A Guide to Criminal Restitution Hearings in Florida

F.S. 775.089: Restitution

a) In addition to any punishment, 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; and

2. Damage or loss related to the defendant’s criminal episode.

F.S. 775.089(7)(c): Entitlement to a Restitution Hearing

• 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 has a “minimal indicia of reliability”.

• “When a defendant objects to restitution and requests proof by the State of the restitution amount, he is entitled to a separate hearing.” Strickland v. State, 746 So. 2d 1189 (Fla. 2nd DCA 1999). See also Noonan v. State, 709 So. 2d 635 (Fla. 2 nd DCA 1998).

• Due process requires a formal hearing on the amount of restitution, and where a defendant objects to the amount of restitution and requests a hearing, a trial court’s failure to hold such a hearing requires a reversal of the restitution order. State v. Dixon, 308 So. 3d 1121 (Fla. 2nd DCA 2020).

Timeliness of Restitution Order

• A trial court may not order restitution more than 60 days after sentencing. State v. M.C., 666 So. 2d 877 (Fla. 1995). See Fla. R. Crim. P. 3.800.

• However, the amount of restitution can be determined more than 60 days after sentencing so long as the court orders restitution within the 60-day period. L.O. v. State, 718 So. 2d 155 (Fla. 1998).

• The Florida Supreme Court in L.O. v. State indicated that a court doesn’t necessarily need to use the “magic words” that it is ordering restitution if there is competent substantial evidence in the record that the court intended to order restitution and reserve on the amount.

• As to setting restitution amounts after restitution has been ordered by the court, Florida law does not contain any “hard deadlines” apart from the mention of “timely restitution” in Article I, Section 16 of the Florida Constitution. State v. Bryant, 342 So. 3d 279 (Fla. 1st DCA 2022).

• A court ordered amount of restitution made about a year after sentencing was found to be “timely”. Gladfelter v. State, 618 So. 2d 1364, 1365 (Fla. 1993). See also State v. Maddex, 159 So. 3d 267 (Fla. 4 th DCA 2015).

Defendant’s Presence not Mandatory

• It is well settled that a defendant has the constitutional right to be present at a restitution hearing. M.W.G. v. State, 945 So. 2d 597 (Fla. 2nd DCA 2006).

• A defendant may waive this right and exercise constructive presence through counsel, but the court must conduct the proper inquiry before the proceedings commence to determine that the defendant’s waiver of the right to be present is knowing, intelligent, and voluntary. C.C.N. v. State, 1 So. 3d 1151 (Fla. 2nd DCA 2009).

• When a defendant is absent from the restitution proceedings, the State must present competent, substantial evidence proving an effective waiver and unsworn statements that the defendant had notice of the hearing is not sufficient to prove waiver. J.B. v. State, 646 So. 2d 808 (Fla. 1st DCA 1994).

Burdens of Proof in a Restitution Hearing

• A finding that a victim is entitled to a particular amount of restitution must be made by the court by a preponderance of the evidence. F.S. 775,089(7)(c).

• The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense is on the state attorney. F.S. 775,089(7)(c).

• The burden of demonstrating causation is on the state attorney. Schuette v. State, 822 So. 2d 1275 (Fla. 2002).

• 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 is on the defendant. F.S. 775,089(7)(c).

• The burden of demonstrating such other matters as the court deems appropriate is upon the party designated by the court as justice requires. F.S. 775,089(7)(c).

Causation

• The state has the burden to prove causation. The state must show that the defendant’s action was the “cause in fact” and the “legal cause/proximate cause” of the damage. Schuette v. State, 822 So. 2d 1275 (Fla. 2002).

• In order to establish that a defendant’s conduct was the “cause in fact” of a particular harm, the State usually must demonstrate that “but for” the defendant’s conduct, the harm would not have occurred. A defendant can rebut this showing by demonstrating that the harm would have occurred in any event, regardless of the defendant’s conduct. Id.

• In order to establish that a defendant’s conduct was the “legal cause/proximate cause”, court’s have considered two basic questions:

  • 1. Whether the prohibited result of the defendant’s conduct is beyond the scope of any fair assessment of the danger created by the defendant’s conduct; and

  • 2. Whether it would be otherwise unjust, based on fairness and policy considerations, to hold the defendant criminally responsible for the prohibited result. Id.

Restitution Unrelated to Charging Document or Factual Basis

• When a defendant agrees to pay restitution has part of a plea agreement, the defendant’s agreement is limited to restitution arising out of the offense charged by the state as reflected in the information and/or by the factual basis for the plea set forth by the state when the plea is entered. Malarkey v. State, 975 So. 2d 538 (Fla. 2nd DCA 2008). See also Avery v. State, 838 So. 2d 1247 (Fla. 2nd DCA 2003).

• A.D. v. State, 152 So. 3d 798 (Fla. 4th DCA 2014): Defendant who pled guilty to burglary and grand theft was not liable to pay restitution for a stolen camera, because there was no mention of the camera in the charging document or factual basis during plea.

