Attorney for Criminal Restitution Hearings
In criminal cases in Florida, the alleged victim can request that the defendant be placed on probation to pay restitution for money damages that occurred because of the criminal act. Many times the amount requested is much higher than the amount actually owed. When the prosecutor and the defense cannot agree on the true amount of restitution owed, the trial court can order a restitution hearing. You have a right to be represented by an attorney at the restitution hearing.
At the Sammis Law Firm, we are experienced in representing our clients during restitution hearings that occur either before or after sentencing. Fighting for a fair determination of the restitution hearing is often far less expensive then potentially violating your probation because you are unable to pay the inflated amount. Contact us to discuss your criminal restitution issue for a case in Florida if you need to hire an attorney to represent you at the restitution hearing. Call 813-250-0500 to discuss your case today.
Restitution Hearings After Sentencing in a Criminal Case
Under Rule 3.800(c) of the Florida Rules of Criminal Procedure, an order on a restitution must be imposed at sentencing or within 60 days thereafter. L'Heureux v. State, 968 So.2d 628, 629 (2d DCA 2007), citing State v. Sanderson, 625 So.2d 471, 473 (Fla. 1993).
In certain cases the court may conduct the restitution hearing after the 60 day period if the court orders that restitution is paid in the probation order but states that the amount will be determined during a restitution hearing.
Restitution Hearings under Florida Law
In Soriano v. State, 968 So.2d 112 (4th DCA 2007), the Court explained:
“ ‘Restitution must be proved by substantial competent evidence.’ ... Where the proper amount of restitution is in dispute, the burden is on the state to prove the amount of the loss by a preponderance of the evidence. § 775.089(7), Fla. Stat. ‘Such evidence must be established through more than mere speculation; it must be based on competent evidence.’ ‘The mere speculation or opinion of a victim as to the amount of their loss is insufficient to sustain a restitution order.’...
At a minimum, owners of stolen property should be required to identify what items were stolen in order to obtain restitution .... ‘Fair market value may be established either through direct testimony or through production of evidence relating to all of the following four criteria: (1) the original cost, (2) the manner in which the items were used, (3) their general condition and quality, and (4) the percentage of depreciation.’ ” [c.o.]
968 So.2d at 114-15.
Restitution is Limited to the Actual Loss
Before a trial court may award restitution, "it must find that the loss or damage is causally connected to the offense and bears a significant relationship to it." Malarkey v. State, 975 So.2d 538, 540 (2d DCA 2008), citing Glaubius v. State, 688 So.2d 913, 915 (Fla. 1997) and State v. Williams, 520 So.2d 276, 277 (Fla. 1988).
"To be causally connected to an offense, the restitution awarded must arise out of the offense with which the defendant is actually charged." Malarkey, 975 So.2d at 540. "[W]hen a defendant agrees to pay restitution as part of a plea agreement, the defendant's agreement is limited to restitution arising out of the offense charged by the State [of Florida] as reflected in the information and/or by the factual basis for the plea set forth by the State when the plea is entered." Id. at 540-41 (citations omitted).
Sufficient Evidence Must be Presented to Show Fair Market Value
Florida courts have found that, absent special circumstances, the price the victim pays to replace the item should not be used. Instead, the proper determination is made by looking at the fair market value of the item. Ibrahim v. State, 866 So.2d 749, 750 (5th DCA 2004) (finding that the defendant could not be required to pay restitution for a stolen safe when no evidence was present to show the fair market value at the time the safe was stolen).
In J.F.H. v. State, 849 So.2d 1151 (5th DCA 2003) the court found that the fair market value, not replacement value, is the correct way to measure the amount of restitution. In Santana v. State, 795 So.2d 1112 (5th DCA 2001) the court reasoned that the fair market value of property is adequate to compensate the victim for the loss even though that amount is less than the replacement value.
In calucating fair market value, the Court can take into consideration what the item originally cost, the way in which the item was used, the condition of the item at the time the loss occured, and the likely percentage of depreciation. Negron v. State, 306 So.2d 104 (Fla. 1974), receded from on other grounds by, F.B. v. State, 852 So.2d 226 (Fla. 2003). In other words, if the item is used then the value is the used value of the item not the amount it would cost to go into a store and purchase a similar item that is new.
Although fair market value is not the only standard the court can use, in most cases where the fair market value would fairly compensate the victim, then those factors listed in the Negron decision should be used. In theft cases, fair market value is usually set by determining the fair market value of the stolen item at the time it was stolen. Bloodsaw v. State, 994 So.2d 378, 379 (3d DCA 2008).
Use of Replacement Value Can Be Use in Limited Circumstances
Rather than providing for a certain method of determining restitution, the Florida legislature has given certain leeway to the judges that make these decision after a restitution hearing. See § 775.089(1)(a), Fla. Stat. (2006) (instructing the trial court to award restitution for “[d]amage or loss caused directly or indirectly by the defendant's offense” or “related to the defendant's criminal episode” but does not state the specifying method to be used for determining the amount of the loss or damage).
Fair market value is the most direct way to determine the amount of restitution, but it is not necessarily the only way. For example the victim's out-of-pocket expenses to replace the lost item can be used if the victim had no choice but to immediately replace the items in that manner.
Restitution Hearings: Hearsay Objections under Florida Law
One issue that arises in Florida restitution hearings involves "hearsay testimony" in an attempt to establish an estimate of the value of an item. Instead, the prosecutor must normally present an expert who is qualified to provide an expert opinion of the fair market value of the items that were lost or the cost of repairs to the damaged property.
T.J.N. v. State, 977 So.2d 770 (4th DCA 2008); see also Williams v. State, 850 So.2d 627, 628 (2d DCA 2003) (trial court reversing restitution award based on hearsay testimony by prosecutor on estimates to repair vehicles).
In Craft v. State, 769 So.2d 1096, 1097 (2d DCA 2000), the trial court reversed after it relied on testimony from victim about an estimate received to repair a vehicle. In Atkins v. State, 728 So.2d 288, 289 (2d DCA 1999), the trial court was reversed because it's decision was based on testimony from a witness who “testified directly from information gathered and provided by two subordinates.”
In Moore v. State, 694 So.2d 836, 837 (2d DCA 1997), the trial court was reversed when it relied on testimony that “was based on information they received from an accountant who did not testify and on their examination of documents and records that were not produced at the restitution hearing.”
Prosecutors often get around the hearsay rule by presenting “written opinions or estimates may qualify as a business record exception to the hearsay rule under section 90.803(b), Florida Statutes (2006), if production of estimates is a regularly conducted business activity.” Butler v. State, 970 So.2d 919, 920-21 (1st DCA 2007).
Finding an Attorney for a Restitution Hearing in Hillsborough County
In many criminal cases the restitution hearing is a very important part of the case. When restitution is ordered but the defendant does not pay the restitution as ordered, the court can issue a violation of probation.
Having an experienced attorney that fights to the lowest amount of restitution can make a huge difference in the client's ability to successfully complete probation. Contact the attorneys at the Sammis Law Firm if you need hire an attorney or lawyer to represent you in a criminal case in which you expect restitution to be an important issue. We also represent clients in direct criminal appeals and post-conviction motions.