MYRA BIANCO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 1992-03-04
No. 90-2996
DELL and WARNER, JJ., concur.
594 So. 2d 861 Florida District Court of Appeal, Fourth District (1992) Caution
Cited by 4 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Myra Bianco appealed her sentence following guilty pleas to multiple counts of grand theft involving fraud and misappropriation of funds in home construction contracts. The court reversed and remanded for modification of restitution amounts owed to two victims, finding the trial court erred in calculating damages caused directly by the crimes.


Holding

The court reversed the restitution amounts for two victims and remanded for modification. For Jill Harrison, the award should be reduced from $82,249.45 to $71,683.75 because her increased mortgage and rental expenses were not caused by the crime. For the Tullochs, the total restitution should be reduced by $10,735.00 for items not required by contract, anticipated expenses not incurred, and losses not resulting from the theft.


Headnotes

[1] The state bears the burden of proving by a preponderance of the evidence that victims' claims were directly or indirectly caused by the commission of the offense.

[2] Restitution awards must be supported by evidence demonstrating that the losses claimed were a direct or indirect result of the defendant's criminal conduct.

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Key Quotes

“The state had the burden of demonstrating, by a preponderance of the evidence, that the victims' claims were directly or indirectly caused by the commission of the offense in question.”

Establishes the legal standard for restitution awards—the prosecution must prove a causal nexus between the crime and the victim's losses.

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Facts & Procedural History

Appellant pleaded guilty to multiple counts of grand theft involving claims of fraud and misappropriation of funds arising from contracts for construc…

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Opinion of the Court
STONE, Judge.

STONE, Judge.

We reverse appellant’s sentence and remand for modification of the restitution provisions in the order of probation as to the amount of the payment due to two of the numerous victims.

The appellant pled guilty to multiple counts of grand theft involving claims of fraud and misappropriation of funds arising out of contracts for the construction and sale of homes by appellant’s company. The trial court held an evidentiary hearing prior to sentencing at which it determined the amount of restitution appellant owed each victim.

We appreciate the difficulty encountered by the trial court in sorting through the sometimes ambiguous, duplicative, and questionable admissions, claims, and figures in this evidence. We also recognize that the degree of proof normally introduced in a restitution hearing will not be as extensive as in a civil trial. Nevertheless, error does appear upon the face of this record as to the amounts appellant owed victims Jill Harrison and Mr. and Mrs. Tul-loch. There is no error as to the amounts deemed payable to the other victims.

The state had the burden of demonstrating, by a preponderance of the evidence, that the victims’ claims were directly or indirectly caused by the commission of the offense in question. State v. Williams, 520 So. 2d 276 (Fla.1988); Fresneda v. State, 347 So. 2d 1021 (Fla.1977); § 775.089, Fla.Stat. (1989).

As for the sum due to Jill Harrison, the evidence did not show that Ms. Harrison’s increased mortgage and rental expense were caused by appellant’s crime. However, we do find record support for $71,-683.75 of the $82,249.45 payment ordered. Upon remand, the sum payable is to be reduced by the difference accordingly.

As for the Tullochs’ claims, several adjustments must be made in the amount payable: (1) the $350.00 paid for electrical fixtures should be deducted, as the contract expressly provided that appellant was not required to provide electrical fixtures; (2) $300.00 should be deducted, since such amount exceeded the contract’s allowance for a water softener; (3) $3,000.00 which appellant charged for anticipated landfill, but did not result in any expense to appellant, should be deducted, since the record does not reflect that the Tullochs incurred an additional expense by having to purchase landfill; and (4) $5,000.00 in additional mortgaging expense and $2,085.00 in rent incurred should be deducted, since such amounts did not result from appellant’s theft. On remand, those sums, totaling $10,735.00, should be deducted from the Tullochs’ restitution award. Upon motion, the trial court should resolve as a fact whether a $9,361.02 credit remains in escrow with the title company. If that sum was not paid to, or for, the defendant, it is not a loss resulting from appellant’s theft, and should be deducted from the amount payable to the Tullochs.

In all other respects, the sentence is affirmed. We remand for modification of the probation order accordingly.

DELL and WARNER, JJ., concur.


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Cited By

  • Onel Montalvo v. State, 705 So. 2d 984 (Fla. 3d DCA 1998)
    …itution order due to the lack of any probative evidence demonstrating the amount ordered constituted “ ‘damage or loss caused directly or indirectly by the defendant’s offense’” of grand theft) (quoting § 775.089(1)(a), Fla. Stat.); Bianco v. State, 594 So. 2d 861, 862 (Fla. 4th DCA 1992) (restitution order modified where evidence did not show that one victim’s increased mortgage and rental expense were caused by defendant’s crime); Mansingh v. State, 588 So. 2d 636, 637-38 (Fla. 1st DCA 1991) (in determining…
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