D.W.E., A MINOR CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court reversed a juvenile delinquency finding for resisting an officer without violence, holding that the State failed to prove the lawful execution of a legal duty by not introducing the pickup order into evidence.
The court held that the trial court erred in denying D.W.'s motion for a judgment of dismissal because the State failed to introduce the pickup order into evidence.
D.W. was charged with resisting an officer without violence. The State's theory was that the officer was executing a lawful duty by arresting D.W. pur…
The full statement of facts, procedural history, and disposition for this case are member content.
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D.W.E. appeals his adjudication as a delinquent and his disposition, challenging only the restitution order. The trial court awarded restitution in the amount of $1990 to the victim of D.W.E.’s burglary. This award was based, in part, on the victim’s testimony about damage to a window, in which the victim stated: “Well, we had it just bolted shut and the gentleman estimated $220 for it.” This testimony was admitted over a proper objection that the gentleman’s estimate was hearsay. Without this testimony, there was no evidence to support this element of the award of restitution.
Accordingly, we reverse the restitution award and remand for a new restitution hearing. In light of additional issues raised before the trial court at this restitution hearing in early 2008, we suggest that the trial court consider the following recent decisions at the next restitution hearing. See Malarkey v. State, 975 So.2d 538 (Fla. 2d DCA 2008) (holding that restitution cannot be based on items not referred to in information, arrest warrant, or state’s original discovery materials); J.A.B. v. State, 993 So.2d 1150 (Fla. 2d DCA 2008) (explaining that when ordering restitution from an unemployed juvenile, court must determine what the child may reasonably be expected to earn upon finding suitable employment and must base the restitution amount on those expected earnings).
Affirmed in part, reversed in part, and remanded.
SILBERMAN and CRENSHAW, JJ., concur.
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Citator
Cited By
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Carroll v. State (Fla. 1st DCA 2024)
Authorities Cited
- Malarkey v. State, 975 So. 2d 538 (Fla. 2d DCA 2008)
- J.A.B. v. State, 993 So. 2d 1150 (Fla. 2d DCA 2008)