BRYAN L. STOCKS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that estimated repair costs for damages, including lost profits and unverified labor, were improperly awarded as restitution without sufficient proof.
[1] Lost profits are not recoverable as restitution for criminal mischief.
[2] The state bears the burden of proving the amount of a victim's loss by a preponderance of the evidence in a restitution hearing.
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of criminal mischief for damaging a motel room. At the restitution hearing, the victim's employee estimated damages, including…
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PETERSON, Chief Judge.
The appellant was adjudicated guilty of criminal mischief after he discharged a rifle in a motel room which damaged a headboard, mirror, door and a portion of a wall. At the restitution hearing, an employee of the victim testified that he estimated the damage to the motel room to be $3289.57. This figure included $2,025 for the amount of time the room was off the market. The trial court properly disallowed the lost profits claim, see Osteen v. State, 616 So. 2d 1215 (Fla. 5th DCA 1993), but did allow the full amount of the estimated cost of labor for two craftsmen for two full days and three maids for eight hours each to repair the damages.
The allowance of these expenses was error because, when questioned by appellant’s attorney as to whether such time was actually expended, the victim’s witness testified that the time figures were estimated before the work was completed, and he had no idea why, or if, it took three maids each a full day to clean up the debris left by the workmen. As to the actual time spent by the workmen themselves, the employee believed the actual time was a little higher than estimated, but that he would “have to check [his] records.” No such records, however, were offered.
The state, in seeking restitution, has the burden of proving the amount of the victim’s loss by a preponderance of the evidence. Winborn v. State, 625 So. 2d 977 (Fla. 2d DCA 1993). Because the appellant challenged the time estimates that were presented, the state had the further burden of presenting proof of the actual time spent in repairing the damages. See Loos v. State, 585 So. 2d 1181 (Fla. 5th DCA 1991). The restitution order is affirmed as to the costs of the headboard and mirror, $180.33, but remanded for a factual determination of the remaining costs including the actual time spent by the craftsmen and maids to repair the damages. See Garrett v. State, 684 So. 2d 305 (Fla. 2d DCA 1996).
AFFIRMED IN PART; VACATED IN PART; REMANDED.
W. SHARP and GOSHORN, JJ., concur.
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Onel Montalvo v. State, 705 So. 2d 984 (Fla. 3d DCA 1998)…inois are similar. We agree with Montalvo’s position that restitution awards cannot be speculative. See Glaubius v. State, 688 So. 2d 913 (Fla.l997)(speculative evidence insufficient to support $1600 award for investigative costs); Stocks v. State, 687 So. 2d 325 (Fla. 5th DCA 1997)(restitution award, based upon estimated time figures made before repair work was completed, reversed for factual determination of the actual time spent to repair damages); Delks v. State, 622 So. 2d 624 (Fla. 2d DCA 1993)(restitu…
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Garay v. State, 708 So. 2d 631 (Fla. 5th DCA 1998)…property. It was error to order restitution of lost profits. Additionally, this court has held that lost profits or income are not recoverable under the 1993 version of the restitution statute, in the absence of bodily injury. See Stocks v. State, 687 So. 2d 325 (Fla. 5th DCA 1997) (where defendant had been convicted of criminal mischief after discharging a rifle in a motel room, trial court properly disallowed a claim of $2,025 for the income lost while the room was undergoing repairs); Osteen v. State, 61…
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Mastrantoni v. State, 722 So. 2d 251 (Fla. 5th DCA 1998)…also supported the amounts awarded. We strike the restitution order insofar as it requires Defendant to pay for the loss on the sale of the Saturn because the loss on the failed sale is simply too speculative to allow recovery. See Stocks v. State, 687 So. 2d 325 (Fla. 5th DCA 1997); Osteen v. State, 616 So. 2d 1215 (Fla. 5th DCA 1993). Even assuming the loss was not speculative, there was a lack of competent evidence of Carson’s ability to sell the leased car.3 We strike Carson’s claim for restitution for t…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Winborn v. State, 625 So. 2d 977 (Fla. 2d DCA 1993)
- Osteen v. State, 616 So. 2d 1215 (Fla. 5th DCA 1993)
- Loos v. State, 585 So. 2d 1181 (Fla. 5th DCA 1991)
- Garrett v. State, 684 So. 2d 305 (Fla. 2d DCA 1996)