IN THE INTEREST OF F.J.O., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A juvenile who pleaded nolo contendere to sexual battery appeals a restitution order. The appellate court vacates the order, finding the state failed to prove by preponderance of the evidence that venereal warts contracted by the victim resulted from the defendant's conduct.
The appellate court held that the state failed to meet its burden of demonstrating that the victim's injury was caused by the defendant's conduct, and therefore the restitution order must be vacated. The trial court was required to make an explicit determination that the victim's injury was caused by the defendant's behavior before ordering restitution.
[1] The state bears the burden of proving by a preponderance of the evidence that a victim's loss was sustained as a result of the offense for which restitution is sought.
[2] A trial court must determine that a victim's injury was caused by the defendant's behavior before ordering restitution.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense is on the state attorney.”
Establishes the state's burden of proof in restitution cases under Florida Statute § 775.089(7)
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Join FLexlaw to unlock all legal intelligenceThe victim's mother testified that her son contracted venereal warts while being victimized by the appellant and sought medical treatment for their re…
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PARKER, Judge.
Appellant, a juvenile, pled nolo conten-dere to sexual battery. He appeals the trial court’s order imposing restitution. We vacate the order and remand for further proceedings.
Of the two issues concerning restitution which appellant raises, we find merit in only one. Appellant contends that the state failed to carry its burden of proof in this case. Section 775.089 provides, in pertinent part:
(7) Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense is on the state attorney. The burden of demonstrating the financial resources of the defendant and the financial needs of the defendant and his de pendents is on the defendant. The burden of demonstrating such other matters as the court deems appropriate is upon the party designated by the court as justice requires.
§ 775.089(7), Fla.Stat. (1987).
The victim’s mother testified that at the time her son was being victimized by the appellant, she discovered that her son was suffering from venereal warts. She expressed her opinion that he contracted them from the appellant. She also testified as to the cost of medical treatment for removal of the warts. The state presented no medical evidence to show the cause of venereal warts, nor was there any testimony indicating that the appellant suffered from this malady. Nevertheless, the trial court ordered the appellant to pay restitution in an amount equal to the costs incurred by the mother in procuring medical treatment for the victim. We believe the state failed to demonstrate by the preponderance of the evidence that the loss was sustained by the victim as a result of the offense. See § 775.089(7), Fla.Stat. (1987); D.N. v. State, 529 So. 2d 1217, 1224 (Fla. 1st DCA 1988). See also State v. Williams, 520 So. 2d 276 (Fla.1988).
The appellant also points out that the transcript of the restitution hearing lacks a determination by the trial court that the victim’s injury was caused by the appellant’s behavior. The trial court should have made such a determination before ordering restitution. See Williams; D.N.
Order of restitution vacated and remanded for further proceedings.
RYDER, A.C.J., and LEHAN, J., concur.
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Citator
Cited By
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Cooley v. State, 686 So. 2d 732 (Fla. 2d DCA 1997)…ial court did not make a determination that Cooley caused the victim’s broken leg. Therefore, we are compelled to remand with instructions for the trial court to determine whether the victim’s injury was a result of the battery. See F.J.O. v. State, 548 So. 2d 306 (Fla. 2d DCA 1989) (error in failing to make a determination that the victim’s injury was the result of the criminal offense). Reversed and remanded. CAMPBELL, A.C.J., and DAKAN, STEPHEN L., Associate Judge, concur.…
Authorities Cited
- State v. Williams, 520 So. 2d 276 (Fla. 1988)
- In the Interest of D.N. v. State, 529 So. 2d 1217 (Fla. 1st DCA 1988)