FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Pinellas County; Thane B. Covert,
L. Dimmig, II, Public Defender, and John C. Fisher, Assistant
Public Defender, Bartow, for Appellant.
Moody, Attorney General, Tallahassee, and Helene S. Parnes,
Senior Assistant Attorney General, Tampa, for Appellee.
Lewis challenges his convictions and sentences for grand
theft and money laundering. Lewis was convicted following a
jury trial and sentenced to twenty years in prison on each
count to be served concurrently. He was also ordered to pay
$240, 938 in restitution to Chicago Title Insurance Company.
Lewis raises two issues on appeal: that the trial court erred
in denying his motion for a continuance to procure a witness
and that the trial court erred in awarding restitution in the
absence of competent substantial evidence to support the
amount of the award. We affirm the convictions and
twenty-year sentences without comment but reverse the
restitution award and remand for further proceedings.
Giordano's home was facing foreclosure, and she was put
in contact with Lewis, who claimed to be an expert in short
sales. Lewis became Ms. Giordano's broker and led her to
believe that he was communicating with her mortgagee, Allied
Mortgage Investment Fund II, LLC, regarding a short sale of
her home. Instead, Lewis orchestrated a series of fraudulent
acts in order to secure a reverse mortgage from Plaza Home
Mortgage, Inc., in the amount of approximately $194, 000,
allegedly to be used to purchase Ms. Giordano's home. The
closing took place at Online Title Services. And at the time
of the closing, Online Title Services was underwritten by
Chicago Title. Ms. Giordano signed two U.S. Department of
Housing and Urban Development (HUD) settlement statements at
the closing, one for the short sale and one for the reverse
mortgage. The short sale HUD statement indicated a payoff of
$143, 500 for the first mortgage to M Caster Home Finance,
Lewis's fictitious company, and the reverse mortgage HUD
statement indicated a payoff for the first mortgage to M
Caster Home Finance in the amount of $239, 500.
Giordano later began receiving foreclosure notices from
Allied Mortgage, and she ultimately lost her home. Ms.
Giordano later learned that the payoff funds had not been
sent to Allied Mortgage but to Lewis's codefendant, Eric
Green, through Green's "charity,"
Everyone's Youth United. Thereafter, a check from
Everyone's Youth United was deposited into Lewis's
personal account. Online Title's single ledger balance
report as well as its bank statement indicated that it
received $194, 641.65 from Plaza Home Mortgage. The single
ledger balance report and bank statement also showed a
transfer of funds in the amount of $143, 500 to
Everyone's Youth United. Various other
disbursements-totaling approximately $50, 000-were made by
Online Title pertaining to the transactions. Detective
Kavanagh, the lead investigator on the case, testified that
Online Title's single ledger balance indicated that $143,
500 was disbursed to Green, representing "the loss in
this deal." In response to Lewis's motion for
judgment of acquittal, the State argued that "the amount
of the theft as a whole is at least $143, 500" but
"could possibly be as high as $196, 000." And
during closing argument the State asserted that the evidence
established that "Plaza [Home Mortgage] was victimized
for [$]196, 000 or [$]143, 000."
sentencing hearing the State argued as follows with regard to
The restitution that we will be seeking is $240, 938 and that
will be to Chicago Title Insurance Company. That reflects not
just the money that was taken in this case, but the damages
that Chicago Title Insurance Company suffered as a result of
having to pay out the insurance claim.
When the property in question in this case was insured, they
had to insure the full value of the property, not just the
amount being lent. And since the original lender, Allied
[Mortgage], repossessed the property, Plaza Home Mortgage, in
turn, their insurance company, Chicago Title, was out the
value of the property, not just the amount that was taken.
objected to the State's request, arguing that because
Chicago Title obtained the home and resold it, it suffered no
loss; he also requested a restitution hearing. The State then
asserted that "[t]he testimony at the trial is that
Allied Mortgage repossessed the house. Plaza [Home Mortgage]
didn't get it, therefore, there is no way for Chicago
Title to sell it. Chicago Title reimbursed Plaza [Home
Mortgage]." The State also argued that testimony
presented during trial supported the amount of restitution
requested. Lewis again objected, arguing that he had not
"seen any paperwork pertaining to that." In
response the court stated, "Well, I am going to impose
$240, 938 as restitution, based on the evidence presented
during trial as to Chicago Title's loss." This was
error as no such evidence was presented during trial.
An appellate court reviews orders of restitution for abuse of
discretion. Koile v. State, 902 So.2d 822, 824 (Fla.
5th DCA 2005). Unless "clear and compelling
reasons" dictate otherwise, the trial court is required
to order restitution to crime victims for "[d]amage or
loss caused directly or indirectly by the defendant's
offense." § 775.089(1)(a)(1), Fla. Stat. (2004).
"The burden of proving the amount of restitution is on
the State, and the amount must be proved by a preponderance
of the evidence. Restitution must be proved by substantial
competent evidence." Koile, 902 So.2d at 824
(citations omitted); see also § 775.089(7).
However, the restitution amount may not exceed the damage the
criminal conduct caused the victim. Morel v. State,
547 So.2d 341, 342 (Fla. 2d DCA 1989) (citing Fresneda v.
State, 347 So.2d 1021 (Fla. 1977)).
Gilileo v. State, 923 So.2d 612, 613-14 (Fla. 2d DCA
2006) (alteration in original); accord Danzey v.
State, 186 So.3d 1064, 1065 (Fla. 2d DCA 2016)
("Although a trial court has discretion in determining
the amount of restitution, the restitution award must be
proven by competent, substantial evidence and the amount of
the award must be established by the greater weight of the