JAMES RAE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 1994-06-22
No. 93-3584
ANSTEAD, GLICKSTEIN and WARNER, JJ., concur.
638 So. 2d 597 Florida District Court of Appeal, Fourth District (1994) Positive Treatment
Cited by 11 cases

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Holding

The court held that the trial court erred in admitting hearsay evidence to determine the amount of restitution and that the errors were not harmless.


Headnotes

[1] Hearsay evidence is generally inadmissible in a restitution hearing unless the defense fails to object.

[2] Business records are admissible to prove the nonoccurrence or nonexistence of a matter if a proper foundation is laid by a witness.

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Facts & Procedural History

Appellant pleaded nolo contendere to grand theft for embezzling funds from his employer's used car business. The employer's president testified to the…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Having plead nolo contendere to grand theft, appellant contests the amount of restitution imposed by the trial court. We reverse the order of restitution1 and remand for further proceedings consistent herewith.

Appellant’s plea resulted from his embezzlement of funds paid by purchasers to his employer’s used car business. Appellant would take money from customers, give them a receipt, but would not credit their accounts. The employer’s president, David Absec, claimed that appellant had taken about $2,797, and in support of his testimony regarding the amount of money taken, introduced handwritten receipts, ledger sheets (including notations by Absec thereon), and statements of customers allegedly made to him.

Appellee claims that the receipts were written and signed by appellant. If so, they would be admissible under the party-opponent exception to the hearsay rule.2 Appellant’s brief has not refuted the contention that the receipts were written and signed by appellant. Although the receipts, together with the potentially admissible ledger sheets, would support restitution, they do not total $2,797, the amount of restitution ordered by the trial court.

In the present case, the ledger sheets would have been admissible under section 90.803(7) to show that the company did not receive certain sums of money from customers, if appellee had introduced testimony to lay the proper foundation.3 Absec probably could have testified as to the required foundation because he was the owner of the business and sometimes collected the money himself. However, the state’s failure to introduce testimony laying the proper foundation was fatal to the application of this exception. Quick v. State, 450 So. 2d 880, 881 (Fla. 4th DCA 1984).

Moreover, there were notations made by Absec on the ledgers, which were not admissible under the business records exception because they were made in anticipation of litigation and not in the regular course of business.4 Furthermore, “[whenever a record is made for the purposes of preparing for litigation, its trustworthiness is suspect and should be closely scrutinized.” Charles W. Ehrhardt, Florida Evidence § 803.6 (1994). Finally, the statements of the customers, as testified to by Absec, do not fall within any hearsay exception. Although section 90.803(7) might be read to allow Absec to testify that the ledger sheets/business records show the company did not receive payment from certain customers, the statements of the customers — which became notations on the ledger sheets — that they did in fact pay, are not within the purview of section 90.-803(6) or (7).

The above errors were not harmless.

ANSTEAD, GLICKSTEIN and WARNER, JJ., concur. . The trial court erroneously believed hearsay evidence was admissible in a restitution hearing. The general rule is that hearsay testimony is not admissible in a restitution hearing unless defense counsel fails to properly object to the evidence. Thomas v. State, 581 So. 2d 992, 993 (Fla. 2d DCA 1991); Strickland, v. State, 610 So. 2d 705 (Fla. 4th DCA 1992) (trial court may not rely on unsworn testimony); see also Langston v. State, 616 So. 2d 597 (Fla. 4th DCA 1993) (trial court has affirmative duty to conduct restitution hearing to determine credibility of witnesses and may not rely upon written statements from witnesses in lieu of hearing), rev. denied, 626 So. 2d 206 (Fla.1993).

. Section 90.803(18)(a), Florida Statutes (1991), provides that "[a] statement that is offered against a party and is ... [h]is own statement,” is not inadmissible, even though declarant is available as a witness.

. A hearsay exception is available to admit evidence that a matter is not included in a business record “to prove the nonoccurrence or nonexistence of the matter.” § 90.803(7), Fla.Stat. (1991). “In order to provide for the admissibility of evidence under section 90.803(7) it must be shown that the records were kept in accordance with section 90.803(6) and in such a manner that the fact would have been recorded if it had occurred. It is necessary to call a witness to testify to the required foundation.” Charles W. Ehrhardt, Florida Evidence § 803.7 (1994). A lack of trustworthiness will render evidence inadmissible under section 90.803(7).

.The business records exception to the hearsay rule requires that the record custodian or other qualified witness testify that the record was “kept in the course of a regularly conducted business activity and [that] it was the regular practice of that business activity to make such [record]." § 90.803(6)(a), Fla.Stat. (1991). However, such record is inadmissible if circumstances indicate a lack of trustworthiness concerning the record. Id.


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Citator

Cited By

  • A.J. v. State, 677 So. 2d 935 (Fla. 4th DCA 1996)
    …ant first challenges the admission of the medical bills over his hearsay [*937] objection to establish the amount of restitution. Hearsay is generally inadmissible in a restitution hearing where there is a proper objection to it. E.g., Rae v. State, 638 So. 2d 597, 598 n. 1 (Fla. 4th DCA 1994).2 However, in this case the medical bills were non hearsay because they constituted part of a contract that created a debt for a specific amount. Liability for a medical expense usually arises because of a contract imp…
  • Loraine Branker v. State, 650 So. 2d 195 (Fla. 4th DCA 1995)
    …on-tendere to petit theft of household fixtures and waived the limit on restitution. After two separate restitution hearings, Appellant contests the amount of restitution ordered by the trial court. We reverse the order of restitution. Rae v. State, 638 So. 2d 597 (Fla. 4th DCA 1994). The victim, Morris Willets, who purchased Appellant’s home after it was foreclosed, testified that as a speculator, real estate broker of fourteen years, and a home improvement salesman, he was competent to testify as to the va…
  • Riggins v. State, 67 So. 3d 244 (Fla. 2d DCA 2010)
    …“it must be shown that the records were kept in accordance with section 90.803(6) and in such a manner that the fact would have been recorded if it had occurred. It is necessary to call a witness to testify to the required foundation.” Rae v. State, 638 So. 2d 597, 598 n. 3 (Fla. 4th DCA 1994); see also Garcia v. State, 564 So. 2d 124, 128 (Fla.1990) (finding that trial court improperly excluded payroll records on hearsay grounds when the records would have supported the defendant’s defense and when the recor…

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