JOHNNY R. WILLIAMS, Appellant,
STATE OF FLORIDA, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
appeal from the Circuit Court for Liberty County. Barbara K.
of Candice K. Brower, Criminal Conflict & Civil Regional
Counsel, and Melissa J. Ford, Assistant Regional Conflict
Counsel, Tallahassee, for Appellant.
Jo Bondi, Attorney General, and Samuel B. Steinberg,
Assistant Attorney General, Tallahassee, for Appellee.
pled no contest to grand theft of $300 or more, criminal
mischief, and interfering with railroad equipment; the
factual basis for these crimes was that appellant and a
co-defendant dug up railroad culverts with the intention of
selling the culverts as scrap metal. After a separate
restitution hearing, appellant and his co-defendant were
ordered to pay $5, 050 in restitution.
challenges the restitution amount for two reasons. He first
alleges the trial court abused its discretion by ordering $5,
050 in restitution where the only evidence of that amount of
restitution came from the hearsay testimony of a railroad
employee, Carlton Strickland. He also claims the $5, 050
restitution amount was improperly based on the culverts'
replacement value instead of their fair market value. We hold
that the latter issue raised by appellant lacks merit, but
because the restitution amount was improperly based solely on
hearsay evidence, we reverse the restitution determination
and remand for a new restitution hearing.
trial court's determination of the amount of restitution
is subject to an abuse of discretion standard of
review." Soriano v. State, 968 So.2d 112, 114
(Fla. 4th DCA 2007). Here, the trial court abused its
discretion in ordering appellant and his co-defendant to pay
$5, 050 in restitution when the only evidence regarding the
restitution amount was the objected-to hearsay testimony of
is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted." §
90.801(1)(c), Fla. Stat. (2013). Hearsay is generally
inadmissible unless the evidence falls into an exception to
the hearsay rule as outlined per statute. § 90.802, Fla.
Stat. (2013). Hearsay evidence may not be used to determine a
restitution amount if there is an objection to the hearsay.
Williams v. State, 850 So.2d 627, 628 (Fla. 2d DCA
Mr. Strickland testified, over appellant's objection, to
a restitution amount of $6, 570, which would cover the cost
of labor as well as replacement of the culverts and
ballast.[*] However, Mr.
Strickland's testimony was hearsay; Mr. Strickland
explicitly testified that he was not the person who
calculated the $6, 570 estimate because such a determination
was outside of his jurisdiction: "Now, what it would
actually cost, I don't know, because that's out of my
jurisdiction." Mr. Strickland also explicitly stated,
"I have nothing to do with making the estimates."
a road master for the railroad company had made the estimate
and had e-mailed the estimate to Mr. Strickland. However, the
State never entered that e-mail or any other document
pertaining to the estimate into evidence.
State alleges Mr. Strickland's testimony was not hearsay
because it fell under the business records exception outlined
in section 90.803(6)(a), Florida Statutes (2013). However,
the business records exception is not applicable to testimony
without the business records. T.J.N. v. State, 977
So.2d 770, 773 (Fla. 2d DCA 2008); Thompson v.
State, 705 So.2d 1046, 1048 (Fla. 4th DCA 1998). Here,
without either the road master's physical estimate or his
e-mail to Mr. Strickland, Mr. Strickland's restitution
testimony was hearsay, which was appropriately objected to by
though we affirm appellant's judgment and sentence, we
REVERSE the restitution determination and REMAND for a new
restitution hearing. See ...