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Johnson v. State

District Court of Appeal of Florida, Fifth District
Oct 17, 2003
856 So. 2d 1085 (Fla. Dist. Ct. App. 2003)

Summary

reversing and remanding restitution awarded based solely on hearsay

Summary of this case from J.A.B. v. State

Opinion

Case No. 5D02-3720.

Opinion filed October 17, 2003.

Appeal from the Circuit Court for Volusia County, R. Michael Hutcheson, Judge.

James B. Gibson, Public Defender, and A. S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.


Appellant challenges the restitution order entered against him after he pled guilty to exploitation of an elderly person. After hearing, the trial court awarded restitution in the amount of $450,534.57. We reverse and remand for a new restitution hearing.

At the restitution proceeding, State presented testimony from the victim's attorney, the victim's daughter, and an affidavit from the victim's accountant. We think this testimony was insufficient to support the restitution award because it was speculative and hearsay.

The victim's attorney testified only to statements made to him by the victim. This could not form the basis of the restitution award. Miller v. State, 833 So.2d 318 (Fla. 2d DCA 2003).

The victim's daughter testified that the victim had a net worth of between $750,000 and $2,000,000 before the victim met Appellant, but that her net worth had diminished to $100,000. Even if this testimony was properly admitted over Appellant's foundation objection, it was far too speculative to support the restitution award. Henry v. State, 840 So.2d 1170 (Fla. 2d DCA 2003). The victim's daughter also presented a compilation listing checks purportedly written on the victim's accounts and payable to Appellant. No 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). Nevertheless, the trial court erroneously relied upon the document over a timely objection based upon hearsay. Herrington v. State, 823 So.2d 286 (Fla. 1st DCA 2002) ("Because the trial court erred in setting the amount of restitution based on hearsay evidence to which the defendant objected, we reverse the restitution order . . . and remand for another restitution hearing.") The remainder of the victim's daughter's testimony was either too vague or too speculative to properly form the basis of the restitution award. See Gladius v. State, 688 So.2d 913 (Fla. 1997) (evidence in support of restitution order must be competent).

Finally, as to the accountant's affidavit, Appellant objected to its introduction on the basis that "there's no way for me to cross examine the person who made the affidavit." Although not textbook, we think this was sufficient to apprise the trial court of the nature of the legal objection. See Layman v. State, 728 So.2d 814 (Fla. 5th DCA 1999). Therefore, it was error to base an award of restitution on this document. Moore v. State, 694 So.2d 836 (Fla. 2d DCA 1997).

REVERSED and REMANDED.

SAWAYA, C.J., and PALMER, J. concur.


Summaries of

Johnson v. State

District Court of Appeal of Florida, Fifth District
Oct 17, 2003
856 So. 2d 1085 (Fla. Dist. Ct. App. 2003)

reversing and remanding restitution awarded based solely on hearsay

Summary of this case from J.A.B. v. State

noting that the testimony used to support the restitution award was improper, in part, because it was based on hearsay

Summary of this case from Toole v. State

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)."

Summary of this case from Mckown v. State
Case details for

Johnson v. State

Case Details

Full title:WILLIAM RONALD JOHNSON, Appellant, v. STATE OF FLORIDA, Appellee

Court:District Court of Appeal of Florida, Fifth District

Date published: Oct 17, 2003

Citations

856 So. 2d 1085 (Fla. Dist. Ct. App. 2003)

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