JAMES B. THOMAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James B. Thomas appealed a restitution order of $8,500 imposed after he pled nolo contendere to burglary and grand theft. The Florida District Court of Appeal reversed, finding the state failed to present sufficient competent evidence to support the restitution amount because hearsay evidence regarding gun values was improperly admitted over the appellant's objection.
The court reversed and remanded, holding that the state failed to meet its burden of demonstrating by a preponderance of the evidence the amount of the victim's loss. Although hearsay evidence may be used to determine restitution if there is no proper objection, the appellant properly objected and the objection should have been sustained. The gun shop owner and employee should have testified and the books should have been presented to allow cross-examination.
[1] A district court has significant discretion to award restitution, and its order will be affirmed unless there has been an abuse of discretion.
[2] A district court abuses its discretion when it acts arbitrarily, without justification, or in contravention of the law.
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Join FLexlaw to unlock all legal intelligence“When the amount of restitution is in dispute, as in this case, the state has the burden of demonstrating by a preponderance of the evidence the amount of the victim's loss.”
Establishes the state's burden of proof regarding restitution amounts
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Join FLexlaw to unlock all legal intelligenceThomas pleaded nolo contendere to burglary of a dwelling and grand theft. He was sentenced to two concurrent two-year prison terms followed by three y…
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SCHOONOVER, Chief Judge.
The appellant, James B. Thomas, after pleading nolo contendere to the charges of burglary of a dwelling and grand theft, challenges a subsequent trial court order directing him to pay $8500 in restitution. We reverse.
The appellant pled nolo contendere to the charges of burglary of a dwelling and grand theft. The trial court accepted his plea and, after adjudicating him guilty of those offenses, sentenced him as a youthful offender to two concurrent sentences of two years imprisonment to be followed by three years of probation. At the conclusion of a restitution hearing, the court ordered him to pay the sum of $8500 in restitution. The appellant filed a timely notice of appeal.
We agree with the appellant’s contention that the state did not present sufficient, competent evidence to support the court’s determination of the amount of restitution. Section 775.089(l)(a), Florida Statutes (1987), requires the trial court to impose restitution unless it finds reasons not to do so. When the amount of restitution is in dispute, as in this case, the state has the burden of demonstrating by a preponderance of the evidence the amount of the victim’s loss. The state did not meet its burden in this case.
The victim testified at the restitution hearing that twenty guns had been taken from her residence and that these guns had never been recovered. The victim was unable to give her own opinion of the value of the weapons. She instead presented slips of paper indicating the serial numbers and the value of the guns. These slips of paper were obtained by the victim from the owner and an employee of a gun shop. The figures had been written on paper after the two men referred to certain books. The appellant’s objection to this evidence on the basis of hearsay was denied, the evidence was admitted, and the appellant was ordered to pay $8500 in restitution.
While hearsay evidence may be used to determine the amount of restitution if there is no proper objection to that evidence, the appellant in this case made a proper objection, and it should have been sustained. Flanagan v. State, 536 So. 2d 275 (Fla. 2d DCA 1988); Mansell v. State, 498 So. 2d 604 (Fla. 2d DCA 1986). See also Fleming v. State, 547 So. 2d 668 (Fla. 1st DCA 1989). The gun shop owner and his employee might have been qualified to give an opinion as to the value of the guns, and the books they referred to might have supplied the proper information. However, the men did not testify and the books were not presented to the court, and the appellant, therefore, had no way to question the men or examine the books used to make this determination.
We, accordingly, reverse and remand for another hearing to determine the amount of restitution.
Reversed and remanded.
SCHEB and DANAHY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (20 total)
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Williams v. State, 850 So. 2d 627 (Fla. 2d DCA 2003)…if there is no objection to the evidence. However, as Williams argues and the State concedes, Williams made a proper objection to the evidence which should have been sustained. See Moore v. State, 694 So. 2d 836 (Fla. 2d DCA 1997); Thomas v. State, 581 So. 2d 992 (Fla. 2d DCA 1991). Therefore, this court must reverse and remand for a new restitution hearing. See Sherwood v. State, 832 So. 2d 926 (Fla. 2d DCA 2002) (reversing for a new restitution hearing where award was based on improper hearsay evidence con…
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Moore v. State, 694 So. 2d 836 (Fla. 2d DCA 1997)…that were not produced at the restitution hearing. In fact, the State failed to present any documentary evidence. Given the defendant’s timely objection, this hearsay evidence was inadmissible to prove the amount of restitution. See Thomas v. State, 581 So. 2d 992 (Fla. 2d DCA 1991). Because the State failed to meet its burden of demonstrating by a preponderance of the evidence the amount of the loss, we reverse the order imposing restitution and remand for another hearing. See Williams v. State, 645 So. 2d 5…
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Delks v. State, 622 So. 2d 624 (Fla. 2d DCA 1993)…ow many apartments were actually rented at the time of the crime. Furthermore, the 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 eviden…
Previewing 3 of 20 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Flanagan v. State, 536 So. 2d 275 (Fla. 2d DCA 1988)
- Mansell v. State, 498 So. 2d 604 (Fla. 2d DCA 1986)
- In the Interest of J.J.C., 498 So. 2d 604 (Fla. 2d DCA 1986)
- Fleming v. State, 547 So. 2d 668 (Fla. 1st DCA 1989)