FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-3240

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MARK ANTHONY TOLBERT,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Duval County.

Angela M. Cox, Judge.

April 22, 2019

WINOKUR, J.

Mark Anthony Tolbert appeals a restitution order. Tolbert 

argues that the trial court abused its discretion in ordering him 

to pay the victim the outstanding balance owed on a loan used to 

finance the purchase of the vehicle he destroyed. We find that the 

proper measurement of restitution here was the vehicle’s fair 

market value at the time of the crime. As a result, we reverse.

I.

In April 2016, Tolbert was charged with aggravated fleeing 

and eluding of a law enforcement officer and driving under the 

influence causing property damage. Tolbert crashed a 2013 

Toyota Yaris, owned by his ex-girlfriend Ms. Schoenfeld, into a 

ditch. The vehicle was totaled.
2

In May 2016, Tolbert entered a negotiated plea, which 

included a reservation of jurisdiction in order to determine the 

amount of restitution. During the restitution hearing, Schoenfeld 

testified that she purchased the vehicle three years before the 

incident for approximately $14,000. Schoenfeld claimed that the 

vehicle was purchased used, in fair condition, and with no 

structural damage. She also testified that she financed the 

vehicle’s purchase through a bank loan. After the incident, 

Schoenfeld owed the bank $14,694.60 in order to pay off the loan. 

Schoenfeld’s insurance company paid a portion of the payoff 

amount, with Schoenfeld owing the bank an outstanding balance 

of $11,892.76.

For his part, Tolbert presented the expert testimony of 

Hunter Livingston, the owner of a local car dealership. 

Livingston estimated the value of the vehicle at $5,850. 

Livingston also consulted the Kelley Blue Book, a consumer 

vehicle purchase guide, and estimated the retail value of a 2013 

Toyota Yaris at approximately $8,000. Livingston opined that the 

fair market value of Schoenfeld’s vehicle was approximately 

$6,100.

At the close of the hearing, the State argued that Tolbert 

owed Schoenfeld the balance owed on the bank loan. In contrast, 

defense counsel argued that Tolbert simply owed the fair market 

value of the vehicle. The trial court then entered a restitution 

order in the amount of Schoenfeld’s outstanding loan balance, 

$11,892.76.

II.

Florida law provides for restitution to a victim for damage or 

loss caused directly or indirectly by the defendant’s offense, and

for damage or loss related to the defendant’s criminal episode. 

§ 775.089(1)(a), Fla. Stat. The State has the burden of proving 

the amount of restitution owed by a preponderance of the 

evidence. § 775.089(7), Fla. Stat. The amount of restitution 

ordered must be supported by competent, substantial evidence. 

D.J.R. v. State, 139 So. 3d 458, 459 (Fla. 1st DCA 2014). 

Typically, fair market value is the appropriate measure of 

restitution. State v. Hawthorne, 573 So. 2d 330, 333 (Fla. 1991).
3

While intended to make the victim whole, “restitution is not 

intended to provide a victim with a windfall.” Rodriguez v. State, 

956 So. 2d 1226, 1232 (Fla. 4th DCA 2007) (citing Glaubius v. 

State, 688 So. 2d 913, 916 (Fla. 1997)). Therefore, restitution may 

not exceed the damage caused by the defendant’s criminal 

conduct. D.J.R., 139 So. 3d at 459.

III.

A restitution order is reviewed for abuse of discretion. Id.

First, the State argues that the trial court did not abuse its 

discretion because there was competent, substantial evidence to 

support the trial court’s restitution order. The State relies on its 

introduction of documentation verifying the remaining balance 

owed on the loan, Schoenfeld’s testimony of the approximate 

purchase price of the vehicle, as well as the condition of the 

vehicle at the time it was destroyed by Tolbert. 

Notwithstanding the credibility and competency of 

Schoenfeld’s testimony and the State’s evidence, the State is still 

required to show a causal relationship between the conduct and 

the restitution. Hawthorne, 573 So. 2d at 333; L.A.D. v. State, 616 

So. 2d 106, 108 (Fla. 1st DCA 1993). The record shows that the 

State did not meet this burden.

