ROBERT ATKINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Atkins appealed a restitution order requiring him to pay $709.53 for grand theft. The court reversed and remanded because the trial court improperly admitted hearsay testimony regarding the valuation of misappropriated property, violating Atkins' right to confront witnesses.
The trial court erred by admitting the hearsay valuation testimony. Because Atkins' counsel objected to the hearsay evidence, it was inadmissible to prove the amount of restitution, and the State failed to carry its burden of proof as to the amount of loss.
[1] A restitution order based solely on hearsay evidence is improper when the defendant objects to the admission of such evidence.
[2] Testimony regarding the value of misappropriated property, derived from reports prepared by non-testifying subordinates, constitutes inadmissible hearsay.
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Join FLexlaw to unlock all legal intelligence“Because Mr. Atkins' counsel objected to the hearsay evidence, it is not admissible to prove the amount of restitution.”
Establishes the fundamental rule that properly-objected-to hearsay cannot be used to determine restitution amounts
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Join FLexlaw to unlock all legal intelligenceAtkins, a former Bradenton Housing Authority employee, pleaded no contest to grand theft involving misuse of BHA materials, money, and equipment. At t…
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CASANUEVA, Judge.
Robert Atkins appeals from a restitution order, claiming the trial court erred by determining the amount solely upon hearsay. Because his claim is meritorious, we reverse and remand for a new hearing.
Mr. Atkins is a former employee of the Bradenton Housing Authority (BHA). He was charged with grand theft arising from the misuse of materials, money, and equipment belonging to BHA. He pleaded no contest and, as a condition of his probation, was ordered to make restitution in the amount of $709.53.
At the restitution hearing the State called only the executive director of BHA. Although the executive director testified that he personally observed BHA property installed in Mr. Atkins’ premises, he could not testify to the value of the misappropriated property. For that, he relied upon reports prepared by two subordinates. He testified, for example, that his staff had valued the missing paint at fifty dollars and that others had determined prices and values of the other items at issue. Mr. Atkins’ counsel objected to the valuation testimony as hearsay. The trial court overruled his objection.
Because Mr. Atkins’ counsel objected to the hearsay evidence, it is not admissible to prove the amount of restitution. See Thomas v. State, 581 So. 2d 992 (Fla. 2d DCA 1991). In Moore v. State, 694 So. 2d 836 (Fla. 2d DCA 1997), this court determined that witness testimony based on information from a non-testifying accountant was improper hearsay evidence. We see no distinction between the testimony in Moore and that offered in this case. Here, as in Moore, the director testified directly from information gathered and provided by two subordinates. Neither employee was called to testify at the restitution hearing. Although the trial court directed that the subordinates testify, nothing in the record shows that either witness appeared. Furthermore, the record contains no indication that the State sought to introduce the information as a summary under section 90.956, Fla. Stat. (1995).
Because the State failed to carry its burden of proof as to the amount of loss, we reverse the order of restitution and remand for a new hearing. See Moore; Williams v. State, 645 So. 2d 594 (Fla. 2d DCA 1994).
FULMER, A.C.J., and NORTHCUTT, J„ Concur.
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T.J.N. v. State, 977 So. 2d 770 (Fla. 2d DCA 2008)…mates for repair of a vehicle); Craft v. State, 769 So. 2d 1096, 1097 (Fla. 2d DCA 2000) (reversing restitution award because it was based on hearsay testimony from the victim regarding estimate for repairs to her vehicle); see also Atkins v. State, 728 So. 2d 288, 289 (Fla. 2d DCA 1999) (reversing restitution award because it was based on testimony from a witness who “testified directly from information gathered and provided by two subordinates”); Moore v. State, 694 So. 2d 836, 837 (Fla. 2d DCA 1997) (rever…
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Dreyer v. State, 46 So. 3d 613 (Fla. 2d DCA 2010)…ution. See Moore v. State, 694 So. 2d 836, 837 (Fla. 2d DCA 1997); Thomas, 581 So. 2d at 993. It is improper for a witness to offer hearsay testimony regarding determinations of value that the witness received from other people. See Atkins v. State, 728 So. 2d 288, 289 (Fla. 2d DCA 1999). Here the State presented the testimony of Detective Adams to establish the amount of money Dreyer stole from the victim. However, Detective Adams did not have personal knowledge of that amount; rather, she received that inf…
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S.A.E. v. State, 741 So. 2d 1248 (Fla. 2d DCA 1999)…error. We agree that the State failed to carry its burden of proof as to the amount of loss. Accordingly, we reverse the restitution order and remand this case for another hearing to determine the amount of restitution. See Atkins v. State, [*1249] 728 So. 2d 288 (Fla. 2d DCA 1999); B.L.N. v. State, 722 So. 2d 860 (Fla. 1st DCA 1998); Thomas v. State, 581 So. 2d 992 (Fla. 2d DCA 1991). ALTENBERND, A.C.J., and NORTHCUTT and SALCINES, JJ., Concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Thomas v. State, 581 So. 2d 992 (Fla. 2d DCA 1991)
- Moore v. State, 694 So. 2d 836 (Fla. 2d DCA 1997)
- Williams v. State, 645 So. 2d 594 (Fla. 2d DCA 1994)