DANA ASHTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court abused its discretion by awarding restitution for stolen cash based on hearsay evidence without sufficient proof.
[1] The state bears the burden of proving the proper amount of restitution by a preponderance of the evidence.
[2] Hearsay evidence alone is insufficient to support an award of restitution when timely objected to.
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Join FLexlaw to unlock all legal intelligenceFollowing a guilty plea to burglary and grand theft, the defendant was ordered to pay restitution. At the restitution hearing, the victim testified ab…
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THOMPSON, C.J.
Dana Ashton appeals from a restitution order. The award arose from her conviction and sentence, after a plea, for the crimes of conspiracy to commit burglary of a dwelling1 and grand theft2.
According to the record, Ashton telephoned one of the victims, Taylor Carty, and asked the victim for a ride because Ashton’s auto had broken down. While Carty was out, Ashton and a Mend drove to Carty’s residence, broke into the house, and stole a safe. Ashton pled guilty and was sentenced to 17 months in prison to be followed by five years of drug offender probation, conditions of which were to include the payment of restitution.
A restitution hearing was held in which the state presented the testimony of Carty alone to prove the appropriate amount of restitution. Carty testified that when her home was burglarized by Ashton and Ash-ton’s cohort, “[a] safe with cash and a gold chain inside” was stolen. She testified that the safe held $3500 cash at the time of theft, and Ashton’s trial counsel objected, suggesting that Carty “had no personal knowledge as to that amount.” In response to the objection, the trial court asked the state to rephrase the question, which had been “[w]hat did you have in that safe?” Instead, the state rephrased and asked, “[d]o you know how much cash was in the safe?” Carty said “yes” and then explained that she put the cash in the safe on either the night before the burglary or the day of the burglary and counted it herself before putting it in the safe. The cash was not Carty’s — it belonged to her roommate, Greg Lee. Carty testified that Lee had gone on a trip to California, but, after withdrawing the cash from a bank for the trip, had decided not to take the money with him and had the money put in the safe.
On cross-examination, defense counsel questioned Carty about the police report, which indicated the safe contained $1000.00; counsel asked Carty if she recalled telling the officer that $1000.00 was in the safe. She did not remember having said that. Defense counsel stated that in an earlier deposition Carty had said the safe contained $3000.00. At this point, Carty conceded that she was merely assuming she had counted the money, and that her testimony that there was $3500.00 in the safe was based on what her roommate had told her. The defense objected again and moved to strike the earlier testimony that there was $3500.00 in the safe, pointing out that the $3500.00 figure was based on hearsay. The trial court overruled the objection and denied the motion to strike.
The trial court orally ruled at the hearing that he would order restitution of $3000.00 cash. A written order was later entered reflecting this amount, along with the other restitution due as to other matters.
The burden of proof in proving restitution is on the state, which must prove the proper amount of restitution to be made by a preponderance of the evidence. See § 775.089(7), Fla. Stat. (1999). In reviewing the order of the trial court, we must consider whether the trial court abused its discretion. See State v. Hawthorne, 573 So. 2d 330, 332-33 (Fla. 1991)(“this Court has recognized that ‘[t]he statutory provisions requiring the imposition of restitution recognize the discretion of the trial court in determining the amount of restitution.’ ”)(quoting Spivey v. State, 531 So. 2d 965, 966 (Fla.1988)).
As to the $3000.00 award for the cash that was allegedly in the safe at the time of the burglary, there is no evidence in the record supporting that figure. On direct, Carty said there was $3500.00 in the safe, yet the trial court only awarded $3000.00. The only place in the record where $3000.00 is mentioned is when trial defense counsel impeached Carty by pointing out that during her deposition she stated that the amount in the safe was $3000.00. That figure was only introduced for impeachment, not as testimony to be considered as evidence by the court. Moreover, later in the hearing Carty conclusively acknowledged that the $3500.00 figure was based on what she was told by her roommate and she only assumed that she had counted the money herself. Hearsay alone is not sufficient to support an award of restitution. See Delks v. State, 622 So. 2d 624, 625 (Fla. 2d DCA 1993)(hearsay evidence inadmissible to prove amount of restitution where defendant made timely objection to hearsay evi-denee)(citing Thomas v. State, 581 So. 2d 992, 993 (Fla. 2d DCA 1991)). For some unexplained reason, the state failed to present the actual victim in this case, who could have testified to the court firsthand how much money was in the safe. The burden of demonstrating the amount of loss is on the state, which failed to carry that burden, leading to the trial court abusing its discretion in awarding $3000.00 in restitution for the stolen cash.3
We reverse and remand on the matter of the amount of the stolen cash and instruct the trial court to have another hearing as to this issue. REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.
HARRIS and PALMER, JJ., concur. . § 810.02(3)(b), Fla. Stat.(1999).
. §§ 810.014(1), 812.014(2)(c)(l), Fla. Stat. (1999).
. We find that the other complaints raised below and on appeal do not merit discussion.
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Koile v. State, 902 So. 2d 822 (Fla. 5th DCA 2005)…tion the lost wages of the decedent’s parents while attending trial, and the lost future earnings of the decedent. II. Standard of review and burden of proof. We review restitution orders using an abuse of discretion standard. See Ashton v. State, 790 So. 2d 1115, 1117 (Fla. 5th DCA 2001). The burden of proving the amount of restitution is on the State, and the amount must be proved by a preponderance of the evidence. See § 775.089(7), Fla. Stat. (2001); Santana v. State, 795 So. 2d 1112 (Fla. 5th DCA 2001).…
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Kiefer v. State, 909 So. 2d 572 (Fla. 5th DCA 2005)…stitution by depreciating the value of each item by fifteen percent. The State did not object to application of the depreciation rate. Review of restitution orders generally requires application of the abuse of discretion standard. Ashton v. State, 790 So. 2d 1115 (Fla. 5th DCA 2001). Hence, affir-mance is required if substantial competent evidence supports the trial court’s factual findings. Molter v. State, 892 So. 2d 1115 (Fla. 2d DCA 2004). [*574] The general rule applicable to awards of restitution is th…
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Johnston v. State, 870 So. 2d 877 (Fla. 1st DCA 2004)…restitution with respect to the items stolen from the victim’s home, but reverse with respect to the damages to the victim’s home. The amount of restitution ordered by a trial court is subject to review for an abuse of discretion. Ashton v. State, 790 So. 2d 1115, 1117 (Fla. 5th DCA 2001). A trial court must order a defendant to make restitution for damage or loss caused directly or indirectly by the defendant’s offense, and damage or loss related to the defendant’s criminal episode. § 775.089(l)(a), Fla. St…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Hawthorne, 573 So. 2d 330 (Fla. 1991)
- Spivey v. State, 531 So. 2d 965 (Fla. 1988)
- Thomas v. State, 581 So. 2d 992 (Fla. 2d DCA 1991)
- Delks v. State, 622 So. 2d 624 (Fla. 2d DCA 1993)