Schoenfeld entered into a loan agreement to finance the 

purchase of the automobile. Schoenfeld’s insurance provider 

made a partial payment to the bank, but a balance remained. The 

State, however, did not present evidence connecting the balance 

owed to Tolbert’s criminal conduct. Schoenfeld’s loan pre-dated 

the incident and reflected the money owed to the bank in 

exchange for the purchase of the vehicle. Even if Tolbert had not 

destroyed the vehicle, Schoenfeld would still be obligated to pay 

off the loan. Therefore, the State cannot prove that, “but for” 

Tolbert’s conduct, Schoenfeld would not owe $11,892.76.

Second, the State asserts that fair market value is not the 

only standard for ascertaining restitution. It is true that “a court 

is not tied to fair market value as the sole standard for 

determining restitution amounts.” Hawthorne, 573 So. 2d at 333. 
4

Deviations from fair market value, however, have been 

recognized in limited circumstances, such as the “theft of a family 

heirloom, a new automobile, or an older car that had been 

repaired shortly before the theft.” Davis v. State, 244 So. 3d 374, 

377 (Fla. 4th DCA 2018). The common thread of these exceptions 

is that the value of the stolen property itself consists of more than 

just its fair market value.

This case does not trigger these exceptions. The loan balance 

owed is the remaining amount of the purchase price covered by 

the bank in order to finance Schoenfeld’s purchase of the vehicle. 

The State failed to show that the money owed on the bank loan 

made the vehicle worth more than just its fair market value. 

Thus, it was improper for the trial court to order restitution in 

excess of that value.

IV.

Restitution is designed to compensate a victim for a loss 

incurred as a result of a defendant’s criminal conduct. The task of 

making of victim whole, however, is constrained by the legal 

requirements that a victim not receive a windfall and that a 

defendant not pay in excess of the damage he caused. While it 

may seem unfair that Schoenfeld owes money on a vehicle she no 

longer possesses, the balance is a product of Schoenfeld’s 

financial decision. Tolbert’s responsibility lies as far as his

damage to the vehicle. In this case, that amount is reflected by 

the vehicle’s fair market value. Accordingly, we reverse and 

remand for restitution proceedings consistent with this opinion.

REVERSED and REMANDED.

WINSOR, J., concurs with opinion; MAKAR, J., dissents with 

opinion.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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5

WINSOR, J., concurring.

This case is about the value of the loss. Courts have 

discretion in how they award restitution, but all awards remain 

limited by statute, and “[u]nder the plain language of the statute, 

the loss or damage to be compensated must be ‘directly or 

indirectly’ related to the offense.” Glaubius v. State, 688 So. 2d 

913, 915 (Fla. 1997) (referencing § 775.089(1)(a)). Therefore, 

although the court announced in State v. Hawthorne that trial 

courts must consider compensation, rehabilitation, deterrence, 

and so forth, “[t]his does not mean [] that a trial court can 

arbitrarily award any amount of restitution it deems adequate.” 

Glaubius, 688 So. 2d at 915 (citing State v. Hawthorne, 573 So. 2d 

330 (Fla. 1991)). Instead, the court must focus on the loss. The 

question in this case, then, is whether the unsecured portion of a 

car loan constitutes “damage or loss” the defendant caused. I 

conclude that it does not, and I join the court’s opinion.

In State v. Williams, the Florida Supreme Court noted that 

section 775.089(1)(a)’s “directly or indirectly” limitation precluded 

restitution for damages that “would have occurred with or 

without” the offense. 520 So. 2d 276, 277 (Fla. 1988) (“Section 

775.089(1)(a) is not ambiguous.”); accord Glaubius, 668 So. 2d at 

915 (explaining that “to order restitution under the statute, the 

court must find that the loss or damage is causally connected to 

the offense”). Here, to the extent a preexisting, outstanding loan 

balance is properly considered “damage or loss,” it is damage or 

loss that “would have occurred with or without” Tolbert’s crime. 

