Stephen v. Barone v. State

District Court of Appeal of Florida

Stephen v. Barone v. State

222 So. 3d 1235, 2017 WL 3091219, 2017 Fla. App. LEXIS 10488

CourtDistrict Court of Appeal of Florida

DecidedJuly 21, 2017

DocketCase 5D16-1225

StatusPublished

Cited by1 cases

This text of 222 So. 3d 1235 (Stephen v. Barone v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Stephen v. Barone v. State, 222 So. 3d 1235, 2017 WL 3091219, 2017 Fla. App. LEXIS 10488 (Fla. Ct. App. 2017).

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Opinion

EDWARDS, J.

After careful consideration, we affirm Appellant’s convictions of organized scheme to defraud, criminal use of personal identification, grand theft of $100,000 or more, grand theft of $20,000 or more, and two counts of money laundering financial instruments totaling or exceeding $100,000. We also, affirm Appellant’s sentences which consist of several five and ten year concurrent prison terms followed by twenty years probation. However, we reverse the restitution order that required Appellant to pay $508,031.79 to Chase Bank and $56,964.67 to Wells Fargo Bank because it was entered without a hearing *1236 and without Appellant’s waiver of a hearing. We remand for the trial court to conduct a hearing regarding restitution and for’ entry of an amended restitution order.

When restitution is sought in a criminal proceeding, the State has the burden of proving a victim’s loss by the preponderance of the evidence. Moore v. State, 643 So.2d 2, 2 (Fla. 2d DCA 1994). A trial court should not enter a restitution order without a hearing absent an agreement by the defendant. See Bell v. State, 652 So.2d 1192, 1193 (Fla. 4th DCA 1995) (“Appellant’s alternative argument (that the court should not, absent agreement by Appellant, determine the amount of restitution without a hearing when one is requested) has merit.” (citing Miller v. State, 603 So.2d 114 (Fla. 4th DCA 1992); Pellot v. State, 582 So.2d 124 (Fla. 4th DCA 1991))).

Below, Appellant specifically objected to the restitution amounts proposed for Chase Bank and Wells Fargo Bank and requested the trial court to conduct a restitution hearing. Although the trial court indicated that a hearing would be permitted, it nevertheless entered the restitution order without conducting a hearing. In Gardipee v. State, 620 So.2d 255, 255 (Fla. 2d DCA 1993), the appellant objected to the amount of restitution being requested by the state during the sentencing hearing. While the trial court stated that the appellant would be permitted a restitution hearing, it was never held. The trial court later entered a restitution order based upon bills submitted by the victim at the sentencing hearing. On appeal, the' Second District Court of Appeal reversed the restitution order and remanded for a restitution hearing. Id. (citing Reynolds v. State, 598 So.2d 188 (Fla. 1st DCA 1992)). Due process requires a formal hearing on the amount of restitution. L.S. v. State, 975 So.2d 554, 555 (Fla. 4th DCA 2008), We reverse the restitution order and remand with, instructions for the trial court to conduct a restitution hearing consistent with section 775,089(6)(a)-(b), Florida Statutes (2016).

AFFIRMED IN PART, REVERSED IN PART, REMANDED WITH INSTRUCTIONS.

PALMER and EVANDER, JJ., concur.

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EDWARDS, J.

After careful consideration, we affirm Appellant’s convictions of organized scheme to defraud, criminal use of personal identification, grand theft of $100,000 or more, grand theft of $20,000 or more, and two counts of money laundering financial instruments totaling or exceeding $100,000. We also, affirm Appellant’s sentences which consist of several five and ten year concurrent prison terms followed by twenty years probation. However, we reverse the restitution order that required Appellant to pay $508,031.79 to Chase Bank and $56,964.67 to Wells Fargo Bank because it was entered without a hearing *1236 and without Appellant’s waiver of a hearing. We remand for the trial court to conduct a hearing regarding restitution and for’ entry of an amended restitution order.

When restitution is sought in a criminal proceeding, the State has the burden of proving a victim’s loss by the preponderance of the evidence. Moore v. State, 643 So.2d 2, 2 (Fla. 2d DCA 1994). A trial court should not enter a restitution order without a hearing absent an agreement by the defendant. See Bell v. State, 652 So.2d 1192, 1193 (Fla. 4th DCA 1995) (“Appellant’s alternative argument (that the court should not, absent agreement by Appellant, determine the amount of restitution without a hearing when one is requested) has merit.” (citing Miller v. State, 603 So.2d 114 (Fla. 4th DCA 1992); Pellot v. State, 582 So.2d 124 (Fla. 4th DCA 1991))).

Below, Appellant specifically objected to the restitution amounts proposed for Chase Bank and Wells Fargo Bank and requested the trial court to conduct a restitution hearing. Although the trial court indicated that a hearing would be permitted, it nevertheless entered the restitution order without conducting a hearing. In Gardipee v. State, 620 So.2d 255, 255 (Fla. 2d DCA 1993), the appellant objected to the amount of restitution being requested by the state during the sentencing hearing. While the trial court stated that the appellant would be permitted a restitution hearing, it was never held. The trial court later entered a restitution order based upon bills submitted by the victim at the sentencing hearing. On appeal, the' Second District Court of Appeal reversed the restitution order and remanded for a restitution hearing. Id. (citing Reynolds v. State, 598 So.2d 188 (Fla. 1st DCA 1992)). Due process requires a formal hearing on the amount of restitution. L.S. v. State, 975 So.2d 554, 555 (Fla. 4th DCA 2008), We reverse the restitution order and remand with, instructions for the trial court to conduct a restitution hearing consistent with section 775,089(6)(a)-(b), Florida Statutes (2016).

AFFIRMED IN PART, REVERSED IN PART, REMANDED WITH INSTRUCTIONS.

PALMER and EVANDER, JJ., concur.

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Bluebook (online)

222 So. 3d 1235, 2017 WL 3091219, 2017 Fla. App. LEXIS 10488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stephen-v-barone-v-state-fladistctapp-2017.

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