SHAWN E. WILLIAMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the restitution award must be reversed because it was based on inadmissible hearsay evidence presented over objection.
The victim testified about damage to his stolen car, and the State submitted repair estimates as evidence of the loss. The defendant objected to the e…
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KELLY, Judge.
Shawn Williams appeals from an order imposing restitution. Because the State improperly relied on hearsay evidence to prove the amount of restitution, we reverse and remand for a new restitution hearing.
At the restitution hearing, the victim testified that before his 1989 Ford Mustang GT was stolen it was painted red and was in good condition. When the car was returned to him, it was painted primer gray, the transmission was “messed up,” and the molding was missing from around the windshield and doors. Over Williams’ objection, the prosecutor gave the court an estimate for $1033.38 from “JR’s Four by Four” to fix the transmission and an estimate of $2370.40 from “Hot Wheels Paint and Body Shop” for painting the car, replacing the molding, and fixing a few dents in the door. The trial court’s restitution award was based on these two estimates, which were purely hearsay. Hearsay evidence may be used to determine the amount of restitution if there is no objection to the evidence. However, as Williams argues and the State concedes, Williams made a proper objection to the evidence which should have been sustained. See Moore v. State, 694 So. 2d 836 (Fla. 2d DCA 1997); Thomas v. State, 581 So. 2d 992 (Fla. 2d DCA 1991). Therefore, this court must reverse and remand for a new restitution hearing. See Sherwood v. State, 832 So. 2d 926 (Fla. 2d DCA 2002) (reversing for a new restitution hearing where award was based on improper hearsay evidence concerning the cost of repairs to an automobile).
Upon remand, the State has the burden of proving the amount of loss by a preponderance of the evidence. Moore, 694 So. 2d at 837. The State can meet its burden “by presenting testimony of a witness with knowledge of the amount of damage and repairs, or by presenting uncontested documentary evidence.” C.S. v. State, 617 So. 2d 863, 864 (Fla. 1st DCA 1993).
Reversed and remanded.
FULMER and DAVIS, JJ., Concur.
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Cited By (18 total)
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T.J.N. v. State, 977 So. 2d 770 (Fla. 2d DCA 2008)…ne else has said the damages might be and an individual who is qualified to provide an expert opinion of the fair market value of the cost of repairs to the damaged property. In re M.C.L., 110 S.W. 3d 591, 595 (Tex.App.2003); see Williams v. State, 850 So. 2d 627, 628 (Fla. 2d DCA 2003) (reversing restitution award which was based on hearsay evidence from the prosecutor regarding estimates for repair of a vehicle); Craft v. State, 769 So. 2d 1096, 1097 (Fla. 2d DCA 2000) (reversing restitution award because…
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Butler v. State, 970 So. 2d 919 (Fla. 1st DCA 2007)…be used to determine the amount of restitution if there is no objection to the evidence. However, as [defendant] argues and the State concedes, [defendant] made a proper objection to the evidence which should have been sustained.” Williams v. State, 850 So. 2d 627, 628 (Fla. 2d DCA 2003)(reversing and remanding for a new restitution hearing). “On remand, written estimates may suffice, so long as they satisfy the requirements of business records under section 90.803(6), Florida Statutes (2005), or are uncontes…
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Gilileo v. State, 923 So. 2d 612 (Fla. 2d DCA 2006)…97). The burden of proving salvage value is on the State. Kern v. State, 726 So. 2d 353, 354 (Fla. 5th DCA 1999). An alternative measure of restitution when stolen items are damaged and then returned is cost of repair. See, e.g., Williams v. State, 850 So. 2d 627 (Fla. 2d DCA 2003). Use of this measure would require the trial court to determine that the airplane engine can in fact be restored to its pretheft state. Because the trial court’s restitution award was not based on competent evidence, we reverse f…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
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)
- C.S. v. State, 617 So. 2d 863 (Fla. 1st DCA 1993)
- Sherwood v. State, 832 So. 2d 926 (Fla. 2d DCA 2002)