Relying principally on dicta in a Hawthorne footnote about 

new-car depreciation, the dissent does include the loan balance as 

part of the “damage or loss.” But the Hawthorne footnote attaches 

to the court’s discussion about calculating depreciation, which of 

course goes to the car’s value. 573 So. 2d at 333 & n.5. Here, 

there is no real dispute about the car’s value. Regardless, it is one 

thing to suggest that someone causes a $20,000 loss when they 

steal a car bought minutes earlier for $20,000. It is quite another 

to say someone who steals a $6,000 car causes not only the loss of 

the car, but is also responsible for any loan balance—so long as 

the loan was partially secured by the car. Cf. Lewis v. State, 238 

P.3d 833 (Nev. 2008) (reversing $5,200 restitution award that 
6

“included the $4,500 loan balance paid by the victim’s insurance 

company and the $700 paid by the victim to reacquire the car” 

because there was insufficient evidence that the car was worth 

$5,200).

Hawthorne observed “that in most instances the victim’s loss 

and the fair market value of the property at the time of the 

offense will be the same.” 573 So. 2d at 333; accord Mansingh v. 

State, 588 So. 2d 636, 638 (Fla. 1st DCA 1991). This is one of 

those instances. There is nothing particularly unique about 

having a partially secured car loan. And if the victim lost a 

$6,000 car and got $6,000 in restitution, she could acquire 

another $6,000 car.1 That would leave the victim just where she 

began: with a $6,000 car and a $12,000 loan. In other words, the 

restitution award would cover her “damage or loss.” If, on the 

other hand, the victim got the value of her car plus the unsecured 

portion of her loan (roughly $12,000) and bought a $6,000 car, she 

would come out $6,000 ahead. This would result in a windfall, 

and as the majority opinion notes, restitution awards are not 

supposed to do that.2 Glaubius, 688 So. 2d at 916 (noting that 

 1 This is all theoretical because, as the dissent notes, victims 

often do not receive the restitution courts order. And even if a 

restitution award is promptly paid, it cannot always cure the 

serious, noneconomic burdens the victim has suffered (and will 

suffer). Here, even if the victim received a perfectly comparable 

car immediately, she still would have suffered great harm in 

going through this whole ordeal. But the legal issue in this case is 

the value of the loss the appellant caused, which the Florida 

Supreme Court has held is ordinarily “the fair market value of 

the property at the time of the offense.” Hawthorne, 573 So. 2d at 

333. 

2 Incidentally, if we were to go down the road of allowing 

windfalls in this way, we should consider some limiting principle. 

What if a victim owed $50,000 on an $8,000 car? Retail car loans 

often fold in earlier car loans, meaning borrowers frequently owe 

far more than their cars’ values. See Federal Trade Commission, 

Consumer Information, Auto Trade-ins and Negative Equity, 

available at https://www.consumer.ftc.gov/articles/0257-autotrade-ins-and-negative-equity (explaining negative-equity car 
7

requiring a defendant to pay more than “damages his criminal 

conduct caused” “would raise significant due process concerns 

regard the validity of section 775.089”). I concur.

MAKAR, J., dissenting.

This restitution case involves an upside-down Yaris. During 

his high-speed attempt to elude police officers, an inebriated 

Mark Anthony Tolbert drove at times in excess of 100 mph, ran 

stoplights and stop signs, and nearly collided with roadside 

objects. It didn’t end well: Tolbert crashed the pilfered 2013 

Toyota Yaris in a ditch, rendering the vehicle a total loss. He was 

charged with and pled guilty to two charges: aggravated fleeing 

and eluding of a law enforcement officer and driving under the 

influence causing property damage.

Tolbert had taken the vehicle from the victim, an exgirlfriend who—at about the time of the incident in early 2016—

owed a balance of $14,694.60 on her auto loan with Santander 

Bank. The loan was upside-down because the amount due 

exceeded the street value of the Yaris. At the time of the 

restitution hearing, the balance due was reduced to $11,892.76, 

which reflected various adjustments for insurance proceeds that 

had been paid. The victim had agreed to the loan’s high interest 

rate (14%), which she characterized as “high robbery,” because 

she needed a car and had poor credit at the time (she had since 

paid on the loan for about two and one-half years). The State 

sought, as restitution, the current balance then due. Tolbert’s 

expert testified that the Yaris, which was a standard model with 

no frills and assumed to be in “good” condition at the time of the 

crash, was worth about $6,100 wholesale and $8,000 retail.

