MICHAEL TODD ALLEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the State failed to present competent evidence of the victim's loss for restitution purposes because the evidence presented was inadmissible hearsay.
[1] A restitution award must be based upon competent evidence, and the State bears the burden of proving the amount of loss by a preponderance of the evidence.
[2] A victim's testimony regarding the estimated value of unrecovered property, based on what a store employee told them, constitutes inadmissible hearsay.
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Join FLexlaw to unlock all legal intelligenceThe defendant pleaded guilty to grand theft of a motor vehicle and was ordered to pay restitution. The victim testified to the value of stolen items u…
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Michael Allen entered a guilty plea to grand theft of a motor vehicle and was placed on probation. As a condition of probation, the trial court ordered Allen to pay restitution to the victim. In this appeal, Allen challenges the amount of restitution the trial court required him to pay. He argues that the State failed to present competent evidence of the victim’s loss. We agree and reverse the restitution order.
At the restitution hearing, the victim testified that a Coach-brand purse and wallet were in the car that Allen stole. To establish the value of the stolen items, the victim obtained a printout from a department store showing that a purse and wallet similar to hers were worth approximately $527.97. The victim also testified that in the process of stealing her car, Allen damaged her vehicle. She obtained an estimate for repairs that totaled $3006.84. Allen objected to the evidence as being hearsay. The trial court ordered Allen to pay $3000 for damage to the car and $500 for the purse and wallet. On appeal, Allen argues that the trial court erred in determining the amount of restitution based on the evidence presented by the State.
A trial judge has broad discretion when determining the amount of restitution; however, the restitution award must be based upon competent evidence. Glaubius v. State, 688 So.2d 913, 916 (Fla.1997). The State has the burden of proving the amount of loss by a preponderance of the evidence. Moore v. State, 694 So.2d 836, 837 (Fla. 2d DCA 1997).
“[A] property owner is generally qualified to testify regarding the fair market value of his or her property.” Aboyoun v. State, 842 So.2d 238, 240 (Fla. 2d DCA 2003) (citing State v. Hawthorne, 573 So.2d 330, 333 n. 6 (Fla.1991)). A victim’s testimony as to amounts actually paid, store receipts showing the cost of the items purchased, amounts others paid in the victim’s presence, and the condition of the items are competent evidence which will establish value. See Moore v. State, 47 So.3d 387, 388 (Fla. 2d DCA 2010). However, a victim’s testimony regarding what a store’s employee told her regarding the estimated value of unrecovered property is inadmissible hearsay. See id.; see also M.M.S. v. State, 877 So.2d 941, 941 (Fla. 2d DCA 2004) (holding that an estimate of a stolen ring’s value from the store where it was purchased was insufficient to establish value for restitution purposes). The testimony in this case was hearsay since the victim did not testify that she had purchased the items or that she had independent knowledge of their worth. See I.M. v. State, 958 So.2d 1014, 1016 (Fla. 1st DCA 2007) (“[The witness] did not have personal knowledge of the value of the ruined items, but relied upon the opinions of his vendors, who did not testify.”).
As for the repairs to the car, the victim described the damage to the car caused by Allen and presented a written estimate she had gotten for the repair of the vehicle. “When testimony concerning the estimated cost of repairs to damaged property is ‘offered in evidence to prove the truth of the matter asserted,’ it is ‘hearsay5 unless ‘made by the declarant while testifying at the trial or hearing.’ ” T.J.N. v. State, 977 *1057So.2d 770, 773 (Fla. 2d DCA 2008) (quoting § 90.801(1)(e), Fla. Stat. (2006)). “The ‘de-clarant’ of the estimate is the person who was responsible for making the estimate.” Id. Written estimates may qualify as a business record exception to the hearsay rule if the proponent of the evidence calls a witness who can lay a proper foundation establishing that “production of estimates is a regularly conducted business activity.” Butler v. State, 970 So.2d 919, 920-21 (Fla. 1st DCA 2007); see also § 90.803(6)(a), Fla. Stat. (2013). “Alternatively, section 90.803(6)(c) provides that the proponent can also establish the foundation by certification or declaration.” Butler, 970 So.2d at 921. Here, the State did not lay the proper foundation for the admission of the evidence. Accordingly, neither the business record exception nor any other exception applies to the written estimate. See Williams v. State, 850 So.2d 627, 628 (Fla. 2d DCA 2003) (reversing a restitution award based solely on estimates for repair of a vehicle that constituted inadmissible hearsay).
“Hearsay evidence may be used to determine the amount of restitution if there is no objection to the evidence.” Id. However, in this case, Allen made a proper objection to the evidence at the restitution hearing. Therefore, this court must reverse and remand for a new restitution hearing. See Sherwood v. State, 832 So.2d 926, 926 (Fla. 2d DCA 2002) (remanding for a new restitution hearing where award was based on improper hearsay evidence concerning the cost of repairs to an automobile).
Reversed and remanded with directions.
VILLANTI, C.J., and DAVIS, CHARLES A., Senior Judge, Concur.
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Danzey v. State, 186 So. 3d 1064 (Fla. 2d DCA 2016)…ount ■ actually paid for an item, receipts indicating the cost of the item, the amount that another paid for the item in the victim’s presence, and the condition of the stolen item “are competent evidence which will establish value.” Allen v. State, 162 So. 3d 1055, 1056 (Fla. 2d DCA 2015). However, the victim must have firsthand knowledge of the purchase price of the item, and the victim’s hearsay testimony that someone told her how much was paid for the item is insufficient. In Aboyoun v. State, 842 So. 2d 2…
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Duncan v. State, 192 So. 3d 654 (Fla. 2d DCA 2016)…tution, the restitution award must be proven by competent, substantial evidence and the amount of the award must be established by the greater weight of the evidence.” Danzey v. State, 186 So. 3d 1064, 1065 (Fla. 2d DCA 2016); accord Allen v. State, 162 So. 3d 1055, 1056 (Fla. 2d DCA 2015). Generally the amount of restitution is based on the fair market value of the property, and that value is determined by the “purchase price, the manner in which the property was used, its condition, and depreciation.” Fernan…
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Darroll E. Eveland, Jr. v. State, 189 So. 3d 990 (Fla. 2d DCA 2016)…o the revocation hearing and Eveland failed to object. See § 90.803(6)(c), Fla. Stat. (2014). Pursuant to section 90.803(6)(c), a party may establish a foundation for the admission of business records by certification or declaration. Allen v. State, 162 So. 3d 1055, 1057 (Fla. 2d DCA 2015). When a party intends to rely on a certification or declaration it must give reasonable notice, and “[a] motion opposing the admissibility of such evidence must be made by the opposing party and determined by the court befor…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- State v. Hawthorne, 573 So. 2d 330 (Fla. 1991)
- Glaubius v. State, 688 So. 2d 913 (Fla. 1997)
- Williams v. State, 850 So. 2d 627 (Fla. 2d DCA 2003)
- Moore v. State, 694 So. 2d 836 (Fla. 2d DCA 1997)
- Aboyoun v. State, 842 So. 2d 238 (Fla. 2d DCA 2003)
- T.J.N. v. State, 977 So. 2d 770 (Fla. 2d DCA 2008)
- I.M. v. State, 958 So. 2d 1014 (Fla. 1st DCA 2007)
- Butler v. State, 970 So. 2d 919 (Fla. 1st DCA 2007)
- Sherwood v. State, 832 So. 2d 926 (Fla. 2d DCA 2002)
- Cartaya Chablis Moore v. State, 47 So. 3d 387 (Fla. 2d DCA 2010)