DENNIS EARL WILLIAMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the state failed to meet its burden of proving the amount of restitution due to a lack of competent evidence and an unclear final award.
[1] The state bears the burden of proving the amount of restitution by a preponderance of the evidence.
[2] A restitution award is not supported by competent evidence when the state fails to present documentary proof of the victim's loss.
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Join FLexlaw to unlock all legal intelligenceAppellant pled no contest to grand theft and burglary. The victim testified to property loss and insurance payout, but no documentary evidence of the …
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CAMPBELL, Judge.
Appellant maintains that the restitution amount must be reversed because it is not based on competent evidence. We agree. It is the state’s burden to prove the amount of restitution, and it failed to do so here.
Appellant pled no contest to grand theft third degree and burglary of, a dwelling. At a restitution hearing, the victim testified that she lost $11,070.00 worth of property in the burglary, and her insurance company valued the property at $7,871.24 but paid her only $5,726.90, leaving a difference of $2,144.34. She requested this amount plus the $175.00 increase in her insurance premium as restitution.
We observe first that no documentary evidence was presented regarding the amount paid by the victim’s insurance. The court 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 appellant to pay $2,319.24 in restitution, representing the difference between what the insurance company deemed the amount of the victim’s loss to be and the amount it actually paid ($2,144.24), in addition to the additional cost for the victim to carry her homeowner’s insurance ($175.00). The notice of appeal was then filed in the trial court on April 12, 1993. It is this amount to which appellant refers in the brief. However, on August 5, 1993, the court entered a written order, setting the restitution amount at $2,175.24. The record contains no transcript of a hearing or any documents that might explain why the court took this action.
Since no documentary evidence was presented and since the amount of the award is unclear, the restitution award is reversed and a new restitution hearing is ordered.
FRANK, C.J., and FULMER, J., concur.
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Glaubius v. State, 688 So. 2d 913 (Fla. 1997)…quires that the State demonstrate the amount of loss sustained by a victim by a preponderance of the evidence. Such evidence must be establshed through more than mere speculation; it must be based on competent evidence. See, e.g., Williams v. State, 645 So. 2d 594 (Fla. 2d DCA 1994) (State has not met its burden of demonstrating loss by preponderance of evidence where victim’s testimony is sole basis for determination and no documentary evidence is presented). To hold that the Beal’s could recover $1600 based…
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Moore v. State, 694 So. 2d 836 (Fla. 2d DCA 1997)…1 So. 2d 992 (Fla. 2d DCA 1991). Because the State failed 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…
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Korica v. State, 791 So. 2d 543 (Fla. 2d DCA 2001)…about missing property, estimates obtained from experts about the property’s value were hearsay and could not be used to establish the value for purposes of restitution). We reverse and remand for a new restitution hearing. Moore; Williams v. State, 645 So. 2d 594 (Fla. 2d DCA 1994). Because the court will conduct a new hearing, we also point out several other problems. For one thing, the court valued the majority of the missing items based on their purchase prices. Generally, restitution should be based on…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Delks v. State, 622 So. 2d 624 (Fla. 2d DCA 1993)
- Morel v. State, 547 So. 2d 341 (Fla. 2d DCA 1989)