JAMES COOKS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A defendant convicted of grand theft was ordered to pay $8,000 in restitution based solely on a probable cause affidavit, without testimony or evidence at the sentencing hearing establishing the value of stolen merchandise. The court reversed the restitution order, holding that restitution must be supported by substantial competent evidence meeting specific requirements.
A restitution order must be supported by substantial competent evidence establishing the amount of loss by a preponderance of the evidence. The trial court erred in setting restitution at $8,000 based only on the probable cause affidavit without testimony or evidence proving the value of the stolen merchandise.
[1] Restitution must be proven by substantial competent evidence.
[2] The state bears the burden of proving the amount of loss by a preponderance of the evidence when the proper amount of restitution is disputed.
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Join FLexlaw to unlock all legal intelligence“Restitution must be proved by substantial competent evidence. Where the proper amount of restitution is in dispute, the burden is on the state to prove the amount of the loss by a preponderance of the evidence.”
Establishes the foundational standard that restitution requires competent evidence and burden of proof is on the State
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Join FLexlaw to unlock all legal intelligenceCooks was charged with grand theft after a probable cause affidavit indicated he confessed to stealing approximately $8,000 in merchandise from his em…
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In this case involving a conviction for grand theft, we confront an order fixing restitution without evidence and consequently reverse. In the probable cause affidavit, which was the basis for the charge, the officer stated that defendant had essentially confessed to stealing approximately $8,000 in merchandise from his employer. Defendant pleaded guilty, and a sentencing and restitution hearing was set for a later day.
At the hearing, the State requested a continuance on the issue of restitution because it had no witnesses to testify as to the value of the stolen goods. Defendant objected to a continuance and prayed for no restitution because of the failure of evidence. At that point the trial judge referred to the probable cause affidavit and decided to set the amount of restitution at $8,000, saying “I want to set an amount now so you can start paying it back.”
Later defendant filed a motion to correct the sentencing order by deleting the amount for restitution. He argued that he had sought to obtain evidence as to the precise merchandise claimed and the appropriate amount for it. The State objected on the grounds that defendant had agreed to pay $8,000. The court denied the motion. Defendant now appeals the order on restitution.
In Soriano v. State, 968 So.2d 112 (Fla. 4th DCA 2007), we explained:
“ ‘Restitution must be proved by substantial competent evidence.’ ... Where the proper amount of restitution is in dispute, the burden is on the state to prove the amount of the loss by a preponderance of the evidence. § 775.089(7), Fla. Stat. ‘Such evidence must be established through more than mere speculation; it must be based on competent evidence.’ ‘The mere speculation or opinion of a victim as to the amount of their loss is insufficient to sustain a restitution order.’...
At a minimum, owners of stolen property should be required to identify what items were stolen in order to obtain restitution.... ‘Fair market value may be established either through direct testimony or through production of evidence relating to all of the following four criteria: (1) the original cost, (2) the manner in which the items were used, (3) their general condition and quality, and (4) the percentage of depreciation.’ ” [c.o.]
968 So.2d at 114-15. Contrary to the State’s argument there is no evidence of either an agreement by defendant to pay a specific sum or evidence complying with the foregoing requirements of proof.
Reversed.
HAZOURI and CIKLIN, JJ„ concur.