Ashton v. State, 5D00-1445.

• Decision Date: 01 June 2001
• Docket Number: No. 5D00-1445.,5D00-1445.
• Citation: 790 So.2d 1115
• Parties: Dana ASHTON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

790 So.2d 1115

Dana ASHTON, Appellant, v. STATE of Florida, Appellee.

No. 5D00-1445.

District Court of Appeal of Florida, Fifth District.

June 1, 2001.

Rehearing Denied August 10, 2001.

James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.

THOMPSON, C.J.

Dana Ashton appeals from a restitution order. The award arose from her conviction and sentence, after a plea, for the crimes of conspiracy to commit burglary of a dwelling¹ and grand theft².

According to the record, Ashton telephoned one of the victims, Taylor Carty, and asked the victim for a ride because Ashton's auto had broken down. While Carty was out, Ashton and a friend drove to Carty's residence, broke into the house, and stole a safe. Ashton pled guilty and was sentenced to 17 months in prison to be followed by five years of drug offender probation, conditions of which were to include the payment of restitution.

A restitution hearing was held in which the state presented the testimony of Carty alone to prove the appropriate amount of restitution. Carty testified that when her home was burglarized by Ashton and Ashton's cohort, "[a] safe with cash and a gold chain inside" was stolen. She testified that the safe held $3500 cash at the time of theft, and Ashton's trial counsel objected, suggesting that Carty "had no personal knowledge as to that amount." In response to the objection, the trial court asked the state to rephrase the question, which had been "[w]hat did you have in that safe?" Instead, the state rephrased and asked, "[d]o you know how much cash was in the safe?" Carty said "yes" and then explained that she put the cash in the safe on either the night before the burglary or the day of the burglary and counted it herself before putting it in the safe. The cash was not Carty's—it belonged to her roommate, Greg Lee. Carty testified that Lee had gone on a trip to California, but, after withdrawing the cash from a bank for the trip, had decided not to take the money with him and had the money put in the safe.

On cross-examination, defense counsel questioned Carty about the police report, which indicated the safe contained $1000.00; counsel asked Carty if she recalled telling the officer that $1000.00 was in the safe. She did not remember having said that. Defense counsel stated that in an earlier deposition Carty had said the safe contained $3000.00. At this point, Carty conceded that she was merely assuming she had counted the money, and that her testimony that there was $3500.00 in the safe was based on what her roommate had told her. The defense objected again and moved to strike the earlier testimony that there was $3500.00 in the safe, pointing out that the $3500.00 figure was based on hearsay. The trial court overruled the objection and denied the motion to strike.

The trial court orally ruled at the hearing that he would order restitution of $3000.00 cash. A written order was later entered reflecting this amount, along with the other restitution due as to other matters.

The burden of proof in proving restitution is on the state, which must prove the proper amount of restitution to be made by a preponderance of the evidence. See § 775.089(7), Fla. Stat. (1999). In reviewing the order of the trial court, we must consider whether the trial court abused its discretion. See State v. Hawthorne, 573 So.2d 330, 332-33 (Fla. 1991)("this Court has recognized that `[t]he statutory provisions requiring the imposition of restitution recognize the discretion of the trial court in determining the...