County Case No.: TT00-002528-LD
Appeal No.: DD-17
DONNA JENKINS,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
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OPINION OF THE COURT
This is an appeal from the county court of Polk County, Judge Ellen Masters presiding. The appellant was found guilty of failing to carry automobile insurance in violation of 324.022, Fla.Stat. (2000). As a condition of probation for the offense, the appellant was ordered on November 21, 2000, by the Honorable Ellen Masters, to pay $10,000.00 in restitution to the victim as a result of an automobile accident occurring between the victim and appellant. She seeks reversal raising four points on appeal. This court has jurisdiction. Fla. R. App. P. 9.030(c). The ruling of the county court is REVERSED.
I.
On November 21, 2000, the appellant was ordered to pay restitution to the victim of an automobile accident as part of her probation resulting from her failure to carry automobile insurance as required by Florida Statutes. Geoffrey B. Steiner, Esquire, was retained by appellant in late December to represent her in the restitution hearing scheduled for January 9, 2001. At the restitution hearing, counsel for Jenkins requested a continuance of the hearing, and as grounds stated that the recent retainer did not allow adequate time to investigate the claims made by the victim. Defense counsel's motion for continuance was denied. Thereafter, counsel asked the court to grant a motion in limine to prevent testimony regarding lost wages and medical bills. Defense counsel's motion in limine was denied.
During the restitution hearing, the state introduced and defense counsel objected to admission of certain documentary evidence. Defense counsel argued that such written evidence was hearsay and inadmissible. The court overruled defense counsel's objections and the evidence was admitted. This evidence was relied on by the court in calculating the amount of restitution the appellant was ordered to pay.
III.
The appellant raises four issues concerning the order of restitution: (1) the trial court abused its discretion in failing to grant counsel's motion to stay the proceedings and/or motion for a continuance; (2) the trial court abused its discretion in denying its motion in limine to exclude any evidence regarding lost wages and medical expenses arising from the criminal episode; (3) the trial court improperly admitted hearsay evidence; and (4) even if the inadmissible hearsay documents are considered, the restitution should not have been in the amount of $10,000.
IV.
The appellant first argues that the trial court abused its discretion in failing to grant counsel's motion to stay the proceedings and/or motion for a continuance. The granting or denying of a motion for continuance rests within the sound discretion of the trial judge and will not be disturbed unless a palpable abuse of discretion is demonstrated to the appellate court. Echols v. State, 484 So.2d 568, 572 (Fla. 1985); Jent v. State, 408 So.2d 1024, 1028 (Fla. 1981), cert. denied, 102 S.Ct. 2916 (1982). The record in the present case reveals that the appellant was sentenced on November 21, 2001, to six months probation, including restitution. Since the appellant disputed the amount of the victim's documented losses, a hearing was scheduled for January 9, 2001. At the hearing, defense counsel appeared and requested a stay of all of the proceedings pending the outcome of a declaratory action that had not yet been filed. The court denied the motion because it simply alleged that Adefendant anticipates filing a declaratory action@.When that motion was denied by the trial court, the appellant sought a continuance to investigate the victim's claims. However, when asked by the court how he intended to investigate and/or validate the claims, counsel informed the court that he was not sure, but he knew he wanted to pursue some type of validation.
The appellant relies on Bukowksi v. State 705 So.2d 613 (Fla. 2d DCA 1997) to support her argument. However, this case is distinguishable from Bukowski. In that case, the trial court continued proceedings on a restitution hearing to the following day where defense counsel was unable to attend due to a scheduling conflict. On appeal, the second district held that the defendant should have been allowed to retain counsel and that counsel be given enough time to prepare for the proceeding. That is not analogous to the situation at hand, where appellant's counsel had been retained in late December 2000 and had access to the documents at that time. The court finds that denial of the appellants motion to stay and/or motion for continuance was not an abuse of discretion.
