Defendant Kenneth Blake was married to Charlene Hinton-Blake, who died in 2012. Three of Hinton-Blake’s sisters, including Yvonne Hinton, assisted her with day-to-day care during a four-year period of illness preceding her death. Following Hinton-Blake’s death, it was discovered that Blake was to receive \($260,000\) from a life insurance policy. Blake agreed to give Hinton-Blake’s three sisters half of the insurance proceeds to be divided equally among themselves. To this end, Blake and the sisters prepared a notarized document to evidence their agreement. Yvonne Hinton stated that Blake chose to share the insurance proceeds with the sisters because he knew they had helped care for Hinton-Blake prior to her death. Blake received the insurance proceeds in June 2012 and wrote two checks to himself for \($100,000\) each. He then wrote checks to Yvonne Hinton in the amounts of \($22,000\) and \($100,246.\) The \($22,000\) check cleared but the \($100,246\) check was returned due to insufficient funds. Blake was criminally charged and pled guilty to one count of passing bad checks and was referred for a presentence investigation report. At sentencing, the trial court ordered Blake to pay restitution in the amount of the bad check, \($100,246,\) and imposed a 180-day jail term along with five years of community control sanctions. Blake appeals, challenging only the order of restitution.
PRESIDING JUDGE EILEEN A. GALLAGHER We review an order of restitution under the abuse of discretion standard. An abuse of discretion means more than a mere error of law or judgment; it implies that the trial court’s attitude is unreasonable, arbitrary or unconscionable. [The criminal statute] authorizes a trial court to impose restitution as part of a felony sentence “in an amount based on the victim’s economic loss.” [It] defines “economic loss” as any economic detriment suffered by a victim as a direct and proximate result of the commission of an offense. Blake argues that the act of passing a bad check cannot proximately result in economic loss to the victim when that check does not clear. We disagree. This court has previously upheld restitution in the amount of a bad check pursuant to a conviction for passing bad checks where economic loss was established.
Although the act of passing a bad check can result in economic loss, we find that the trial court abused its discretion in ordering restitution in this instance because the victims suffered no economic loss as their agreement with Blake was not enforceable due to a lack of consideration and that Blake’s act of passing the bad check did not result in a completed gift.
The formation of a contract requires a bargain in which there is a manifestation of mutual assent to the exchange and a consideration. The record from the trial court’s sentencing hearing reflects that there was no consideration to support the underlying agreement between Blake and the victims. The victims’ actions in caring for Blake’s wife prior to her death cannot satisfy the consideration element because past consideration, having already occurred, cannot be a bargainedfor benefit or detriment.
We hold that the trial court abused its discretion in ordering restitution in this instance because Blake’s agreement with the victims was not supported by consideration and his passing of the bad check did not complete a gift. Therefore, the victims did not suffer the type of economic loss required under [the criminal statute] to support an award of restitution. The judgment of the trial court is reversed, and the order of restitution is vacated.
CRITICAL THINKING:
Given that the promised life insurance proceeds were not legally owed to the sisters (due to lack of consideration), should the criminal case for writing a bad check have been prosecuted?
ETHICAL DECISION MAKING:
Was it ethical that the defendant served time for writing a bad check for money he did not legally owe?