR , THE DEFINITION O F VIC TI M SAYS THE V IC TI M ALS O INCLUDES THE VICTIM'S ESTAT E IF THE VICTIM IS DECEA SE D AND THE VICTI M'S N EXT OF K IN IF THE VICTIM IS D EC EASED AS A RESULT OF THE OFFENSE. SO WHY UNDER THA T S EC TI ON WOULDN'T THE JUDGE AWA RD T HE DEC EDENT 'S LOST I NCOM E T O THE N EXT O F K IN A ND N OT T O THE ESTATE?

I THINK HE COULD HAVE.

OKAY . WHY MUST HE N OT ? I MEAN, ISN'T T HAT C LE AR ? I MEAN YOU ARE SAYIN G T HE STATUTE IS CLEAR SO IF IT I S CLEAR IT SEEMS TO CLE AR LY PROVIDE THA T IT GOES TO THE NEXT OF KIN AND NOT T O T HE ESTATE? S DPLI THINK THE S TA TUTE PROVIDES IT COULD GO TO EITHER ONE DEPENDING ON THE CIRCUMSTANCES.

ON THE C IRCUMSTANCES HERE WAS THE VICTIM IS DEC EA SED AS A RESULT OF THE OFFENSE?

RIGHT.

SO WOULDN'T T HAT D ICTATE THAT IT BE A WARD ED T O THE NEXT OF KIN ?

BUT I T IS N OT L IMIT ED T O THE NEXT O F K IN . THE ESTATE AND THE NEXT OF KIN ARE BOTH D EFIN ED AS VICTIMS .

BUT IF THE PUR POSE I S REIMBURSEMENT FOR LOSS , WHA T'S THE PURPOSE OF AWARDING IT TO THE ESTATE AND NOT TO THE NEXT OF K IN ? > > I T HI NK HE DID I T I N T HI S PARTICULAR CASE BECAUSETHERE ARE CHILDREN WHO ARE BENEFICIARIES OF THE ESTATE.

WHAT'S THE PURPOSE OF THE STATUTE IF THERE ARE NEXT O F KIN AND THE D EC EDEN T D IE S ASA RESULT OF THE OFFENSE A ND THE PURPOSE OF THE S TATUTE IS T O PRO VIDE RES TITU TI ON FOR THE V ICTIM W HICH INCLUDES THE VICTIM' S F AM IL Y IF THE V IC TIM D IES H ER E , WHAT'S THE PURPOSE OF A WARDING THAT RESTITUTION TO THE ESTAT E O F T HE D ECEDEN T RATHER THAN T HE NEXT OF KIN?

BECAUSE THE ESTATE IS GOING TO MAK E T HE VICTI M WHOLE. THE ESTATE IS ONE OF T HE VICTIMS AS I T I S D EF INED I N THE STATUTE. THE NEXT OF KIN ARE V IC TIMS AS WELL.

ISN'T WHA T H AENS OFT EN IN THIS CASE, THOUGH , THERE IS NO F OR MA L E STAT E O PENE D AND THE V IC TIM' S N EX T O F KIN COME OUT OF POCKET F OR EXPENSES PARTI CU LARL Y FUNERAL EXPENSES A ND W HA T THIS S TATUTE A LL OW S I S THAT'S THE WAY I EXPERIENCE IT AS A T RIAL JUD GE I S THA T YOU WOULD AWA RD TO THE NEXT OF KIN WHO P AID T HE $ 5, 00 0 FOR THE F UN ER AL ?

RIGHT.

ISN'T THE WIFE HERE ONE OF THE NEXT OF KIN?

SHE IS BUT S HE I S EXCLUDED FROM THE RESTITUTION AWARD.

ON WHAT BAS IS ?

BECAUSE SHE MURDERED HER HUSBAND.

I U ND ERST AN D BUT W AS I T A PUBLIC -- IT DID N' T SEE M LIKE THE JUDGE REALL Y EXPLAINED THE REASONS THAT EVEN THOUGH AND IT SEEMS LIKE TO ME T HAT'S KIND O F LIKE A BEHIND THE SCENES RAINY FOR N OT AWARD IN G T O THE NEXT OF KIN BECAUSE T HA T WOULD INCLUDE THE W IFE BUT IT SEEMS TO ME THAT THE REASON YOU DON'T AWARD I T T O THE WIFE IS NOT BECAUSE SHE IS NOT NEXT OF KIN B UT BECAUSE IT WOULD P ROVIDE A N ABSURD RESULT IN THE STATUTE AND THERE IS A PUBLIC POL IC Y AGAINST R EWARDING CRI MI NA L DEFENDANTS FOR MURDERING PEOPLE?

