### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

E.J.A., a Child

, Appellant,

v.

STATE OF FLORIDA
, Appellee

.

No. 4D 19

- 3520

[ August 12, 2020 ]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County ; Luis Delgado , Judge; L.T. Case No. 50

- 2019

- CJ

- 001310

- XXXX

- SB

.

Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Rachael Kaiman,

Assistant Attorne y General, West Palm Beach, for appellee.

CONFESSION OF ERROR

P ER C URIAM

.

The child in this case ple d guilty to burglarizing a car. After the victim’s car was located, she had to pay to have it released from a tow lot and to

have it re

- keyed. T he trial court imposed restitution to reimburse the

victim for those costs

. We accept the state’s confession of error and agree that the trial court erred in imposing such restitution when the state did

not establish a causal connection between the child’ s offense or criminal episode and those expenses.

The state alleged that E.J.A. burglarized a vehicle and caused damages

to the vehicle. E.J.A. pled guilty to the burglary count, and the state dropped the criminal mischief count. The plea agreement cal led for

restitution but the amount was left to the trial court to determine.

During the plea hearing, the prosecutor provid ed a factual basis for the plea indicating that E.J.A. was seen entering the victim’s car, which had2 been reported stolen two day s before, and also scratching the car’s paint with a blunt object. During a subsequent restitution hearing, the prosecutor explained that E.J.A. and another girl were observed vandalizing the car. E.J.A. admitted to police that she and the co

defendant “ were riding with friends ” in the victim’s car

.

The victim testified that she left the key in her car when she went to retrieve something from her house. When she returned, the car was gone.

After her stolen vehicle was ultimately found, it was taken to a tow lot and

the victim was forced to pay a $412 towing fee for its release. The car was inoperable and upon the vehicle’s return, the victim discovered the car was

locked. Because the key was never found, the victim was required to additionally pay a $125 locksmith fee.

The trial court imposed restitution for the tow and re

- keying costs, finding “this damage is at least indirectly related to the defendant’s offenses because [the victim] had to get her car back. ” The trial court also

believed that t he restitution was permitted because “[t]he investigation was the result of the delinquent action.”

E.J.A. argues, and the state concedes, that the trial court erred in awarding restitution where the state failed to prove that the victim’s loss

was cause d by E.J.A. ’s criminal act or related to her criminal episode. We

agree.

Trial courts may impose restitution in juven ile cases “for any damage or loss caused by the child’s offense.” § 985.437(2), Fla. Stat. (2019). This

statute has been treated sim ilarly to the statute applicable to adults, section 775.089, Florida Statutes. See L.R.L. v. State , 9 So. 3d 714 , 716 (Fla. 2d DCA 2009). Section 775.089(1)(a), Florida Statutes (2019), provides that absent compelling reasons, the court shall order resti tution for “1. [d]amage or loss caused directly or indirectly by the defendant’s offense; and 2. [d]amage or loss related to the defendant’s criminal episode.”

“U nder the plain language of [section 775.089], the loss or damage to be compensated must be ‘ directly or indirectly’ related to the offense committed by the defendant.” Glaubius v. State , 688 So. 2d 913, 915 (Fla. 1997). “To be causally connected to an offense, the restitution awarded

must arise out of the offense with which the defendant is act ually charged.” Malarkey v. State , 975 So. 2d 538, 540 (Fla. 2d DCA 2008). “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 Sta te as reflected in the information and/or3 by the factual basis for the plea set forth by the State when the plea is

entered.” Id . at 540

- 41. However, “[a] plea agreement may contain provisions that order restitution relating to criminal offenses committe d by the defendant to which the defendant did not specifically enter a plea.” § 775.089(1)(b)2., Fla. Stat. The state has the burden of establishing causation by a preponderance of the evidence. Schuette v. State , 822 So. 2d 1275, 1278

- 79 (Fla. 2002).

Here, the state did not establish that the costs of towing and re

- keying

the car were related to E.J.A. ’s burglary charge and criminal episode. The prosecutor’s statements at the restitution hearing suggested the possibility

that E.J.A. and her friends h ad the key to the victim’s car at some point,

as E.J.A. told an officer they had been “riding with friends” in the car. But

the state did not establish by a preponderance of competent, substantial

evidence that E.J.A. was involved in any theft of the key during the burglary episode or that she had possession of the key . Additionally, although it’s possible the car was towed in order for police to conduct an investigation of E.J.A. ’s crime, there was no evidence supporting that possibility. When the state fails to prove that a defendan t’s criminal episode has a causal connection to the victim’s loss, restitution for that loss is improper. See L.R.L. , 9 So. 3d at 715

- 17 (finding that resti tution

for items stolen from truck was improper where defendant ’s gr and theft charge was based on his knowing possession of a stolen truck , he denied stealing the truck, and there was no evidence that the loss of the items in the truck was related to the defendant’s criminal episode).

Based on the foregoing, we accept th e state’s confession of error, affirm the disposition, and reverse and remand for the trial court to vacate its

restitution order.

Affirmed in part, reversed in part, and remanded

.

M AY
, D AMOORGIAN and C IKLIN
, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.