Smith v. State, 5D01-316.

• Decision Date: 21 December 2001
• Docket Number: No. 5D01-316.,5D01-316.
• Citation: 801 So.2d 1043
• Parties: Marion Alonzo SMITH, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

801 So.2d 1043

Marion Alonzo SMITH, Appellant, v. STATE of Florida, Appellee.

No. 5D01-316.

District Court of Appeal of Florida, Fifth District.

December 21, 2001.

James B. Gibson, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and David H. Foxman, Assistant Attorney General, Daytona Beach, for Appellee.

THOMPSON, C.J.

Marion Alonzo Smith appeals his sentence following his conviction for burglary of a structure. We reverse.

During his plea and sentencing hearing, the state raised the issue of restitution:

The only other thing I would ask the Court, other than imposing the full thirty-six month term is, I would ask that a judgment be imposed against the defendant for the cost of the travel for these victims to come down here. This defendant knew well before Tuesday, that he had been working with CCIB and could have plead to the court at any other time and made this motion for a downward departure on substantial assistance without having to bring victims down here from Atlanta, Georgia, who have been here now for a week. You know, this case was set for date, time, with the certainty that it was supposed to go, and, again, like I said, I can't prevent the defendant from entering a plea but it's certainly been an inconvenience and a hardship to bring two people down here from Atlanta, Georgia for this, and I would be moving the Court, and asking the Court, that they be reimbursed for their mileage. It's four hundred twenty-five miles, I think, one way, so it would be an eight hundred fifty mile round trip. With the per diem government rate of twenty-nine cents a mile, which would come out to two hundred and forty-six dollars and fifty cents.

Their hotel stay at the rate of eighty-four dollars and seventy cents a night for five nights and their meals at the per diem government rate three dollars for breakfast, six dollars for lunch, twelve dollars for dinner for two people for five days, bringing the total amount to eight hundred and eighty dollars. And we'd ask that a judgment be entered in favor of the County Commissioners against this defendant for those expenses.

The defense objected:

I just want to object to any kind of judgment for money at this point. There's been no evidence with respect to any of these numbers. We just have the State Attorney testifying as to the numbers. It was my understanding that the [victims] were down here anyway.

The trial court denied the objection. As part of his sentence, a restitution judgment in the amount of $880.00 was entered, in favor of the county commission. Smith appeals the restitution order.

The burden of proof in a restitution matter is on the state, which must prove the proper amount of restitution by a preponderance of the evidence. See § 775.089(7), Fla. Stat. (1999). Here, there was no evidence to support any of the information proffered by the state attorney as to the victims' costs to attend what was going to be a trial but turned into a plea. The state attorney's unsworn assertions are, at best, hearsay. Hearsay alone is not sufficient to support an award of restitution. See Delks v. State, 622 So.2d 624, 625 (Fla. 2d DCA 1993)

(hearsay evidence inadmissible to prove amount of restitution where defendant made timely objection)(citing Thomas v. State, 581 So.2d 992, 993 (Fla. 2d DCA 1991)). The trial court should have conducted an evidentiary hearing once the defendant objected to the restitution amount. See Neal v. State, 688 So.2d 392 (Fla. 1st DCA 1997),

receded from on other grounds, Locke v. State, 719 So.2d 1249 (Fla.1998).

Smith further submits that the county commission "is not a victim in this case and can not receive restitution." He relies on ...