DEBRA GOMES MOREL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida District Court of Appeal reversed a restitution order requiring a probationer to pay $16,800 to victims, holding that the state failed to meet its burden of proving damages beyond the $1,200 the defendant admitted taking.
The court reversed the $16,800 restitution order, holding that restitution cannot exceed the amount of damages directly caused by the defendant's conduct, and the burden of proving such damages by a preponderance of the evidence rests on the state.
[1] A court must order restitution to victims for damages or loss caused directly or indirectly by a defendant's offense as a condition of probation.
[2] A condition of probation requiring a probationer to pay money to a victim cannot exceed the amount of damages caused by the criminal conduct.
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Join FLexlaw to unlock all legal intelligence“A condition of probation requiring a probationer to pay money to, and for the benefit of, .the victim of his crime cannot, however, require payment in excess of the amount of damages the criminal conduct caused the victim.”
Establishes the fundamental legal principle limiting restitution amounts to actual damages caused by the defendant's conduct.
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Join FLexlaw to unlock all legal intelligenceDebra Morel pled nolo contendere to grand theft after admitting to taking money from her employer's business for approximately 28 weeks. The trial cou…
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PER CURIAM.
The appellant, Debra Gomes Morel, challenges an order requiring her to make restitution in the amount of $16,800 as a condition of her probation. We find that the court erred in determining the amount of restitution and, accordingly, reverse.
The appellant pled nolo contendere to an information charging her with grand theft in violation of section 812.014(2)(b), Florida Statutes (1985). She was adjudicated guilty of this offense and placed on probation for a period of five years. One of the conditions-of her probation required her to make restitution to the victims of the crime. At the conclusion of a hearing to determine the amount of restitution, the court found that the appellant admitted taking money from the victims for twenty- eight weeks. He also found that she averaged taking approximately $600 per week and that she had taken a total of $16,800. Based upon these findings, the court ordered the appellant to repay the victims a total of $16,800. This timely appeal followed.
Absent reasons not material in this case, section 775.089(l)(a), Florida Statutes (1985), requires the trial court to order restitution to the victims of crimes for damages or loss caused directly or indirectly by a defendant’s offense. Section 775.-089(l)(a) also requires the court to make the payment of restitution a condition of probation in accordance with section 948.-03(l)(e), Florida Statutes (1985).
A condition of probation requiring a probationer to pay money to, and for the benefit of, .the victim of his crime cannot, however, require payment in excess of the amount of damages the criminal conduct caused the victim. Fresneda v. State, 347 So. 2d 1021 (Fla.1977). See also Wilson v. State, 452 So. 2d 84 (Fla. 1st DCA 1984). If the parties cannot agree on the amount of the victims’ damages, as in this case, the court must resolve the dispute, and the burden of demonstrating such loss by a preponderance of the evidence is on the state. § 775.089(7), Fla.Stat. (1985). The state did not meet its burden in this case.
The appellant, who was responsible for the daily receipts of the victims’ business, admitted taking $1200 from the victims, and an auditor testified that shortages in excess of $25,000 existed during the critical time periods. It was established, however, that some of the shortages were the result of the victims’ withdrawal of funds from the daily receipts prior to bank deposits being made. Although the victims properly entered these amounts on slips of paper when the amounts were withdrawn, the slips were not delivered to the auditor for use in the audit, or available for use at the restitution hearing. - Without this evidence the court could not determine how much of the shortage may have been caused by the appellant’s crime. Additionally, the auditor testified that there was no audit trail and no procedure he could use to determine who took the money or how it was taken. The state, accordingly, did not carry its burden of establishing by a preponderance of the evidence that the appellant caused the victims damages in the amount of $16,800. See Thomas v. State, 480 So. 2d 158 (Pla. 1st DCA 1985). Since the state only proved damages to the victims in the amount of $1200, we reverse and remand with directions to amend the restitution order to reflect the amount of restitution to be $1200.
Reversed and remanded with instructions.
CAMPBELL, C.J., and SCHEB and SCHOONOVER, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Delks v. State, 622 So. 2d 624 (Fla. 2d DCA 1993)…hearsay evidence was inadmissible to prove the amount of restitution in this case because Delks made a timely objection to this hearsay evidence. See Thomas v. State, 581 So. 2d 992, 993 (Fla. 2d DCA 1991). This case is similar to Morel v. State, 547 So. 2d 341 (Fla. 2d DCA 1989) in that the state was able to prove only the amount of damage which the defendant admitted causing. Even though there was alleged documentary evidence, it was not available at the hearing. This court concluded that the state faile…
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Williams v. State, 645 So. 2d 594 (Fla. 2d DCA 1994)…is violates several of our cases which hold that the state has not met its burden of demonstrating loss by a preponderance of the evidence where no documentary evidence is presented. Delks v. State, 622 So. 2d 624 (Fla. 2d DCA 1993); Morel v. State, 547 So. 2d 341 (Fla. 2d DCA 1989). Moreover, it is not clear from the record just what the final restitution amount ordered was. On March 24, 1993, the court held a restitution hearing at which it orally ordered appellant to pay $2,319.24 in restitution, represe…
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Gilileo v. State, 923 So. 2d 612 (Fla. 2d DCA 2006)…ce. Restitution must be proved by substantial competent evidence.” Koile, 902 So. 2d at 824 (citations omitted); see also § 775.089(7). However, the restitution amount may not exceed the damage the criminal conduct caused the victim. Morel v. State, 547 So. 2d 341, 342 (Fla. 2d DCA 1989) (citing Fresneda v. State, 347 So. 2d 1021 (Fla.1977)). The issue is whether the $30,000 restitution figure imposed by the trial court was an abuse of discretion. We conclude that it was. At least two aspects of the court’s…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fresneda v. State, 347 So. 2d 1021 (Fla. 1977)
- Wilson v. State, 452 So. 2d 84 (Fla. 1st DCA 1984)
- Thomas v. State, 480 So. 2d 158 (Fla. 1st DCA 1985)