WILLIAM RONALD JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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William Johnson appealed a restitution order of $450,534.57 entered after his guilty plea to exploitation of an elderly person. The court reversed and remanded, finding that the evidence supporting the restitution award was largely speculative, hearsay, and inadmissible.
The restitution award was not supported by competent evidence and must be reversed and remanded for a new restitution hearing. The victim's attorney's testimony was hearsay, the victim's daughter's testimony was too speculative, the compilation of checks was inadmissible hearsay lacking proper foundation, and the accountant's affidavit was introduced in violation of the defendant's right to cross-examination.
[1] A restitution award cannot be based on speculative testimony.
[2] Testimony consisting of statements made by a victim to an attorney is inadmissible hearsay in a restitution proceeding.
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Join FLexlaw to unlock all legal intelligence“We think this testimony was insufficient to support the restitution award because it was speculative and hearsay.”
Establishes the core holding that the State's evidence was inadequate
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Join FLexlaw to unlock all legal intelligenceJohnson pleaded guilty to exploitation of an elderly person. At the restitution hearing, the State presented testimony from the victim's attorney, the…
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TORPY, J.
Appellant challenges the restitution order entered against him after he pled guilty to exploitation of an elderly person. After hearing, the trial court awarded restitution in the amount of $450,534.57. We reverse and remand for a new restitution hearing.
At the restitution proceeding, State presented testimony from the victim’s attorney, the victim’s daughter, and an affidavit from the victim’s accountant. We think this testimony was insufficient to support the restitution award because it was speculative and hearsay.
The victim’s attorney testified only to statements made to him by the victim. This could not form the basis of the restitution award. Miller v. State, 833 So. 2d 318 (Fla. 2d DCA 2003).
The victim’s daughter testified that the victim had a net worth of between $750,000 and $2,000,000 before the victim met Appellant, but that her net worth had diminished to $100,000. Even if this testimony was properly admitted over Appellant’s foundation objection, it was far too speculative to support the restitution award. Henry v. State, 840 So. 2d 1170 (Fla. 2d DCA 2003). The victim’s daughter also presented a compilation listing checks purportedly written on the victim’s accounts and payable to Appellant. No evidence was adduced identifying who had made the compilation, nor was any further predicate shown that would render it admissible as a summary pursuant to section 90.956, Florida Statutes (2001). Nevertheless, the trial court erroneously relied upon the document over a timely objection based upon hearsay. Herrington v. State, 823 So. 2d 286 (Fla. 1st DCA 2002) (“Because the trial court erred in setting the amount of restitution based on hearsay evidence to which the defendant objected, we reverse the restitution order ... and remand for another restitution hearing.”) The remainder of the victim’s daughter’s testimony was either too vague or too speculative to properly form the basis of the restitution award. See Glaubius v. State, 688 So. 2d 913 (Fla.1997) (evidence in support of restitution order must be competent).
Finally, as to the accountant’s affidavit, Appellant objected to its introduction on the basis that “there’s no way for me to cross examine the person who made the affidavit.” Although not textbook, we think this was sufficient to apprise the trial court of the nature of the legal objection. See Layman v. State, 728 So. 2d 814 (Fla. 5th DCA 1999). Therefore, it was error to base an award of restitution on this document. Moore v. State, 694 So. 2d 836 (Fla. 2d DCA 1997).
REVERSED and REMANDED.
SAWAYA, C.J., and PALMER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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McKOWN v. State, 46 So. 3d 174 (Fla. 4th DCA 2010)…be injected into the [restitution] proceeding.” Box v. State, 993 So. 2d 135, 139 (Fla. 5th DCA 2008) (citation omitted). The summary compiled from these bank statements also was not authenticated by the party who prepared it. In Johnson v. State, 856 So. 2d 1085 (Fla. 5th DCA 2003), the admission into evidence of a compilation of checks written on a victim’s bank account was reversed because “[n]o evidence was adduced identifying who had made the compilation, nor was any further predicate shown that would r…
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Schenk v. State, 150 So. 3d 275 (Fla. 5th DCA 2014)…d 330, 333 n. 6 (Fla.1991). However, if there is a proper objection by the defense, otherwise inadmissible hearsay may not provide the sole basis for the owner’s opinion. See T.J.N. v. State, 977 So. 2d 770, 773 (Fla. 2d DCA 2008); Johnson v. State, 856 So. 2d 1085, 1087 (Fla. 5th DCA 2003). Florida courts routinely reverse restitution awards that are based on hearsay where the defendant timely objected to the hearsay evidence. See, e.g., Butler v. State, 970 So. 2d 919, 921 (Fla. 1st DCA 2007) (“Here, Butler…
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Cricket Kathleen Toole v. State, 270 So. 3d 371 (Fla. 4th DCA 2019)…ection by the defense to the hearsay evidence."); Smith v. State, 941 So. 2d 479, 480 (Fla. Dist. Ct. App. 2006) ("We reverse and remand for a new restitution hearing because the State's evidence was improperly based on hearsay."); Johnson v. State, 856 So. 2d 1085, 1087 (Fla. Dist. Ct. App. 2003) (noting that the testimony used to support the restitution award was improper, in part, because it was based on hearsay); Herrington v. State, 823 So. 2d 286, 286 (Fla. Dist. Ct. App. 2002) (stating that the trial co…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Glaubius v. State, 688 So. 2d 913 (Fla. 1997)
- Moore v. State, 694 So. 2d 836 (Fla. 2d DCA 1997)
- Layman v. State, 728 So. 2d 814 (Fla. 5th DCA 1999)
- Williams v. State, 833 So. 2d 318 (Fla. 2d DCA 2003)
- Miller v. State, 833 So. 2d 318 (Fla. 2d DCA 2003)
- Santwan Henderson v. State, 823 So. 2d 286 (Fla. 1st DCA 2002)
- Henry v. State, 840 So. 2d 1170 (Fla. 2d DCA 2003)