GEORGE BIANCHINI, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant was convicted of contracting without a license and agreed to pay restitution to elderly victims. The trial court awarded $23,975 in restitution based partly on hearsay testimony about roof deficiencies, which the appellate court found insufficient to support the award amount.
The restitution award must be reversed because it was based on hearsay evidence to which the defense properly objected, resulting in no competent evidence regarding the actual amount of damages suffered. Restitution may be ordered for damage caused by unlicensed contracting work, but only when supported by competent evidence.
[1] A restitution award must be based on competent evidence.
[2] Hearsay evidence may not be used to determine the amount of restitution when there is a proper objection by the defense.
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Join FLexlaw to unlock all legal intelligence“A restitution award "must be based on competent evidence."”
Establishes the fundamental requirement that restitution awards require competent evidence support
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Join FLexlaw to unlock all legal intelligenceAppellant, charged with a felony, negotiated a plea to the misdemeanor offense of contracting without a license and agreed to pay restitution to be de…
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We reverse the restitution award entered in this case because there was no competent evidence to support the extent of the award.
After being charged with a felony, appellant entered a negotiated plea to the misdemeanor offense of contracting without a license1 and agreed to pay restitution in an amount to be later determined at a restitution hearing.
The victims in this case were an elderly couple. Their son, who had a du-*248rabie power of attorney to handle his parents’ checking accounts, was the only witness at the restitution hearing. The son testified, properly, that his parents paid appellant $20,000 for a roofing job and $4,000 for other repairs. As to the deficiencies in the roof, however, the son testified, over appellant’s hearsay objection, on what roof inspectors told him was wrong with the roof. The trial court made a restitution award of $23,975.
A restitution award “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 adjustor, “bas[ed] his testimony on an estimate he had received from an auto body shop”; thus, “[n]o competent evidence was presented concerning the amount of the damages”).
Here, the state introduced only hearsay evidence at the restitution hearing as to how the roof was deficient and what it would take to remedy the deficiency; appellant objected to this hearsay. There was, therefore, no competent evidence concerning the amount of damages actually suffered by the victims, as opposed to the amount they paid appellant. We reverse and remand for a new restitution hearing concerning the amount of restitution.
We reject appellant’s argument that restitution was inappropriate because any loss or damage was not “causally connected” to the offense of contracting without a license. Restitution is authorized for “[djamage or loss caused directly or indirectly by the defendant’s offense” and for “[djamage or loss related to the defendant’s criminal episode.” § 775.089(l)(a)1.2., Fla. Stat. (2005). One purpose of the statute criminalizing unlicensed contracting is to ensure that certain contractors meet minimum levels of competence.2 Deficient workmanship on the contracted job is “related” to the offense of contracting without a license.
Reversed.
MAY, C.J., and WARNER, J., concur.
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Citator
Cited By
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State v. Davis, 133 So. 3d 1101 (Fla. 3d DCA 2014)…dicia of reliability.” Box v. State, 993 So. 2d 135 (Fla. 5th DCA 2008). But see, Smith v. State, 941 So. 2d 479 (Fla. 3d DCA 2006) (restitution amount could not be based solely upon hearsay evidence to which defendant objected); Bianchini v. State, 77 So. 3d 247 (Fla. 4th DCA 2012) (hearsay not admissible in a restitution hearing when there is a proper objection to its admission); T.J.N. v. State, 977 So. 2d 770 (Fla. 2d DCA 2008) (same). Restitution is a criminal sanction and considered a part of the sente…
Authorities Cited
- Glaubius v. State, 688 So. 2d 913 (Fla. 1997)
- State v. Liscio, 423 So. 2d 624 (Fla. 4th DCA 1982)
- T.J.N. v. State, 977 So. 2d 770 (Fla. 2d DCA 2008)
- McKOWN v. State, 46 So. 3d 174 (Fla. 4th DCA 2010)
- Bigelow v. State, 997 So. 2d 1249 (Fla. 5th DCA 2009)