• J.R. v. State, 141 So. 3d 780 (Fla. 2nd DCA 2014): Defendant who pled guilty burglary was not liable for victim’s vet bill from injured dog, when the bill was not mentioned in the charging document or during plea.

• James v. State, 223 So. 3d 288 (Fla. 4th DCA 2017): Court erred in awarding restitution for 20 additional pieces of pawned jewelry that were not included in the charging document or factual basis for the plea.

• It is unclear how this case law would impact situations in which the defense stipulates to a factual basis during a plea colloquy as opposed to having the factual basis proffered by the State. If you have a case that involves a reservation on restitution, it would be best to not stipulate to the factual basis and require the state to read a basis into the record to ensure that the scope of restitution is properly limited.

Amount of Restitution can Exceed the Value Indicated by the Charged Offense

• Restitution may be ordered in an amount greater than the maximum dollar value defining the offense for which a defendant is adjudicated guilty. J.O.S. v. State, 689 So. 2d 1061 (Fla. 1997).

• For example, if client is found guilty of 1st degree misdemeanor petit theft ($100 - $750), the court can still order restitution greater than $750 after a restitution hearing. Same goes for criminal mischief or any other offense that contains an element of value.

Proving the Amount of Restitution

• Restitution must be proved by substantial competent evidence. Such evidence must be established through more than mere speculation; it must be based on competent evidence. A victim’s testimony, without documentation, is not enough to support an award of restitution. Bennett v. State, 944 So. 2d 524 (Fla. 4th DCA 2006).

• See also State v. Schuette, 782 So. 2d 935, 937 (Fla. 4th DCA 2001).

Fair Market Value

• “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 purpose of restitution.” F.S. 775.089(7)(b).

• Fair Market Value Defined: The price at which property would change hands between a willing and able buyer and a willing and able seller, with neither party under compulsion to buy or sell, and when both parties have reasonable knowledge of the relevant facts. F.S. 61.075(6)(f)(I).

• Although the victim/owner’s opinion regarding the fair market value is sufficient to establish value, the victim/owner must have personal knowledge of the value and may not base his or her opinion upon hearsay. I.M. v. State, 958 So. 2d 1014 (Fla. 1st DCA 2007).

State v. Hawthorne, 573 So. 2d 330 (Fla. 1991)

• The Florida Supreme Court announced four factors which the trier of fact can consider in ascertaining “Fair Market Value”:

  • 1. The original market cost;

  • 2. The manner in which the item was used;

  • 3. The general condition and quality of the item; and

  • 4. The percentage of depreciation.

Hearsay in a Restitution Hearing

• The court may consider hearsay evidence for this purpose, provided it finds that the hearsay has a “minimal indicia of reliability”. F.S. 775.089(7)(c).

• Phillips v. State, 141 So. 3d 702 (Fla. 4th DCA 2014): Hearsay evidence may not be used to determine the amount of restitution when there is a proper objection by the defense to the hearsay evidence. The victim’s reliance on hearsay evidence from websites was insufficient to establish the restitution amount.

• I.M. v. State, 958 So. 2d 1014 (Fla. 1st DCA 2007): Although the victim/owner’s opinion regarding the fair market value is sufficient to establish value, the victim/owner must have personal knowledge of value, and may not base his or her opinion upon hearsay.

• Butler v. State, 970 So. 2d 919 (Fla. 1st DCA 2007): Written opinions or estimates may qualify as a business record exception to the hearsay rule if production of estimates is a regularly conducted business activity. To lay a proper foundation for the business record exception, the proponent of the evidence must call a witness who can show that each of the foundational requirements set out in the statute is present.

• A.J.A. v. State, 215 So. 3d 639 (5th DCA 2017): Victim who received repair estimate was unable to provide the necessary foundation for the estimate's admissibility as a business record exception and therefore it could not be the basis of the court’s determination of the amount of restitution.

Double Jeopardy Considerations

• It is well established that where a lawful sentence has been imposed and the sentencing hearing concluded, it is a violation of the defendant’s constitutional protection against double jeopardy to increase the sentence at a later time. North Carolina v. Pearce, 395U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969).

• In the context of restitution, if restitution has been ordered in a specific amount, a court cannot subsequently hold a restitution hearing and increase the amount of restitution that a defendant is required to pay. Strickland v. State, 681 So. 2d 929 (Fla. 3rd DCA 1996).

What if an Appeal is Pending?

• If a trial court reserves jurisdiction at sentencing, it may determine the amount of restitution after the date of sentencing. But, where a trial court reserves jurisdiction to determine a restitution amount at a later time and the defendant files a notice of appeal in the interim, the trial court is divested of jurisdiction over the issue while the appeal is pending. McInerney v. State, 213 So. 3d 933 (Fla. 4th DCA 2017).

• See also D.A.D. v. State, 100 So. 3d 67 (Fla. 2nd DCA 2011).