Rae v. State, 93-3584

• Decision Date: 22 June 1994
• Docket Number: No. 93-3584,93-3584
• Parties: 19 Fla. L. Weekly D1354 James RAE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 597

638 So.2d 597

19 Fla. L. Weekly D1354

James RAE, Appellant, v. STATE of Florida, Appellee.

No. 93-3584.

District Court of Appeal of Florida Fourth District.

June 22, 1994.

Richard L. Jorandby, Public Defender, Tanja Ostapoff and Pamala Hanna, Asst. Public Defenders, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Joan L. Greenberg, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

Having plead nolo contendere to grand theft, appellant contests the amount of restitution imposed by the trial court. We reverse the order of restitution ¹ and remand for further proceedings consistent herewith.

Appellant's plea resulted from his embezzlement of funds paid by purchasers to his employer's used car business. Appellant would take money from customers, give them a receipt, but would not credit their accounts. The employer's president, David Absec, claimed that appellant had taken about $2,797, and in support of his testimony regarding the amount of money taken, introduced handwritten receipts, ledger sheets (including notations by Absec thereon), and statements of customers allegedly made to him.

Appellee claims that the receipts were written and signed by appellant. If so, they would be admissible under the party-opponent exception to the hearsay rule. ² Appellant's brief has not refuted the contention that the receipts were written and signed by appellant. Although the receipts, together with the potentially admissible ledger sheets, would support restitution, they do not total $2,797, the amount of restitution ordered by the trial court.

In the present case, the ledger sheets would have been admissible under section 90.803(7) to show that the company did not receive certain sums of money from customers, if appellee had introduced testimony to lay the proper foundation. ³ Absec probably could have testified as to the required foundation because he was the owner of the business and sometimes collected the money himself. However, the state's failure to introduce testimony laying the proper foundation was fatal to the application of this exception. Quick v. State, 450 So.2d 880, 881 (Fla. 4th DCA 1984).

Moreover, there were notations made by Absec on the ledgers, which were not admissible under the business records exception because they were made in anticipation of litigation and not in the regular course of business. ⁴ Furthermore, "[w]henever a record is made for the purposes of preparing for litigation, its trustworthiness is suspect and should be closely scrutinized." Charles W. Ehrhardt, Florida Evidence Sec. 803.6 (1994).

Finally, the statements of the customers, as testified to by Absec, do not fall within any hearsay exception. Although section 90.803(7) might be read to allow Absec to testify that the ledger sheets/business records show the company did not receive payment from certain customers, the statements of the customers--which became notations on the ledger sheets--that they did in fact pay, are not within the purview of section 90.803(6) or (7).

The above errors were not harmless.

ANSTEAD, GLICKSTEIN and WARNER, JJ., concur.

1 The trial court erroneously believed hearsay evidence was admissible in a restitution hearing. The general rule is that hearsay testimony is not admissible in a restitution hearing unless defense counsel fails to properly object to the evidence. Thomas v. State, 581 So.2d 992, 993 (Fla. 2d DCA 1991); Strickland v. State, 610 So.2d 705 (Fla. 4th DCA 1992) (trial court may not rely on unsworn testimony); see also Langston v. State, 616 So.2d 597 (Fla. 4th DCA 1993) (trial court has affirmative duty to conduct restitution hearing to determine credibility of witnesses and may not rely upon written statements from witnesses in lieu of hearing), rev. denied, 626 So.2d 206 (Fla.1993).

2 Section...