The State argued that Tolbert’s criminal escapade caused 

the victim to lose the entire value and the use of her vehicle, and 

that because the purpose of restitution is to make her whole, the 

trial judge should award the remaining balance due on the auto 

 

loans). What if a victim had an unsecured loan—say, from a 

family member—but used the funds to buy the car? What if a 

victim folded her car loan and other consumer debt into a home 

equity loan? 
8

loan. Tolbert argued that the victim was only entitled to market 

value, which its expert said was much lower, in part, because the 

victim—not Tolbert—had “made a very bad deal” in accepting a 

high interest rate. The State countered that due to Tolbert’s 

actions not only was the victim without a means of transportation 

but that she “is still having to pay for a vehicle she no longer 

has.”

In deciding what to do, the trial judge noted that restitution 

“is an opportunity to make amends and to make the victim of a 

crime whole, at least to the extent it is possible to do so.” As to 

this case, she ruled that “the criminal conduct of the defendant 

caused the victim to have her car totalled” and that “requiring 

the defendant to pay $11,892.76 is not in excess of the damage he 

caused.”

On appeal, Tolbert says the victim was entitled only to a fair 

market valuation of the vehicle, which is the general, but not 

exclusive, measure for assessing a victim’s losses. Florida’s 

restitution jurisprudence is flexible and allows for departures 

from a strictly fair market value approach if the goals of criminal 

justice or the equities in a case are better served by fully 

compensating the victim via another methodology. As our 

supreme court said in Spivey v. State, the “purpose of restitution 

is not only to compensate the victim, but also to serve the 

rehabilitative, deterrent, and retributive goals of the criminal 

justice system.” 531 So. 2d 965, 967 (Fla. 1988). Relying on 

Spivey, the supreme court in State v. Hawthorne emphasized that 

although “in most instances the victim's loss and the fair market 

value of the property at the time of the offense will be the same” 

it could “foresee instances when the market value of the property 

would not adequately reflect the victim's loss or when the 

consideration of the percentage of depreciation would be 

inequitable.” 573 So. 2d 330, 333 (Fla. 1991) (footnotes omitted). 

Relying on Hawthorne, the supreme court emphasized that a 

“trial court has discretion to take into account any appropriate 

factor in arriving at a fair amount which will adequately 

compensate a victim for his or her loss and further the purposes 

of restitution.” Glaubius v. State, 688 So. 2d 913, 915 (Fla. 1997) 

(emphasis added). Far from dicta, our supreme court established 

that discretion exists for establishing a “fair amount” apart from 
9

fair market value, and has repeatedly said the “trial court is in 

the best position to determine how imposing restitution may best 

serve [the goals of rehabilitation, deterrence, and retribution] in 

each case.” Id.

One of its examples from Hawthorne involved a new 

automobile that is stolen immediately after its purchase. 573 So. 

2d at 333 n.5. Because a new vehicle “depreciates considerably as 

soon as the purchaser drives it off the lot,” restitution based on 

traditional fair market value would lead to an “inequitable 

result” and thereby “not serve the restitution statute's purpose of 

compensating the victim for the loss sustained as a result of the 

offense.” Id. In these situations, a trial court “is not tied to fair 

market value as the sole standard for determining restitution 

amounts, but rather may exercise such discretion as required to 

further the purposes of restitution.” Id. at 333 (emphasis added). 

In other words, a trial court is within its discretion in assessing 

restitution by considering the overall impact of an offender’s 

criminal episode versus a strictly market-based approach. See § 

775.089 (1)(a), Fla. Stat. (2019) (trial court “shall order the 

defendant to make restitution to the victim for: 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.”) (emphasis added). Both Spivey and Hawthorne

emphasized that the “trial court is best able to determine how 

imposing restitution may best serve those goals in each case.” 

Hawthorne, 573 So. 2d at 333 (quoting Spivey) (emphasis added). 