RIGHT.

BUT O TH ERWISE THE CHILDREN ARE CERTAINLY NEXT OF KIN AND T HE Y D ES ER VE REIMBURSEMENT UNDER THE STATUTE.

THEY DO, YES.

BUT THE J UDGE D ID N' T EXP LAIN THAT.

I THINK IT WAS A AR ENT , BUSINESSED ON THE PEOPLE WHO CAME IN AND T ESTIFI ED W HAT EXACTLY WAS GOING ON. THE PERSONAL REPRESENTATIVE CAME IN AND SAID , Y OU KNOW , I HAVE OPENED T HE E STATE. THE CHILDREN ARE THE BENEFICIARIES.

BUT YOU SEE THAT W OU LD JUST BE CONTRARY TO THE STATUTE AS WELL BEC AUSE THE ESTATE IS SUBJECT TO THE CLAIMS OF CRE DITORS FOR INDIVIDUAL NEXT O F KIN M AY NOT BE.

THAT'S TRUE.

SO I MEA N T HI S WHO LE THING JUST SEEMS AS T HOUGH IT IS J US T H AS N OT FOLLOWE D T HE S TA TUTE F RO M T HE OUT SET.

WELL, I THINK I T I S L EF T TO THE DISCRETION OF THE T RIAL COURT.

YOU SEE , T HA T' S WHER E I AM HAVING A LITTL E TRO UBLE , YOU KNOW, OF C OURSE W E H EAR ALL OF THE TIM E WHE THER T HI S IS A STATUTORY CON ST RU CT ION CASE OR W HE THER I T WI LL B E LEDGES LATING FROM THE B EN CH IN TE RMS OF WHAT WE DO A ND WE'VE GOT A CASE HER E T HA T WHERE PROBATION AND T HI S CAN BE A CONDI TION O F P ROBA TION SO DON'T WE H AVE T O C ON ST RU E THIS S TATU TE NAR RO WL Y , RA THER THAN B RO AD LY IN T ERMS OF I T B EING - - B ECAUSE I T HAS CRIMINAL C ON SE QU ENCE S DON'T WE HAVE TO DO T HAT?

YES.

SO I N D OING THAT , SHOULDN'T WE AS OOSED TO SAYING, WELL, THIS I S JUS T , BECAUSE THIS WAS A S EV ER AL MILLION D OLLAR A WA RD . SAY T HE L EGIS LA TURE NEEDS T O FIX THIS S TATU TE , B UT R IG HT NOW IN I TS C UR RENT F OR M W E NEED T O F OLLO W AS MUC H AS W E CAN THE EXA CT LAN GUAG E U SE D BY THE L EGIS LATU RE AND C ONSTRUE IT N ARRO WL Y ; ISN 'T T HAT THE BETTE R RES ULT? AND THEN L ET THE L EG IS LA TURE TAKE A LOOK A T I T A ND F IN D OUT WHAT THEY REALLY INTENDED TO , YOU K NO W , HAV E IF T HEY HAD A BRO ADER I NT EN T THEN THEY CAN AME ND T HE STATUTE TO MAK E SUR E , I SN 'T THAT A BETTER THING FOR T HI S COURT TO DO?

I THINK YOU C AN 'T CONSTRUE IT S O N AR RO WL Y T HA T IT MAKES N O S ENSE , A ND Y OU CAN'T C ONSTRUE I T S O NARROWLY THAT WE JUS T T OSS OUT NUMBER THREE ALL TOGETHER WHICH IS B AS ICALLY WHAT T HE D EF ENSE P OS ITION IS. CLEARLY THERE IS AN INTENT HERE TO R EI MB UR SE FOR L OS T INCOME, A ND T HA T'S WHAT T HE TRIAL COURT DID. IN THIS CASE WE H AD T HE EXPERT COME IN. HERE IS HOW MUCH HIS INC OM E WOU LD HAVE BEEN. HE COULD HAV E AWA RD ED IT TO THE NEXT OF KIN. HE CHOSE TO A WA RD IT T O THE ESTATE. IS THAT AN ABU SE OF DISCRETION? THERE IS NOT EVEN AN ARGUMENT ABOUT THAT.

