Dreyer v. State Of Fla., Case No. 2D07-3903

• Decision Date: 22 September 2010
• Docket Number: Case No. 2D07-3903
• Parties: WILLIAM DREYER, Appellant, v. STATE OF FLORIDA, Appellee.
• Court: Florida District Court of Appeals

WILLIAM DREYER, Appellant,

v.STATE OF FLORIDA, Appellee.

Case No. 2D07-3903

District Court Of Appeal

Of Florida

Second District

Opinion filed September 22, 2010.

William Dreyer, pro se.

Bill McCollum, Attorney General, Tallahassee, and Elba C. Martin-Schomaker, Assistant Attorney General, Tampa, for Appellee.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

Appeal from the Circuit Court for Pinellas County; Dee Anna Farnell and Bruce Boyer, Judges.

MORRIS, Judge.

William Dreyer appeals his conviction and sentence for exploitation of the elderly, as well as an order and judgment requiring him to pay restitution in the amount of $31,570. We affirm Dreyer's conviction and sentence without comment, but wereverse the order and judgment of restitution because the only evidence supporting the amount of restitution was hearsay evidence.

"When the amount of restitution is in dispute, as in this case, the state has the burden of demonstrating by a preponderance of the evidence the amount of the victim's loss." Thomas v. State, 581 So. 2d 992, 993 (Fla. 2d DCA 1991). When a defendant objects to hearsay evidence at a restitution hearing, the hearsay evidence is inadmissible to prove the amount of restitution. See Moore v. State, 694 So. 2d 836, 837 (Fla. 2d DCA 1997); Thomas, 581 So. 2d at 993. It is improper for a witness to offer hearsay testimony regarding determinations of value that the witness received from other people. See Atkins v. State, 728 So. 2d 288, 289 (Fla. 2d DCA 1999).

Here the State presented the testimony of Detective Adams to establish the amount of money Dreyer stole from the victim. However, Detective Adams did not have personal knowledge of that amount; rather, she received that information from employees of the victim's financial institutions and from financial statements from those institutions. Because Dreyer objected to Detective Adams' testimony on the basis of hearsay, it was improperly admitted.

In addition, the State introduced into evidence, over Dreyer's objection, the financial statements to show the amount stolen from the victim. Detective Adams was the only witness for the State, and she did not have the requisite knowledge to establish the proper foundation for the admission of the financial statements under the business records exception to the hearsay rule. See § 90.803(6)(a), Fla. Stat. (2008); Medlock v. State, 537 So. 2d 1030, 1031 (Fla. 2d DCA 1988) ("[Section 90.803(6)(a)] clearly require[s] the records custodian or other qualified person employed by the bank totestify regarding the necessary predicate...