SYNTHIA NICKELSON-IPPOLITO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Affirmed conviction for equity skimming and scheming to defraud, but reversed ten restitution orders that were improperly based on hearsay evidence from non-testifying victims.
When restitution amount is disputed, the state must prove the victim's loss by preponderance of evidence, and hearsay evidence cannot be used when the defense properly objects.
[1] Hearsay evidence cannot be used to establish the amount of restitution when the defense properly objects and the amount is disputed, requiring the state to prove victim l…
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Join FLexlaw to unlock all legal intelligence“When the amount of restitution is in dispute ... the state has the burden of demonstrating by a preponderance of the evidence the amount of the victim's loss.”
Establishing the evidentiary standard for restitution disputes
Synthia Nickelson-Ippolito was convicted of equity skimming and scheming to defraud. At the restitution hearing, the state presented testimony from fo…
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Synthia Nickelson-Ippolito appeals her conviction and sentence for equity skimming and scheming to defraud, raising four issues. We find no merit in her challenges to her conviction, and affirm those issues without discussion. However, we reverse ten of the trial court’s restitution orders because, as the State acknowledges, they were improperly based on hearsay evidence.
At the restitution hearing, the State presented the testimony of four victims to establish their losses. The State also introduced, over defense counsel’s objection, the trial testimony of several other victims seeking restitution. This was error. “When the amount of restitution is in dispute ... the state has the burden of demonstrating by a preponderance of the evidence the amount of the victim’s loss.” Thomas v. State, 581 So.2d 992, 993 (Fla. 2d DCA 1991). Hearsay evidence may not be used to determine the amount of restitution when there is a proper objection by the defense to such evidence. Id. Because defense counsel properly objected to the State’s introduction of hearsay evidence, we reverse the orders awarding restitution to those victims who did not testify at the hearing and remand to the trial court for a new hearing. See Williams v. State, 850 So.2d 627 (Fla. 2d *1258DCA 2003) (reversing and remanding for a new restitution hearing where the award was based on improper hearsay).
Affirmed in part, reversed in part, and remanded.
CASANUEVA, C.J., and CRENSHAW, J., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Nickelson v. State, 30 So. 3d 707 (Fla. 2d DCA 2010)…he amount of restitution and by relying instead on the victim’s trial testimony to set the amount of restitution over Nickelson’s objection. The State properly concedes error. As we did in Nickelson’s codefendant’s case, Nickelson-Ippolito v. State, 17 So. 3d 1257 (Fla. 2d DCA 2009), we reverse and remand for a new restitution hearing. Reversed and remanded for further proceedings. WHATLEY and KELLY, JJ., Concur.…
Authorities Cited
- Thomas v. State, 581 So. 2d 992 (Fla. 2d DCA 1991)
- Williams v. State, 850 So. 2d 627 (Fla. 2d DCA 2003)