ROBERT T. DELKS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Delks appeals a restitution order for grand theft, arguing the state failed to prove the full amount of victim damages. The court agreed, reducing the restitution obligation from $4,000 to $3,000 because the state failed to meet its burden of proving the disputed $1,000 by a preponderance of the evidence.
The court held that the state failed to carry its burden of proving the disputed $1,000 loss and directed that the restitution order be amended to reflect only the $3,000 that Delks admitted owing and that the state could prove through actual rent receipts.
[1] The state bears the burden of proving the amount of loss by a preponderance of the evidence in a restitution hearing.
[2] Hearsay evidence is inadmissible to prove the amount of restitution when timely objected to.
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Join FLexlaw to unlock all legal intelligence“Section 775.089(7), Florida Statutes (1991) places the burden of demonstrating the amount of loss on the state.”
Establishes that the prosecution bears the burden of proof for restitution amounts
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Join FLexlaw to unlock all legal intelligenceDelks pleaded nolo contendere to grand theft in the third degree for embezzling rents collected for an absentee landlord. At the restitution hearing, …
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PARKER, Judge.
Robert T. Delks appeals the final order of restitution, arguing that the state failed to prove the victim’s damages by a preponderance of the evidence. We agree with Delks and direct that the order of restitution be amended to reflect that Delks is responsible for payment of $3,000.
Delks pleaded nolo contendere to grand theft in the third degree. Delks embezzled rents collected for an absentee landlord. At the restitution hearing, Delks conceded that he owed $3000 but disputed an additional $1000 that the landlord was attempting to recover. The landlord provided rent receipts only totaling $3000. He testified that one tenant told him that he paid the rent but had lost his receipts. The landlord was unable to locate another tenant to determine whether he paid Delks any rent. The landlord argued that according to his records Delks should have collected $4000 in rent. Delks objected on the ground of hearsay regarding the statement of the one tenant. In response to the court’s question regarding how he knew how many apartments were rented, the landlord stated that Delks sent him monthly reports. However, the landlord did not have these reports with him at the restitution hearing. Delks objected to the testimony regarding these reports.
Section 775.089(7), Florida Statutes (1991) places the burden of demonstrating the amount of loss on the state. The state failed to produce the monthly reports evidencing how 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 evidence, it was not available at the hearing. This court concluded that the state failed to carry its burden of demonstrating the disputed loss by a preponderance of the evidence and reversed with directions to amend the restitution order to reflect the amount that the defendant admitted to taking, which was the amount the state was able to prove.
In this case the landlord was unable to find one tenant and it is questionable if the monthly report he claims to have would actually be admitted under the “business records” hearsay exception. Accordingly, we direct that the order be amended to reflect that Delks owes $3000, which is the total amount of the actual receipts.
DANAHY, A.C.J., and BLUE, J., concur.
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Citator
Cited By (12 total)
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Williams v. State, 645 So. 2d 594 (Fla. 2d DCA 1994)…t only had the victim’s testimony on that issue. This violates several of our cases which hold that the state has not met its burden of demonstrating loss by a preponderance of the evidence where no documentary evidence is presented. Delks v. State, 622 So. 2d 624 (Fla. 2d DCA 1993); Morel v. State, 547 So. 2d 341 (Fla. 2d DCA 1989). Moreover, it is not clear from the record just what the final restitution amount ordered was. On March 24, 1993, the court held a restitution hearing at which it orally ordered…
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Strickland v. State, 685 So. 2d 1365 (Fla. 2d DCA 1996)…hing that the defendant caused damage to the victims in excess of $1200. See also Crosby v. State, 637 So. 2d 341 (Fla. 2d DCA 1994) (restitution amount improper where cattle owners could not connect loss of cattle to the defendant); Delks v. State, 622 So. 2d 624 (Fla. 2d DCA 1993) (restitution amount improper where landlord could not show that tenants had actually paid rents which defendant allegedly embezzled). Because the state failed to meet its burden of proving that Strickland’s conduct caused the en…
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Onel Montalvo v. State, 705 So. 2d 984 (Fla. 3d DCA 1998)…uently, the restitution order is not before us on an abuse of discretion standard. Rather, the trial court’s restitution order which is unsubstantiated by the record evidence is clearly erroneous and constitutes reversible error. See Delks v. State, 622 So. 2d 624, 625 (Fla. 2d DCA 1993) (where defendant pled 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 receip…1 / 2
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Thomas v. State, 581 So. 2d 992 (Fla. 2d DCA 1991)
- Morel v. State, 547 So. 2d 341 (Fla. 2d DCA 1989)