LAURIE MCKOWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Laurie McKown pleaded no contest to exploiting an elderly person and was ordered to pay restitution of $17,798.17 based on a detective's unauthenticated summary of ATM transactions. The Florida Fourth District Court of Appeal reversed the restitution order, holding that the state failed to lay proper predicate for admission of the bank records and that unauthenticated hearsay cannot be used to determine restitution amounts.
The court held that the summary was inadmissible hearsay because: (1) bank statements require testimony from the records custodian or qualified bank employee to establish necessary predicate before admission; (2) a compilation prepared by a non-testifying party cannot be authenticated or shown to meet the minimal requirements of section 90.956; and (3) hearsay evidence cannot be used to determine restitution when properly objected to by the defense.
[1] The state bears the burden of proving the amount of restitution by a preponderance of the evidence.
[2] Bank statements offered to prove the amount of restitution are inadmissible hearsay without the testimony of the records custodian to establish the necessary predicate fo…
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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.”
Establishes the state's burden in restitution proceedings
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Join FLexlaw to unlock all legal intelligenceMcKown pleaded no contest to exploitation of an elderly person in an amount less than $20,000 and was placed on five years' probation. At the restitut…
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Appellant, Laurie McKown, pleaded no contest pursuant to a plea offer to a charge of exploitation of an elderly person in an amount less than $20,000. She was placed on five years’ probation and after a hearing, was ordered to pay restitution in the amount of $17,798.17. We reverse the order of restitution and remand for a new restitution hearing.
At the restitution hearing, through the testimony of the victim, Helen Seaman, the state offered into evidence a summary of ATM transactions, compiled by a detective who did not testify and based upon unauthenticated bank records, to prove the amount of restitution. McKown objected to the admission of the summary into evidence, arguing that no predicate was laid for its admission and it was hearsay. The state argued that it had given notice to McKown under section 90.956, Florida *175Statutes (2009), that it would be using charge summaries or calculations. The trial court overruled the objection and admitted the summary into evidence as proof of the amount of restitution owed.
In Sage v. State, 988 So.2d 150 (Fla. 4th DCA 2008), this court held:
We review restitution orders for abuse of discretion. See Yaun v. State, 898 So.2d 1016, 1017 (Fla. 4th 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.’ ” Bennett v. State, 944 So.2d 524, 525 (Fla. 4th DCA 2006) (quoting Koile v. State, 902 So.2d 822, 824 (Fla. 5th DCA 2005)). “ ‘Such evidence must be established through more than mere speculation; it must be based on competent evidence.’ ” Bennett, 944 So.2d at 525-26 (quoting Glaubius v. State, 688 So.2d 913, 916 (Fla.1997)). Moreover, “ ‘[wjhere restitution is part of a plea bargain, it should be liberally construed in favor of making the victim whole.’ ” Yaun, 898 So.2d at 1017 (quoting Hercule v. State, 655 So.2d 1256, 1257 (Fla. 3d DCA 1995)).
Sage, 988 So.2d at 151-52.
While the victim had her bank statements with her in court, a predicate was not laid for their authenticity or reliability. Section 90.803(6)(a), Florida Statutes (2009), requires that the records custodian or other qualified bank employee testify to the necessary predicate before bank statements may be admitted into evidence. Without laying that foundation, the evidence is inadmissible hearsay. See Medlock v. State, 537 So.2d 1030 (Fla. 2d DCA 1989) (bank statements offered to prove the defendant’s unauthorized withdrawals were inadmissible hearsay without the testimony of the records custodian regarding the necessary predicate). “Hearsay evidence may not be used to determine the amount of restitution when there is a proper objection by the defense to such evidence.” Bigelow v. State, 997 So.2d 1249, 1250 (Fla. 5th DCA 2009). “[T]he State is still not permitted to admit any and all hearsay. Rather, the trial court may only allow hearsay having some minimal indicia of reliability to 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 render it admissible as a summary pursuant to section 90.956, Florida Statutes (2001).” Id. at 1086-87.
The trial court erroneously relied upon the summary, and the victim’s testimony therefrom, over McKown’s timely objection based upon hearsay. The state did not introduce any other evidence of restitution owed. Accordingly, we reverse and remand for a new restitution hearing.
Reversed and Remanded.
TAYLOR, HAZOURI and CIKLIN, JJ., concur.
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Loyal R. Cayea, Jr. v. Citimortgage, Inc., 138 So. 3d 1214 (Fla. 4th DCA 2014)…6)(a), Fla. Stat. “Summaries” of such business records may be admitted so long as the summary is authenticated by the party who prepared it and the presenting party complies with the notice requirements set forth in section 90.956. McKown v. State, 46 So. 3d 174, 175 (Fla. 4th DCA 2010). See § 90.956, Fla. Stat. (2012) (“When it is not convenient to examine in court the contents of voluminous writings, recordings, or photographs, a party may present them in the form of a chart, summary, or calculation by ca…
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Bianchini v. State, 77 So. 3d 247 (Fla. 4th DCA 2012)…must be based on competent evidence.” Glaubius v. State, 688 So. 2d 913, 916 (Fla.1997). “ ‘Hearsay evidence may not be used to determine the amount of restitution when there is a proper objection by the defense to such evidence.’ ” McKown v. State, 46 So. 3d 174, 175 (Fla. 4th DCA 2010) (quoting Bigelow v. State, 997 So. 2d 1249, 1250 (Fla. 5th DCA 2009)); see also T.J.N. v. State, 977 So. 2d 770, 773-74 (Fla. 2d DCA 2008) (reversing a restitution award, in part, because the state’s witness, an insurance ad…
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Cricket Kathleen Toole v. State, 270 So. 3d 371 (Fla. 4th DCA 2019)…ch the opinion is based." (citation omitted) ). See generally Ehrhardt , supra note 47, at 707 ("Lay opinion based on hearsay evidence is not admissible."). See Box v. State, 993 So. 2d 135, 139 (Fla. Dist. Ct. App. 2008) ; accord McKown v. State, 46 So. 3d 174, 175 (Fla. Dist. Ct. App. 2010). To the extent that the "minimal indicia of reliability" requirement has been interpreted by some courts as a "relaxed evidentiary standard in restitution hearings," State v. Davis, 133 So. 3d 1101, 1106 n.6 (Fla. Dis…1 / 2
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Glaubius v. State, 688 So. 2d 913 (Fla. 1997)
- Koile v. State, 902 So. 2d 822 (Fla. 5th DCA 2005)
- Hercule v. State, 655 So. 2d 1256 (Fla. 3d DCA 1995)
- Cisneros v. Cisneros, 944 So. 2d 524 (Fla. 4th DCA 2006)
- Bennett v. State, 944 So. 2d 524 (Fla. 4th DCA 2006)
- Yaun v. State, 898 So. 2d 1016 (Fla. 4th DCA 2005)
- Medlock v. State, 537 So. 2d 1030 (Fla. 2d DCA 1988)
- Johnson v. State, 856 So. 2d 1085 (Fla. 5th DCA 2003)
- BOX v. State, 993 So. 2d 135 (Fla. 5th DCA 2008)
- Sage v. State, 988 So. 2d 150 (Fla. 4th DCA 2008)