BONNIE MILLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Bonnie Miller appealed a restitution order requiring her to pay $10,000 for a stolen coin collection. The Florida appellate court reversed, finding that hearsay testimony from the victim's son was insufficient to establish the amount of loss, and that the trial court erred by conducting the restitution hearing in Miller's absence without demonstrating her absence was voluntary.
The court held that hearsay testimony cannot form the basis for ordering restitution, and the victim's son's testimony about the pawnbroker's valuation was hearsay and speculative. Additionally, the trial court erred by conducting the restitution hearing in Miller's absence without showing that her absence was voluntary and that she knowingly and intelligently waived her right to be present.
[1] Hearsay testimony may not form the sole basis for ordering restitution.
[2] A defendant has a right to be present at sentencing, and any waiver of this right must be knowing, intelligent, and voluntary.
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Join FLexlaw to unlock all legal intelligence“Hearsay may not be the basis for ordering restitution.”
Establishes the fundamental legal principle that governs the restitution hearing and invalidates the trial court's reliance on the victim's son's testimony
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Join FLexlaw to unlock all legal intelligenceBonnie Miller was ordered to pay restitution of $10,000 to Shirley Dobruck for a stolen coin collection. The victim's son, Robert Burger, testified th…
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DAVIS, Judge.
Bonnie Miller challenges the circuit court’s final judgment of restitution requiring her to pay Shirley Dobruck $10,000 for a stolen coin collection. We reverse.
Hearsay may not be the basis for ordering restitution. Green v. State, 652 So. 2d 958 (Fla. 2d DCA 1995). Here, the only witness for the State was the victim’s son, Robert Burger, who testified that his mother had eight to ten one-gallon bags of coins that she kept in a lock box in her home. The collection had never been appraised or insured, and Burger never counted or inventoried the collection. Although he knew what denominations of coins made up the collection, he was unaware of the amounts of each particular coin and whether the bags contained similar amounts.
Burger testified that a pawnbroker had paid his mother $1000 for a small box containing approximately one-fifth of the contents of one of the gallon bags. However, the pawnbroker did not testify regarding that valuation, and the State failed to establish how Burger came to know of the pawnbroker’s valuation.
Accordingly, Burger’s testimony did not establish by a preponderance of the evidence the amount of the victim’s loss. See Moore v. State, 694 So. 2d 836 (Fla. 2d DCA 1997). At most, it was speculative opinion testimony based on hearsay information that he received either directly from the pawnbroker or through his mother. It also was error for the trial court to conduct the restitution hearing in Miller’s absence without a showing that her absence was voluntary. “A defendant has a right to be present at the stages of his trial where fundamental fairness might be thwarted by his absence.” Papageorge v. State, 710 So. 2d 53, 54 (Fla. 4th DCA 1998). Sentencing is such a stage of a trial. Id. at 55. Although a defendant can waive the right to be present at sentencing, the waiver must be made knowingly, intelligently, and voluntarily. A waiver can include voluntarily absenting oneself without leave of court. Id.
Here, Millers counsel represented that Miller was bedridden and awaiting surgery at an area hospital, and the State presented nothing to contradict this assertion. Thus, the record does not demonstrate that Miller voluntarily absented herself from the restitution hearing nor that she knowingly and intelligently waived her presence.
Reversed and remanded for a new restitution hearing.
BLUE, C.J., and KELLY, J., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Leronnie Lee Walton v. State, 106 So. 3d 522 (Fla. 1st DCA 2013)…o be present. See Brown [*529] v. State, 929 So. 2d 675, 677 (Fla. 5th DCA 2006); Smith v. State, 655 So. 2d 1271, 1272 (Fla. 1st DCA 1995). But to be effective, the waiver must be knowingly, intelligently, and voluntarily made. See Miller v. State, 833 So. 2d 318, 319 (Fla. 2d DCA 2003). Second, a defendant need not be present at resentencing if the error to be corrected is “purely ministerial” or clerical, and involves no exercise of the court’s discretion. See Christian v. State, 5 So. 3d 787, 787 (Fla. 1s…
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M.W.G. v. State, 945 So. 2d 597 (Fla. 2d DCA 2006)…his absence. Coney v. State, 653 So. 2d 1009,1013 (Fla.1995). This includes hearings at which the imposition of and the amount of restitution are to be determined. See, e.g., T.A.S. v. State, 892 So. 2d 1233,1234 (Fla. 2d DCA 2005); Miller v. State, 833 So. 2d 318, 319 (Fla. 2d DCA 2003); J.B. v. State, 646 So. 2d 808 (Fla. 1st DCA 1994). However, a defendant can waive this right and exercise constructive presence through counsel. Coney, 653 So. 2d at 1013. If the defendant does so, before the proceedings may…
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Baker v. State, 979 So. 2d 453 (Fla. 2d DCA 2008)…as long been considered such a stage. Id. at 600. Therefore, unless the State can show that a defendant knowingly and voluntarily waived his right to be present at his restitution hearing, it is error to proceed in his absence. Id.; Miller v. State, 833 So. 2d 318, 319 (Fla. 2d DCA 2003). A defendant’s waiver of the right to be present at all stages of the proceedings may be express, or it may be implied from the defendant’s voluntary absence. Capuzzo v. State, 596 So. 2d 438, 439-40 (Fla.1992); Miller, 833…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Moore v. State, 694 So. 2d 836 (Fla. 2d DCA 1997)
- Papageorge v. State, 710 So. 2d 53 (Fla. 4th DCA 1998)
- Mascorro v. State, 652 So. 2d 958 (Fla. 2d DCA 1995)