ULYSSES MOORE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Moore appealed from orders imposing costs and restitution following his conviction for aggravated battery. The court vacated the restitution award because the trial court failed to hold a hearing to establish the amount of loss, shifting the burden improperly to the defendant rather than requiring the prosecution to prove damages.
The restitution award was improper because the prosecution bears the burden of proving the amount of loss by a preponderance of the evidence at a hearing, and the defendant cannot be deemed to have waived this right by failing to request one. The cost portion of the judgment was properly imposed.
[1] Restitution cannot be properly assessed when the state fails to meet its burden of proving the amount of loss sustained by the victim by a preponderance of the evidence.
[2] A defendant does not waive their right to a hearing on restitution by failing to seek one; it is the state's burden to bring the matter to a hearing and prove the amount…
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Join FLexlaw to unlock all legal intelligence“The state attorney has the burden of showing, by a preponderance of the evidence, the amount of loss a victim has sustained as a result of a crime and that the defendant caused the victim's loss.”
Establishes the prosecutorial burden of proof for restitution amounts
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAfter a verbal altercation with a neighbor, Moore threw pliers that broke the neighbor's leg and injured her face and eye. The victim claimed $13,000 …
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FRANK, Chief Judge.
Ulysses Moore has appealed from orders imposing costs and requiring the payment of restitution following his conviction for aggravated battery. The record discloses that after a verbal altercation with a neighbor, Moore threw a pair of pliers, breaking the neighbor’s leg and injuring her face and eye. The victim claimed to have incurred $13,000.00 in medical bills. The trial court’s comments at sentencing temporarily set restitution in that amount and required the victim to support the figure with medical bills. The trial court suggested that a hearing be held within thirty days from the date of the judgment in the event the victim could not prove the expenses and could not agree with Moore’s counsel on a different or lesser amount. The judgment does not reflect that the $13,000.00 was intended as a temporary sum subject to modification upon the conduct of a hearing. No hearing, however, occurred. Hence, restitution was improperly assessed.
“The state attorney has the burden of showing, by a preponderance of the evidence, 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 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 said that Moore waived his right to a hearing by not seeking one. It was the state’s burden — not Moore’s — to bring this matter to a hearing and to prove the amount of restitution.
We find no similar error in the imposition of costs. Publication of the statutory provision directing courts to impose a lien is notice of the law, State v. Beasley, 580 So. 2d 139 (Fla.1991), and the defendant had adequate opportunity to be heard at sentencing.
Accordingly, we vacate the restitution portion of the judgment and remand this matter for further proceedings consistent with this opinion.
CAMPBELL and FULMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Strickland v. State, 685 So. 2d 1365 (Fla. 2d DCA 1996)…and his projected revenue from March to July. In asking for restitution, the state must prove by a preponderance of the evidence the amount of loss sustained by a victim as a result of a crime and that the defendant caused that loss. Moore v. State, 643 So. 2d 2 (Fla. 2d DCA 1994). Here the state presented the owner’s detailed testimony regarding his system of record keeping and his method of calculating projected profits. We will assume without discussion that this evidence was sufficient to establish the…
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Barone v. State, 222 So. 3d 1235 (Fla. 5th DCA 2017)…conduct a hearing regarding restitution and for’ entry of an amended restitution order. When restitution is sought in a criminal proceeding, the State has the burden of proving a victim’s loss by the preponderance of the evidence. Moore v. State, 643 So. 2d 2, 2 (Fla. 2d DCA 1994). A trial court should not enter a restitution order without a hearing absent an agreement by the defendant. See Bell v. State, 652 So. 2d 1192, 1193 (Fla. 4th DCA 1995) (“Appellant’s alternative argument (that the court should…
Authorities Cited
- State v. Beasley, 580 So. 2d 139 (Fla. 1991)
- Delks v. State, 622 So. 2d 624 (Fla. 2d DCA 1993)
- Touchton v. State, 616 So. 2d 1124 (Fla. 1st DCA 1993)
- Paxson v. State, 637 So. 2d 341 (Fla. 2d DCA 1994)
- Blaine Crosby and Scott Crosby v. State, 637 So. 2d 341 (Fla. 2d DCA 1994)