EXCEPT THAT I T SAY S , I T I NCLUDES THE V IC TI M' S E ST ATE IF THE VICTIM IS DEC EASE D AND THE VIC TI M' S NEX T OF K IN IF THE VICTIM IS D EC EA SE D ASA RESULT OF THE OFFENSE . SO I T S EE MS T O ME T HA T I T I S USING NEX T O F KIN FOR W HE RE THE V ICTI M D IE D AS A RES UL T OF THE O FFEN SE ; W HE RE AS I F THE V IC TI M' S E STAT E , I F T HE VIC TIM DIE S UNR EL ATED T O IT. THAT WAS A N ARG UMEN T M AD E HERE, WHICH WOU LD HAV E , O F C OURSE , A GA IN CHANG ED WHA T THE NATURE WOULD BE OF T HE DAMAGES THAT YOU WOULD A WA RD DEPENDING ON IF T HE NEXT O F KIN OR T HE EST AT E. > > BUT I DON 'T T HINK IT I S THE VICTIM'S ESTATE IF THE VICTIM IS D ECEASE D N OT A S A RESULT OF T HE OFFENSE . I DON'T THINK YOU CAN READ THAT INTO THAT. I THINK IF THE V IC TIM I S DECEASED ANY TIME THAT THE ESTATE IS A VICTIM. I THINK THE NEXT O F K IN I S A MORE NAR ROW CAT EGORY. THEY ARE ALSO A VICTIM I F THE D ECEA SE D - -

C LE ARLY I N S UBSE CT IO N 4 THEY S PE CIFI CALLY T AL K ABOUT SITUATIONS WHERE BODILY INJURY RESULTS IN D EATH AND THEN THEY S AY N ECES SARY FUNERAL AND RELATED EXPENSES.

RIGHT.

BECAUSE IT IS S O DIFFERENT WHEN SOMEONE DIES VERSUS L IVES I N T ER MS O F T HESE OTHER CAT EG ORIE S , I T W OULD SEEM THAT THE P RUDE NT THING WOULD B E TO REALL Y SEPARATE IT OUT, WHAT IS INTENDED TO B E R EC OV ERED I F THE V ICTIM DIES AS A R ES UL T OF THE O FF EN SE .

IT COULD HAV E B EE N WRITTEN DIFFERENTLY AND ACCOMPLISHED THAT. THE QUESTION IS DOES IT HAVE TO BE WRITTEN D IFFE RE NTLY T O ACCOMPLISH THAT?

MOST OF T HE SE B ECOM E V ER Y THEOR ETICAL B EC AU SE M OS T O F THE T IMES S OM EB OD Y H AS KILLED SOMEBODY THEY ARE N OTGOING TO BE G ETTI NG O UT OF PRISON ANY T IM E SOO N T O WORRY ABOUT W HETHER THERE IS GOING TO BE A RES TI TU TI ON AWARD.

ESPECIALLY IN A LAR GE AWARD LIKE THIS. JUST TO SUM U P , I F T HE ESTATE PAID FOR T HE FUNERAL IT WOULDN'T MAKE SEN SE T HAT THE FUNER AL EXP EN SE S WOU LD GO TO T HE NEXT O F KIN BECAUSE THE GUY DIE D AS A RESULT OF THE OFFENSE. SO YOU HAVE T O A LY S OM E COMMON SENSE RESULTS H ER E. IF THERE ARE NO FURTHER QUESTIONS WE WOULD A SK THE COURT TO ANSWER T HE CERTIFIED QUESTIONS IN THE A FFIRMATIVE. THANK YOU .

VERY BRIEFLY , I N RES PONS E TO THIS STA TE'S P OS IT IO N THAT WE ARE A SKING THIS COURT TO T OTAL LY T HROW O UT S UB 3 THAT IS NOT T RUE. WE'RE JUST ASKING THAT IT BE RESTRICTED T O P AS T L OS T I NCOME.

AND YOU ARE NOT MAKING THE ARGUMENT THAT IT SHOULD HAVE BEEN THE NEXT O F K IN O R SHOULDN'T HAVE BEEN T HE ESTATE ? N OR DOES THE C ERTI FI ED QUEST ION TALK ABOUT T HA T. THE C ERTIFIED Q