LORI TOUCHTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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.
Lori Touchton pled nolo contendere to 11 counts of dealing in stolen property and challenged a restitution order requiring her to pay $38,348.17. The court reversed the restitution order because the state failed to establish by preponderance of the evidence the amount of loss caused by the appellant, lacking an itemized list of stolen jewelry and containing unexplained discrepancies in the valuation testimony.
The court held that the state did not carry its statutory burden under section 775.089(7), Florida Statutes, because it failed to produce an itemized account of the missing jewelry and the evidence contained unexplained discrepancies. The restitution order was reversed and remanded for a new restitution hearing.
[1] A restitution order must be supported by evidence establishing the amount of damage or loss caused by the defendant by a preponderance of the evidence.
[2] A restitution order may be reversed when the state fails to produce an itemized account of missing property.
Previewing 2 of 5 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 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.”
Establishes the legal standard and the state's failure to meet it regarding restitution.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellant, a former jewelry store employee, took jewelry pieces from the store over a five or six month period. Some jewelry was recovered from pawn s…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Value Of Stolen Property cases and more on FLexlaw
PER CURIAM.
Appellant, having pled nolo contendere to 11 counts of dealing in stolen property, challenges that portion of a restitution order requiring her to pay $38,348.17 to the victim and the victim’s insurer. We find that the court erred in determining the amount of restitution, and reverse.
The record reveals that the appellant was a former employee of the jewelry store from which the stolen property was taken. Over a five or six month period, the appellant took pieces of jewelry from the store, specific descriptions of which are not included in the charging document nor found elsewhere in the record.
At the restitution hearing, the state sought to establish the value of the stolen jewelry with testimony from the store’s general manager and part owner, Mr. Thompson, who was the state’s only witness. Thompson testified that some of the pieces of jewelry were returned by appellant’s parents, while others were recovered from pawn shops and returned by the police. Some items were never returned. Thompson’s testimony as to the value of the stolen items was almost exclusively in terms of subtotals.
Thus, he provided dollar figures for the total value of all stolen items, the total value of items returned and, most importantly, the figure of $38,-348.17 representing the value of the lost jewelry. When pressed for an itemized list of the missing pieces, Thompson stated that he did not have such a list available, nor could he compile a list by the next day. Thompson explained that he arrived at the subtotals by going over his stock books item-by-item, and that the stock books listed the store’s cost and sales price for all merchandise. Defense counsel complained that no effective cross-examination could be undertaken without an itemized list from Thompson, but the trial court refused to grant a continuance for the purpose of preparing such a list. .Despite appellant’s testimony disputing the value of the stolen items, the trial court ordered restitution that included the $38,348.17 for the missing items as testified to by Thompson.
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 § 775.089(7), Fla.Stat. (1989). Not only did the state fail to produce an itemized account of the missing pieces of jewelry, but there were also unexplained discrepancies in the nonitemized subtotals upon which the restitution order was based.
Thus, Thompson testified that $11,331.83 represented the total value of all returned jewelry.
However, the value of nine pieces returned by the police, which appear to be the only pieces individually described and itemized, add up to $22,170, without including the value of the additional items returned by appellant’s parents. We must reverse as we are unable to determine from the record whether the restitution order improperly includes recovered property. See Jones v. State, 480 So. 2d 163 (Fla. 1st DCA 1985), rev. denied, 488 So. 2d 830 (Fla.1986).
Accordingly, the restitution, order is reversed and the case is remanded for a new restitution hearing.
BOOTH, SMITH and MICKLE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Blaine Crosby and Scott Crosby v. State, 637 So. 2d 341 (Fla. 2d DCA 1994)…has the burden of showing, by a preponderance of the evidence, the amount of loss a victim has sustained as the result of a crime and that the defendant caused the victim’s loss. Delks v. State, 622 So. 2d 624 (Fla. 2d DCA 1993); Touchton v. State, 616 So. 2d 1124 (Fla. 1st DCA 1993); § 775.089(7), Fla.Stat. (1991). The state only presented two witnesses, Mr. Regan and the manager of Rutland Ranch. Neither could connect his loss of cattle to Blaine or Scott. Their testimony was simply insufficient to satisfy…
-
J.O.S. v. State, 668 So. 2d 1082 (Fla. 1st DCA 1996)…blish the amount of restitution only by the greater weight of the evidence, rather than to the exclusion of all reasonable doubt. § 775.089(7), Fla.Stat. (Supp.1994). See, e.g., Winborn v. State, 625 So. 2d 977 (Fla. 2d DCA 1993); Touchton v. State, 616 So. 2d 1124 (Fla. 1st DCA 1993). We can conceive of cases in which the amount of the victim’s loss as a result of the crime could not, for any number of reasons, be established to the exclusion of all reasonable doubt at the time of the trial, but could be esta…
-
Ulysses Moore v. State, 643 So. 2d 2 (Fla. 2d DCA 1994)…, the amount of loss a victim has sustained as a result of a crime and that the defendant caused the victim’s loss.” Crosby v. State, 637 So. 2d 341 (Fla. 2d DCA 1994) citing [*3] Delks v. State, 622 So. 2d 624 (Fla. 2d DCA 1993); Touchton v. State, 616 So. 2d 1124 (Fla. 1st DCA 1993); § 775.089(7), Fla.Stat. (1991). Although the state asserts that Moore was given notice and an opportunity to be heard on this issue, he was not heard. It was incumbent upon the state to prove the amount of loss, and it cannot be…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jones v. State, 480 So. 2d 163 (Fla. 1st DCA 1985)