ESMIE HECTOR & DIANA MCPHERSON, APPELLANTS,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed the restitution award because it exceeded the victim's testified loss and was not supported by a preponderance of the evidence, but affirmed that ability to pay need not be determined at the time of imposition.
A restitution award must be supported by a preponderance of the evidence and cannot exceed the amount of loss testified to by the victim.
[1] A restitution award must be supported by a preponderance of the evidence and cannot exceed the amount of loss established by victim testimony.
[2] Ability to pay for restitution must be determined at the time of enforcement, not at the time of imposition.
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Join FLexlaw to unlock all legal intelligenceEsmie Hector and Diana McPherson were convicted of organized fraud and grand theft and ordered to pay restitution and investigative costs as probation…
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GREEN, Judge.
Esmie Hector & Diana McPherson challenge the trial court’s order requiring them to pay restitution and investigative costs as conditions of their probation which resulted from convictions for organized fraud and grand theft.
The state acknowledges that the amount of restitution awarded by the trial court was not fully supported by the evidence. The restitution award was $1200 more than the amount of loss testified to by the victim. According to section 775.089(l)(a), Florida Statutes (2000 ), “the court shall order the defendant to make restitution to the victim for: 1. Damage or loss caused directly or indirectly by the defendant’s offense.... ” However, “[a]ny dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence.” § 775.089(7), Fla. Stat. (2000). The amount of restitution ordered by the court was not supported by the preponderance of the evidence. We therefore reverse.
Appellants also contend that the trial court erred in not determining their ability to pay before imposing restitution. We disagree. Section 775.089(6)(b), Florida Statutes (2000), requires only that the ability to pay be determined at the time of enforcement, not imposition. See Pickett v. State, 678 So. 2d 857, 858 n. 1 (Fla. 5th DCA 1996).
Reversed and remanded for further proceedings consistent with this opinion.
THREADGILL, A.C.J., and SALCINES, J., concur.
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J.A.B. v. State, 993 So. 2d 1150 (Fla. 2d DCA 2008)…ubsections 775.089(6)(a) and (b) now require the court to consider only the amount of the loss sustained by the victim. The financial resources and needs of the defendant may only be considered at the time of enforcement. See, e.g., Hector v. State, 784 So. 2d 1207, 1208 (Fla. 2d DCA 2001). This amendment to the statute was enacted in 1995. See ch. 95-160, § 1, at 1623, Laws of Fla. The juvenile statute, however, continues to provide that restitution “may not exceed an amount the child and the parent or guardi…
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State v. Shields, 31 So. 3d 281 (Fla. 2d DCA 2010)…by her post-injury pregnancy should not be borne by him. However, the State is correct that the amount of restitution awarded is inadequate and not supported by the preponderance of the evidence. See § 775.089(7), Fla. Stat. (2008); Hector v. State, 784 So. 2d 1207, 1208 (Fla. 2d DCA 2001). Further, Mr. Shields’ ability to pay the amounts ordered is a factor to be considered at the time of enforcement, not at imposition. See Hector, 784 So. 2d at 1208 (citing § 775.089(6)(b), Fla. Stat. (2000), and Pickett v.…
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Bass v. State, 873 So. 2d 569 (Fla. 2d DCA 2004)…t be record evidence sufficient to support a finding that the State proved by a preponderance of the evidence that $131 was included in the amount for which Bass was required to make restitution. See § 775.089(7), Fla. Stat. (2000); Hector v. State, 784 So. 2d 1207, 1207 (Fla. 2d DCA 2001). Because the record before us does not show that the State met its burden, we must direct that $131 be stricken from the order and judgment of restitution. We reverse the sentence in part and remand for the trial court to…
Authorities Cited
- Pickett v. State, 678 So. 2d 857 (Fla. 5th DCA 1996)