JOHN T. HOUSE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John House was convicted of grand theft and ordered to pay $14,716.17 in restitution to Sunland Food Mart. The appellate court affirmed the probation order but reversed the restitution order because the state failed to prove by a preponderance of the evidence that the defendant caused the full amount of claimed damages.
The restitution order must be reversed because the state failed to carry its statutory burden of establishing by a preponderance of the evidence that House caused the victim the full damage or loss in the amount ordered. Restitution must be limited to the $2,500 that House admitted taking and that was established as the initial loss.
[1] Restitution ordered by a trial court must be for damage or loss caused directly or indirectly by the defendant's offense.
[2] The state bears the burden of establishing, by a preponderance of the evidence, that the defendant caused the victim damage or loss in the amount ordered for restitution.
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Join FLexlaw to unlock all legal intelligence“restitution to victim shall be for damage or loss directly or indirectly caused by defendant's criminal conduct”
Establishes the statutory requirement that restitution must be limited to damages directly or indirectly caused by the defendant's offense
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Join FLexlaw to unlock all legal intelligenceAppellant House removed approximately $2,500 from Sunland Food Mart's cash receipts, which was the amount reported in the initial complaint and admitt…
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MICKLE, Judge.
Appellant challenges the order of restitution pursuant to which the trial court held him liable to pay $14,716.17 to Sunland Food Mart. We affirm the order of probation but are compelled to reverse the order of restitution because of 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. See sections 775.089(l)(a) (restitution to victim shall be for damage or loss directly or indirectly caused by defendant’s criminal conduct) and 948.03(l)(e) (restitution as condition of probation), Florida Statutes (1989); State v. Williams, 520 So. 2d 276 (Fla.1988); Mansingh v. State, 588 So. 2d 636 (Fla. 1st DCA 1991).
The sworn complaint of Sunland Food Mart’s general manager stated that Appellant had removed “approximately $2,500.00” from the store’s cash receipts. That was the reported amount of loss at the time Appellant entered into a plea agreement to pay “full restitution,” and $2,500.00 was the amount Appellant admitted having taken from the store. See Martel v. State, 596 So. 2d 100 (Fla. 2d DCA 1992).
Sunland Food Mart’s owner subsequently claimed in a victim impact statement that its “financial, economic or property loss” amounted to the substantially higher figure of $30,297.00. Much of the documentary evidence on which the state relied was subject to the hearsay rule and failed to meet the strict requirements for admissibility under the “business records” exception, on which the state relied. See section 90.801, 90.802 and 90.803(6), Florida Statutes (1989); Beckerman v. Greenbaum, 439 So. 2d 233 (Fla. 2d DCA 1983).
Those who testified on the company’s behalf could not determine precisely what portion of its losses above $2,500.00, if any, resulted from Appellant’s offense. From our review of the record, we find the “waiver” decisions factually distinguishable. See, e.g., Thomas v. State, 581 So. 2d 992 (Fla. 2d DCA 1991); Dickens v. State, 556 So. 2d 782 (Fla. 2d DCA 1990): The state did not carry its statutory burden of establishing, by a preponderance of the evidence, that Appellant caused the victim damage or loss in the amount ordered. See section 775.089(7), Florida Statutes (1989); Morel v. State, 547 So. 2d 341 (Fla. 2d DCA 1989).
The trial court is instructed on remand to issue an order requiring Appellant to pay $2,500.00 in restitution to Sunland Food Mart. Thomas v. State, 480 So. 2d 158 (Fla. 1st DCA 1985).
REVERSED and REMANDED.
BOOTH and KAHN, JJ., concur.
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Onel Montalvo v. State, 705 So. 2d 984 (Fla. 3d DCA 1998)…d nolo contendere to grand theft for embezzlement of rents collected for absentee landlord, restitution order requiring defendant to pay $4000.00 reversed and amended where the state produced rental receipts totalling only $3000.00); House v. State, 614 So. 2d 677, 677-78 (Fla. 1st DCA 1993) (reversing restitution 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 § 7…
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Blaine Crosby and Scott Crosby v. State, 637 So. 2d 341 (Fla. 2d DCA 1994)…he manager of Rutland Ranch. Neither could connect his loss of cattle to Blaine or Scott. Their testimony was simply insufficient to satisfy the state’s burden of connecting the victim’s loss to the criminal act of the defendant. See House v. State, 614 So. 2d 677 (Fla. 1st DCA 1993); Morel v. State, 547 So. 2d 341 (Fla. 2d DCA 1989). Additionally, we hold that the trial court erred in ordering restitution beyond the appellants’ ability to pay. Blaine’s and Scott’s testimony established they did not have pre…
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Ardell Louis v. State, 654 So. 2d 1290 (Fla. 3d DCA 1995)…e corrected to reflect that burglary of a structure is a third degree felony. Second, the amount ordered in restitution is improperly supported only by hearsay evidence of value. See Delks v. State, 622 So. 2d 624 (Fla. 2d DCA 1993); House v. State, 614 So. 2d 677 (Fla. 1st DCA 1993); Thomas v. State, 581 So. 2d 992 (Fla. 2d DCA 1991). Hence, that portion of the restitution order is vacated and the cause remanded for a new hearing on the valuation issue alone. Affirmed in part, vacated and remanded in part.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Williams, 520 So. 2d 276 (Fla. 1988)
- Mansingh v. State, 588 So. 2d 636 (Fla. 1st DCA 1991)
- Thomas v. State, 581 So. 2d 992 (Fla. 2d DCA 1991)
- Morel v. State, 547 So. 2d 341 (Fla. 2d DCA 1989)
- Dickens v. State, 556 So. 2d 782 (Fla. 2d DCA 1990)
- Beckerman v. Greenbaum, 439 So. 2d 233 (Fla. 2d DCA 1983)
- Thomas v. State, 480 So. 2d 158 (Fla. 1st DCA 1985)
- Martel v. State, 596 So. 2d 100 (Fla. 2d DCA 1992)