THOMAS BENNETT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Thomas Bennett appeals his extortion conviction, challenging the trial court's $115,000 restitution award. The appellate court agrees that the State failed to present legally sufficient evidence of the actual amount of restitution owed, as the award was based on speculative testimony rather than concrete documentation, and reverses and remands for a new restitution hearing.
The court held that the restitution award was not supported by substantial competent evidence and reversed the award. The court remanded the case for the trial court to conduct a new evidentiary hearing to determine the appropriate amount of restitution based on concrete evidence rather than speculative testimony.
[1] The State bears the burden of proving the amount of restitution by a preponderance of the evidence and must establish it with substantial competent evidence.
[2] Restitution awards must be based on concrete or documentary evidence, not mere speculation or guesstimates.
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Join FLexlaw to unlock all legal intelligence“The burden of proving the amount of restitution is on the State, and the amount must be proved by a preponderance of the evidence. Restitution must be proved by substantial competent evidence.”
Establishes the legal standard for restitution awards and places the burden on the State to prove the amount through competent evidence.
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Join FLexlaw to unlock all legal intelligenceBennett was convicted of extortion following threats and demands for money made to a victim. At sentencing, the trial court ordered $115,000 in restit…
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POLEN, J.
Appellant, Thomas Bennett, appeals a final judgment and conviction for extortion. Following threats and demands for money made to a victim, Bennett was charged with one count of extortion and was adjudicated guilty in a bench trial. Bennett was sentenced to five years in prison, followed by two years of community control, followed by three years of probation. The trial court also ordered Bennett to pay $115,000 in restitution, and immediately converted this into a civil lien. Bennett argues that the State did not produce legally sufficient evidence proving the amount of restitution actually owed as a result of his conviction for extortion. Bennett argues that the award of restitution was based solely on speculative testimony, rather than concrete or documentary evidence. We agree, and reverse and remand for the trial court to conduct a new evidentiary hearing to determine the appropriate amount of restitution.
The trial court’s order on restitution is reviewed using an abuse of discretion standard. Koile v. State, 902 So. 2d 822, 824 (Fla. 5th DCA 2005). “The burden of proving the amount of restitution is on the State, and the amount must be proved by a preponderance of the evidence. Restitution must be proved by substantial competent evidence.” Id. “Such evidence must be established through more than mere speculation; it must be based on competent evidence.” Glaubius v. State, 688 So. 2d 913, 916 (Fla. 1997). A victim’s testimony, without documentation, is not enough to support an award of restitution. See State v. Schuette, 782 So. 2d 935, 937 (Fla. 4th DCA 2001).
In this case, the private investigator hired by the victim testified:
Most of the money [the victim] paid to our people early on was to protect him and his family. I think the investigation phase was probably around between eighteen and twenty-thousand dollars. The protection phase including exchanging homes, hotels, and everything, I would guess he probably spent a hundred-thousand dollars.
(Emphasis added.) The victim testified: “I was out-of-pocket over a hundred-thousand dollars because of Mr. Bennett’s actions against me.” This testimony, without more, was not enough to support the trial court’s award of $115,000 in restitution. Neither the private investigator nor the victim presented concrete evidence of these expenses, and the private investigator seemed unsure of exactly how much the investigation had cost. Guesstimates and speculative testimony are inappropriate evidence on which to base an award of restitution. While reasonable investigative costs are an appropriate basis for a restitution award, the amount of such costs must be established by more than speculative testimony. See Glaubius, 688 So. 2d at 914-916.
We reverse the award of restitution and remand to the trial court with instructions to conduct an evidentiary hearing to determine the appropriate amount of restitution.
KLEIN and MAY, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (21 total)
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Gonzalez v. State, 40 So. 3d 86 (Fla. 4th DCA 2010)…The defendant now appeals the restitution order, arguing the trial court erred in entering the order because the evidence was legally insufficient. We disagree. We review trial court restitution orders for an abuse of discretion. Bennett v. State, 944 So. 2d 524, 525 (Fla. 4th DCA 2006). The State bears the burden of proving the amount of restitution, which “must be proved by a preponderance of the evidence” and supported “by substantial competent evidence.” Id. (quoting Koile v. State, 902 So. 2d 822, 824…
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Hunter v. State, 48 So. 3d 174 (Fla. 4th DCA 2010)…ds that the award is not supported by substantial, competent evidence. We agree. A trial court’s restitution order is reviewed under an abuse of discretion standard. Wolff v. State, 981 So. 2d 651, 653 (Fla. 4th DCA 2008) (quoting Bennett v. State, 944 So. 2d 524 (Fla. 4th DCA 2006)). Restitution must be proved by substantial, competent evidence and this evidence must be greater than mere speculation. Id. (citations omitted). “A victim’s testimony, without documentation, is not enough to support an award of…
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Rodriguez v. State, 956 So. 2d 1226 (Fla. 4th DCA 2007)…a victim as to the amount of their loss is insufficient to sustain a restitution order. See Glaubius v. State, 688 So. 2d 913, 916 (Fla.1997); Peters v. State, 555 So. 2d 450, 451 (Fla. 4th DCA 1990). We addressed a similar case in Bennett v. State, 944 So. 2d 524 (Fla. 4th DCA 2006). In Bennett, a private investigator hired by the victim testified that the victim spent “probably ... between eighteen and twenty-thousand dollars” on the investigation. 944 So. 2d at 526. As to the victim’s protection expenses,…
Previewing 3 of 21 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Glaubius v. State, 688 So. 2d 913 (Fla. 1997)
- Koile v. State, 902 So. 2d 822 (Fla. 5th DCA 2005)
- State v. Schuette, 782 So. 2d 935 (Fla. 4th DCA 2001)