ARTHUR WINBORN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Affirming grand theft conviction but reversing restitution order because the state failed to prove victim losses by competent evidence rather than mere prosecutor assertions.
The state must prove the amount of restitution owed by a preponderance of the evidence through competent evidence, not merely through a prosecutor's representation of victims' claims.
[1] In restitution proceedings, the state bears the burden of proving the amount of victim loss by a preponderance of the evidence through competent evidence, and a prosecuto…
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Join FLexlaw to unlock all legal intelligence“The state must prove the amount owed with competent evidence.”
Court explaining the evidentiary standard required for restitution awards.
Arthur Winborn was convicted of grand theft. At the restitution hearing, the prosecutor stated the amount victims claimed they were owed, but the vict…
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RYDER, Acting Chief Judge.
Arthur Winborn attacks both his conviction for grand theft and the amount of restitution imposed. We affirm the conviction without discussion. We reverse the trial court’s restitution order and remand for further proceedings.
When the state seeks restitution it has the burden of proving the amount of the victim’s loss by a preponderance of the evidence. § 775.089(7), Fla.Stat. (1991); Thomas v. State, 581 So. 2d 992 (Fla. 2d DCA 1991). At Winborn’s restitution hearing, the prosecutor merely stated the amount the victims had told him they claimed. The victims themselves did not testify nor did they submit receipts, inventories, or the like, to establish the amount of their loss. The state must prove the amount owed with competent evidence. Thomas. The prosecutor’s representation of the victims’ assertions did not meet this standard. We reverse the award of restitution with instructions to the trial court to hold another hearing and to require the state to present competent evidence of the victims’ loss. The trial court should also hear evidence on Winborn’s ability to pay. Pope v. State, 575 So. 2d 307 (Fla. 2d DCA 1991). The restitution order is reversed and remanded for proceedings consistent with this opinion.
PARKER and BLUE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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A.J. v. State, 677 So. 2d 935 (Fla. 4th DCA 1996)…Chapter 39 disposition hearings than is applicable in criminal cases in general. . In dicta, two cases have suggested that a victim’s production of receipts or bills would have avoided hearsay problems fatal to restitution claims. Winborn v. State, 625 So. 2d 977 (Fla. 2d DCA 1993); Green v. State, 652 So. 2d 958 (Fla. 2d DCA 1995). Other states have rejected hearsay objections and admitted medical bills in evidence through the patient, albeit on various theories. Walters v. Littleton, 223 Va. 446, 290 S.E.…
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Trice v. State, 655 So. 2d 1270 (Fla. 2d DCA 1995)…Florida Rule of Criminal Procedure 3.720(d)(1). The appellant is also correct concerning the lack of notice or opportunity to be heard on the amount of the restitution award. See Massie v. State, 635 So. 2d 110 (Fla. 2d DCA 1994); Winbom v. State, 625 So. 2d 977 (Fla. 2d DCA 1993). We, therefore, reverse the restitution award and remand for a new restitution hearing. Affirmed in part, reversed in part and remanded for further proceedings. BLUE and QUINCE, JJ., concur.…
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Moore v. State, 694 So. 2d 836 (Fla. 2d DCA 1997)…iled 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 594 (Fla. 2d DCA 1994); Winhorn v. State, 625 So. 2d 977 (Fla. 2d DCA 1993). Because we are remanding for another hearing, we also address the trial court’s determination regarding the defendant’s ability to pay. The restitution statute that applies in this case requires the trial court to determine the…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Thomas v. State, 581 So. 2d 992 (Fla. 2d DCA 1991)
- Pope v. State, 575 So. 2d 307 (Fla. 2d DCA 1991)