STEPHEN VINCENT BARONE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Stephen Vincent Barone appealed his convictions for organized fraud, identity theft, grand theft, and money laundering. The appellate court affirmed all convictions and sentences but reversed the restitution order because it was entered without a hearing, requiring remand for proper restitution proceedings.
The restitution order was improper and must be reversed and remanded for a proper hearing because due process requires a formal hearing on restitution amounts, and a trial court cannot enter a restitution order without a hearing absent an explicit agreement by the defendant.
[1] A trial court must conduct a restitution hearing when a defendant objects to the amount of restitution sought by the state, absent a waiver of the hearing.
[2] The state bears the burden of proving a victim's loss by a preponderance of the evidence when restitution is sought in a criminal proceeding.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“When restitution is sought in a criminal proceeding, the State has the burden of proving a victim's loss by the preponderance of the evidence.”
Establishes the evidentiary burden the State must meet to impose restitution in criminal cases.
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Join FLexlaw to unlock all legal intelligenceBarone was convicted of organized scheme to defraud, criminal use of personal identification, grand theft amounts of $100,000 or more and $20,000 or m…
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After careful consideration, we affirm Appellant’s convictions of organized scheme to defraud, criminal use of personal identification, grand theft of $100,000 or more, grand theft of $20,000 or more, and two counts of money laundering financial instruments totaling or exceeding $100,000. We also, affirm Appellant’s sentences which consist of several five and ten year concurrent prison terms followed by twenty years probation. However, we reverse the restitution order that required Appellant to pay $508,031.79 to Chase Bank and $56,964.67 to Wells Fargo Bank because it was entered without a hearing *1236and without Appellant’s waiver of a hearing. We remand for the trial court to conduct a hearing regarding restitution and for’ entry of an amended restitution order.
When restitution is sought in a criminal proceeding, the State has the burden of proving a victim’s loss by the preponderance of the evidence. Moore v. State, 643 So.2d 2, 2 (Fla. 2d DCA 1994). A trial court should not enter a restitution order without a hearing absent an agreement by the defendant. See Bell v. State, 652 So.2d 1192, 1193 (Fla. 4th DCA 1995) (“Appellant’s alternative argument (that the court should not, absent agreement by Appellant, determine the amount of restitution without a hearing when one is requested) has merit.” (citing Miller v. State, 603 So.2d 114 (Fla. 4th DCA 1992); Pellot v. State, 582 So.2d 124 (Fla. 4th DCA 1991))).
Below, Appellant specifically objected to the restitution amounts proposed for Chase Bank and Wells Fargo Bank and requested the trial court to conduct a restitution hearing. Although the trial court indicated that a hearing would be permitted, it nevertheless entered the restitution order without conducting a hearing. In Gardipee v. State, 620 So.2d 255, 255 (Fla. 2d DCA 1993), the appellant objected to the amount of restitution being requested by the state during the sentencing hearing. While the trial court stated that the appellant would be permitted a restitution hearing, it was never held. The trial court later entered a restitution order based upon bills submitted by the victim at the sentencing hearing. On appeal, the' Second District Court of Appeal reversed the restitution order and remanded for a restitution hearing. Id. (citing Reynolds v. State, 598 So.2d 188 (Fla. 1st DCA 1992)). Due process requires a formal hearing on the amount of restitution. L.S. v. State, 975 So.2d 554, 555 (Fla. 4th DCA 2008), We reverse the restitution order and remand with, instructions for the trial court to conduct a restitution hearing consistent with section 775,089(6)(a)-(b), Florida Statutes (2016).
AFFIRMED IN PART, REVERSED IN PART, REMANDED WITH INSTRUCTIONS.
PALMER and EVANDER, JJ., concur.
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Lewis v. State (Fla. 2d DCA 2020)…antial evidence. See D.C. v. State, 109 So. 3d 1264, 1266 (Fla. 2d DCA 2013) (citing Molter v. State, 892 So. 2d 1115, 1117 (Fla. 2d DCA 2004)). Additionally, "[d]ue process requires a formal hearing on the amount of restitution." Barone v. State, 222 So. 3d 1235, 1236 (Fla. 5th DCA 2017) (citing L.S. v. State, 975 So. 2d 554, 555 (Fla. 4th DCA 2008)). Lewis objected to the amount of restitution and requested hearing on the matter, but no such hearing was held. Had Lewis raised this issue on appeal, it wou…
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Feldman v. State (Fla. 2d DCA 2023)…mount of restitution and requests a hearing, a trial court's failure to hold such a hearing requires a reversal of the restitution order." (alteration in original) (quoting Lewis v. State, 288 So. 3d 1232, 1235 (Fla. 2d DCA 2020))); Barone v. State, 222 So. 3d 1235, 1236 (Fla. 5th DCA 2017) ("A trial court should not enter a restitution order without a hearing absent an agreement by the defendant."). Accordingly, we reverse and remand for the trial court to hold a restitution hearing. Affirmed in part; revers…
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Authorities Cited
- Pellot v. State, 582 So. 2d 124 (Fla. 4th DCA 1991)
- Reynolds v. State, 598 So. 2d 188 (Fla. 1st DCA 1992)
- Bell v. State, 652 So. 2d 1192 (Fla. 4th DCA 1995)
- L.S. v. State, 975 So. 2d 554 (Fla. 4th DCA 2008)
- Gardipee v. State, 620 So. 2d 255 (Fla. 2d DCA 1993)
- Ulysses Moore v. State, 643 So. 2d 2 (Fla. 2d DCA 1994)
- Miller v. State, 603 So. 2d 114 (Fla. 4th DCA 1992)
- Ellis v. Ellis, 603 So. 2d 114 (Fla. 4th DCA 1992)