CAROLYN SUE BIGELOW, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Carolyn Sue Bigelow appealed the restitution order imposed after her no-contest plea to exploiting the elderly. The Florida appellate court reversed because the State's restitution evidence relied entirely on inadmissible hearsay testimony and unauthenticated bank records.
The court held that hearsay evidence may not be used to determine restitution when there is a proper objection by the defense, and therefore the restitution order must be reversed and remanded for a new hearing where proper evidence of the victims' losses is presented.
“When the amount of restitution is in dispute, the State has the burden of demonstrating by a preponderance of the evidence the amount of the victims' loss.”
Establishes the evidentiary standard the State must meet for restitution determinations
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Join FLexlaw to unlock all legal intelligenceBigelow was employed by Moving Mountains, an agency assisting elderly and disabled persons with shopping and banking tasks. She misappropriated funds …
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PER CURIAM.
Carolyn Sue Bigelow appeals the amount of restitution imposed after she pled no contest to two counts of exploitation of the elderly. We reverse the restitution order because the State’s evidence regarding the amount of money that Bige-low misappropriated was based entirely on hearsay.
Bigelow was employed by Moving Mountains, an agency that assists the elderly and disabled with tasks such as shopping and banking. Bigelow used her position to misappropriate funds from two of Moving Mountains’s clients. At the restitution hearing, the State presented testimony from only one witness, Coleen Spell-man, an employee with Moving Mountains. Over defense counsel’s hearsay objection, Ms. Spellman, who had no personal knowledge of the victims’ losses, was permitted to testify about those losses based upon her review of the victims’ unauthenticated bank records, which were also admitted into evidence. This was error. When the amount of restitution is in dispute, the State has the burden of demonstrating by a preponderance of the evidence the amount of the victims’ loss. Thomas v. State, 581 So. 2d 992, 993 (Fla. 2d DCA 1991). Hearsay evidence may not be used to determine the amount of restitution when there is a proper objection by the defense to such evidence. Id. Accordingly, we must reverse and remand for a new restitution hearing.
REVERSED AND REMANDED.
SAWAYA, ORFINGER and LAWSON, JJ., concur.
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McKOWN v. State, 46 So. 3d 174 (Fla. 4th DCA 2010)…hearsay without the testimony of the records custodian regarding the necessary predicate). “Hearsay evidence may not be used to determine the amount of restitution when there is a proper objection by the defense to such evidence.” Bigelow v. State, 997 So. 2d 1249, 1250 (Fla. 5th DCA 2009). “[T]he State is still not permitted to admit any and all hearsay. Rather, the trial court may only allow hearsay having some minimal indicia of reliability to be injected into the [restitution] proceeding.” Box v. State, 9…
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Bianchini v. State, 77 So. 3d 247 (Fla. 4th DCA 2012)…d 913, 916 (Fla.1997). “ ‘Hearsay evidence may not be used to determine the amount of restitution when there is a proper objection by the defense to such evidence.’ ” McKown v. State, 46 So. 3d 174, 175 (Fla. 4th DCA 2010) (quoting Bigelow v. State, 997 So. 2d 1249, 1250 (Fla. 5th DCA 2009)); see also T.J.N. v. State, 977 So. 2d 770, 773-74 (Fla. 2d DCA 2008) (reversing a restitution award, in part, because the state’s witness, an insurance adjustor, “bas[ed] his testimony on an estimate he had received from a…
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O.W. v. State, 227 So. 3d 654 (Fla. 1st DCA 2017)…', the State failed to meet its burden because the only evidence presented to support the amount , of restitution ordered was the victim’s testimony of what the jeweler estimated the replacement cost of the missing items to be. See Bigelow v. State, 997 So. 2d 1249, 1250 (Fla. 5th DCA 2009) (“Hearsay evidence may not be used to determine the amount of restitution when there is a proper objection by the defense to' such evidence.”). While “[a]n owner of property is generally [*656] qualified to testify as to th…
Authorities Cited
- Thomas v. State, 581 So. 2d 992 (Fla. 2d DCA 1991)