Levy v. State

• Court: District Court of Appeal of Florida
• Decided: December 2, 2015
• Docket: 2D14-2374
• Status: Published

Opinion

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

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

ARIEL LEVY, ) ) Appellant, ) ) v. ) Case No. 2D14-2374 ) STATE OF FLORIDA, ) ) Appellee. ) )

Opinion December 2, 2015.

Appeal from the Circuit Court for Sarasota County; Donna Padar Berlin, Judge.

Howard L. Dimmig, II, Public Defender, and Amanda V. Isaacs, Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Peter Koclanes, Assistant Attorney General, Tampa, for Appellee.

BADALAMENTI, Judge.

Ariel Levy appeals a restitution order issued subsequent to entering an

open guilty plea to, among other charges, burglary of an occupied dwelling. After

careful review, we reverse the portion of the restitution order awarding $5200 for the

child victims' future psychological therapy costs because that monetary amount was solely derived by hearsay testimony admitted over Levy's timely hearsay objection. We

affirm the remainder of the comprehensive restitution order without discussion.

The trial court conducted a restitution hearing across two days: September

19, 2013, and December 11, 2013. At the second restitution hearing, a victim testified

that she was told by her doctor that her two children would require mental health

therapy for "a year to two years" because of the post-traumatic stress disorder caused

by Levy's multiple burglaries of their family home. Specifically, she stated as follows:

"The doctor told me we're looking at a minimum of a year to two years possibly."

Because the victims did not seek mental health therapy until the end of November 2013,

the State had not learned of the mental health therapy restitution until just before the

hearing on December 11, 2013. The only proof of the future mental health therapy and

its cost was the victim's hearsay testimony as to what her doctor told her, to which Levy

timely objected. The trial court overruled Levy's timely hearsay objection and ordered

that he pay $5200 for future mental health therapy.

Hearsay evidence may be used to determine the amount of a restitution

award in the absence of a defendant's timely hearsay objection. Williams v. State, 850

So. 2d 627, 628 (Fla. 2d DCA 2003). Conversely, hearsay evidence is insufficient to

determine the amount of restitution if, as here, the defendant raises a timely hearsay

objection to that restitution amount. See Sanchez-Gutierrez v. State, 981 So. 2d 632,

632 (Fla. 2d DCA 2008); Williams, 850 So. 2d at 628 (holding that the trial court erred

where, over defendant's timely hearsay objection, it based the restitution award on

hearsay evidence).

-2- Accordingly, we reverse the $5200 portion of the restitution order based

on inadmissible hearsay testimony, which was admitted into evidence over Levy's timely

objection. We remand to the trial court for another restitution hearing to determine the

amount owed to the affected child victims for psychological therapy costs incurred after

the December 11, 2013, restitution hearing. See Sanchez-Gutierrez, 981 So. 2d at 633

(remanding to trial court for a new restitution hearing to determine the proper restitution

amount owed to the victims).

Affirmed in part; reversed in part; remanded.

NORTHCUTT and BLACK, JJ., Concur.

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