The takeaway is that trial courts have discretion to depart 

from fair market valuations where the circumstances warrant 

doing so, tempered by judicially-imposed limitations. In this 

regard, this Court long ago held that “absent circumstances 

tending to show that [fair market value] does not adequately 

compensate the victim or otherwise serve the purpose of 

restitution, such as theft of a family heirloom or a new 

automobile, . . . or theft of an older car that had been repaired 

shortly before the theft, as was the case in Hawthorne, the 

amount of restitution should be established through evidence of 

[fair market value] at the time of the theft.” Mansingh v. State, 

588 So. 2d 636, 638 (Fla. 1st DCA 1991) (citation omitted). 
10

Similarly, in Dickens v. State, which involved a stolen Chevrolet 

that was driven into and found at the bottom of a bay, the Second 

District upheld a restitution award of $1,900 reflecting the 

purchase price of the vehicle, the cost of repairs and 

improvements during ownership, and the cost of removing the car 

from the bay. 556 So. 2d 782, 783 (Fla. 2d DCA 1990). In doing so, 

the Second District distinguished and rejected application of the 

“rigidities of proof” used in determining market value as an 

element of a crime when restitution awards are determined. Id. 

at 784. A more flexible standard is appropriate because 

“[l]imiting the trial court's discretion to a determination of the 

fair market value of the property involved at the time of the 

crime does not further its ability to serve the goals of the 

restitution program.” Id. Notably, the supreme court in 

Hawthorne “approve[d] the reasoning of the district court in 

Dickens,” rejecting this Court’s more restrictive approach at that 

time. Hawthorne, 573 So. 2d at 333.

Here, the victim lost the entire value and use of her car and 

she still owed a substantial amount on the car loan; presumably 

she has borne the expense of the loan plus the personal and 

financial burden of alternative transportation (unlike the victim 

in Hawthorne, the victim here did not seek the latter expenses). 

573 So. 2d at 331. Tolbert says the loan’s terms are the victim’s

fault and that he shouldn’t bear any responsibility for her bad 

business decision; it would be inequitable for him to shoulder her 

loss. But didn’t our supreme court in Hawthorne say it would be 

inequitable to not provide restitution for the rapid depreciation of 

a newly-purchased car? Why would buying a new car, that 

everyone knows depreciates instantly, be any less of a bad 

business decision than buying a used one at a higher interest 

rate? Why make offenders pay an amount exceeding fair market 

value in a new car case but not in a used/underwater car case? 

And shouldn’t the amount of full restitution be considered in 

some cases from the victim’s financial perspective or 

predicament? Suppose Tolbert wanted to use the victim’s car, 

said that he would probably crash and total it in a Demolition 

Derby show that night, and asked what amount he could pay her 

so that she would be made whole? She’d probably tell him to pay 

off her loan, provide her with an equivalent car immediately, or 

the like. Why is fair market value the only legitimate barometer 
11

of restitution in such a case? Why not a measure more closely 

approximating the value from the victim’s perspective? Granted, 

restitution is not designed to provide a windfall to victims, but 

there is no evidence that the victim here entered the car loan 

with the expectation that if the Yaris was stolen and destroyed 

that she’d somehow benefit financially; far from it. Presumably 

she’d pay off the outstanding car loan and start anew, though she 

is not required to do so; theoretically, an exact replica of her 

Yaris might be available at the lowest estimate of fair market 

value, but how would purchasing it, months or years later 

when—if ever—Tolbert actually pays restitution, account for the 

loss of use and continued payment on the loan in the interim? On 

the flip side, suppose that Tolbert knew he’d only be responsible 

in restitution for $6,100 for his criminal escapade but that it 

would cause far more economic injury to the victim/former 

girlfriend. Why should he not be accountable for the greater loss?

All this said, the trial judge was on the right track to make 

the victim whole, and her decision to use the $11,892.76 loan 

amount as the basis for doing so does not jump out as an abuse of 

discretion on this record, i.e., not arbitrary, fanciful, or 

unreasonable. Spivey, 531 So. 2d at 967. If some adjustment is 

not allowed for victims with upside-down car loans, then full 

restitution becomes somewhat illusory and would be regressive in 

its impact on those struggling economically. The trial judge did 

not err in following what the electorate has now 

constitutionalized as the right of victims “to full and timely 

restitution in every case and from each convicted offender for all 

losses suffered, both directly and indirectly, by the victim as a 

result of the criminal conduct.” Art. I, § 16(B)(9), Fla. Const. 

(2019) (emphasis added).

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Andy Thomas, Public Defender, and Justin F. Karpf, Assistant 

Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Julian E. Markham, 

Assistant Attorney General, Tallahassee, for Appellee.