Attorney for Criminal Restitution Hearings
In criminal cases in Florida, the prosecutor can request restitution to compensate the victim for damages they incurred as a result of the criminal act. Often, the court will order the defendant to pay restitution as part of probation.
Many times the amount of restitution requested by the alleged victim 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 decide the issue after the evidence is presented at a restitution hearing. You have a right to be represented by an attorney at the restitution hearing.
The state might make a motion for an order for restitution as part of the defendant’s sentence or within sixty (60) days after sentencing. The state might also file a motion for entry of a civil restitution lien under section 960.292, Florida Statutes.
At Sammis Law Firm, our attorneys represent clients during restitution hearings. Fighting for a fair determination of the restitution amount at the hearing is often less expensive than 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 restitution must be imposed at sentencing or within sixty (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.
In these cases, it is crucial to immediately contest any restitution amount as soon as you become aware of the request for a restitution order.
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:
- the original cost:
- the manner in which the items were used:
- their general condition and quality” and
- the percentage of depreciation.’
Id. at 114-15.
Restitution is Limited to the Actual Loss
Before a trial court can 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).
“To be causally connected to an offense, the restitution awarded must arise out of the offense with which the defendant is actually charged.” Id. 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.
Sufficient Evidence Must be Presented to Show Fair Market Value
When determining the restitution amount, 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.
In Ibrahim v. State, 866 So.2d 749, 750 (5th DCA 2004), the court found 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 the property is adequate to compensate the victim for the loss even though that amount is less than the replacement value.
When calculating the fair market value, the Court can take into consideration the following:
- what the item originally cost;
- the way in which the item was used;
- the condition of the item at the time the loss occurred; 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, the 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 Used 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 decisions after a restitution hearing.
For example, Florida Statute § 775.089(1)(a), Fla. Stat., instructs 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.
For instance, in Williams v. State, 850 So.2d 627, 628 (2d DCA 2003), the trial court reversed a restitution award based on hearsay testimony by the 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 the 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 the court’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.”
The prosecutors might try to get around the hearsay rule by presenting written opinions or estimates under a business record exception to the hearsay rule under section 90.803(b), Florida Statutes.
These documents do not qualify under this hearsay exception when the estimate is not a regularly conducted business activity. See Butler v. State, 970 So.2d 919, 920-21 (1st DCA 2007).
Read more about restitution hearings for unlicensed contracting cases.
Restitution Hearings under Florida Statute Section 775.089(7)
Florida Statute Section 775.089(7) provides:
- (a) While the primary purpose of restitution is to compensate the victim, it also serves the rehabilitative and deterrent goals of the criminal justice system.
- (b) Restitution must be determined on a fair market value basis unless the state, victim, or defendant shows that using another basis, including, but not limited to, replacement cost, purchase price less depreciation, or actual cost of repair, is equitable and better furthers the purposes of restitution.
- (c) Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence. The court may consider hearsay evidence for this purpose, provided it finds that the hearsay evidence has a minimal indicia of reliability. The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense is on the state attorney. The burden of demonstrating the present financial resources and the absence of potential future financial resources of the defendant and the financial needs of the defendant and his or her dependents is on the defendant. The burden of demonstrating such other matters as the court deems appropriate is upon the party designated by the court as justice requires.
Constitutional Amendments Concerning Restitution
In 2018, Floridians voted to amend the state constitution to, in part, address restitution. Art. I, § 16, Fla. Const. (2018) (Constitutional ballot Amendment 6, also known as Marsy’s Law). The amendment ensures the victim’s right to:
- full restitution and to be provided with assistance collecting restitution;
- have any monies or property collected from any person who has been ordered to make restitution be first applied to the restitution owed to the victim before paying any amounts owed to the government; and
- compensation as provided by the law.
See Art. I, § 16, Fla. Const. (2018).
Finding an Attorney for a Restitution Hearing in Hillsborough County
In many criminal cases, the restitution hearing is an essential part of the case. When restitution is ordered, but the defendant does not pay the restitution as ordered, the court can issue a warrant for violation of probation.
An experienced attorney can fight for the lowest amount of restitution. Getting the restitution amount lowered can make a huge difference in the client’s ability to complete probation.
Contact the attorneys at Sammis Law Firm if you need to hire an attorney or lawyer to represent you in a criminal case where you expect restitution to be an important issue.
We also represent clients in direct criminal appeals and post-conviction motions.
This article was last updated on Thursday, December 29, 2022.