The appellant's remaining arguments concern the issue of damages. Specifically, the admission of evidence concerning lost wages and medical expenses arising from the criminal episode; admission of hearsay evidence regarding damages; and the amount of the restitution order. As to these issues, the court's inquiry must begin with whether the offense of failing to carry automobile insurance required by Florida law bears a significant relationship to damages arising out of the accident. The trial court's restitution order is controlled by Florida Statute 775.089, Florida Statutes (2000), which provides:
(1)(a) In addition to any punishment, the court shall order the defendant to make restitution to the victim for:
1. Damage or loss caused directly or indirectly by the defendant's offense; and
2. Damage or loss related to the defendant's criminal episode, unless it finds clear and compelling reasons not to order such restitution.
In this case, the appellant was convicted of violating Florida Statute 324.022, (2000), which provides that the operator of a motor vehicle is required to Amaintain the ability to respond in damage for liability on accounts of accidents arising out of the use of the motor vehicle in the amount of $10,000 because of damage to, or destruction of property of others in any one crash. (Emphasis added). At the restitution hearing, the appellant argued a motion in limine to exclude any evidence of lost wages, medical expenses, and bodily injury. The court denied appellant's motion and permitted the state to introduce evidence of these damages. The appellant correctly argues that this evidence should not have been considered by the court, because these damages were not caused, directly or indirectly by her failure to provide insurance. Appellant contends that since Florida Statutes only require an operator of a motor vehicle to carry Personal Injury Protection (which relates to injuries to the insured only) and $10,000 in property damage protection, the court was only permitted to consider evidence regarding the required property damage coverage pursuant to Florida Statute 324.022.
In State v. Williams, 520 So.2d 276 (Fla. 1988), the Court held that a defendant who was convicted of leaving scene of accident with personal injuries was not required to pay restitution to the victim where damages to the victim were not caused by the defendant leaving the scene. The court reasoned that the damages arising out of the accident would have occurred with or without the defendant leaving the scene of the accident. Id at 277. Similarly, the medical bills, lost wages, and bodily injury arising out of the accident in the present case would have occurred with or without appellant's offense of not carrying the proper amount of property insurance. In other words, had the appellant carried insurance as required by law, the liability would have only extended only to the property damages. See Davis v. State, 741 So.2d 1213 (Fla. 2d DCA 1999) (defendant could not be ordered to pay restitution for items that were missing from victims property where defendant had only pled to attempted burglary); Simpson v. State, 712 So.2d 1 (Fla. 2d DCA 1997)(items of restitution awarded to murder victim's mother were either indirect, remote or not satisfactorily proven and therefore would be reversed); Ochoa v. State, 596 So.2d 515 (Fla. 2d DCA 1992).
Florida Statute 775.089(7), (2000) provides that the state must prove, by a preponderance of the evidence, that the loss sustained by the victim was a result of the offense, before restitution is appropriate. (Emphasis added). Simpson v. State, 712 So.2d 1 (Fla. 2d DCA 1997). Accordingly, evidence of damages caused by appellant's offense, i.e., not carrying the required amount of insurance, should have been limited to only that evidence relating to property damage. Allowing evidence that did not directly or indirectly relate to property damage, especially where the court relies on that evidence in the restitution order, was an abuse of discretion where the proceedings should have been limited to the resulting costs of damage to the victims vehicle.
The appellant also argues that the court improperly admitted hearsay evidence because the court admitted written vehicle repair estimates without having satisfied the requirements of the business records exception. Although a trial judge is afforded broad leeway when determining the amount of restitution, restitution must be based upon competent evidence. Glaubius v. State, 688 So.2d 913 (Fla. 1997). Any out of court statement offered to prove the truth of the matter asserted is hearsay evidence and is not admissible unless it falls under one of the recognized exceptions to the hearsay rule. Florida Evidence Code '801.1. Hearsay may not be the basis for an award of restitution. Boyle v. State, 589 So.2d 1015 (Fla. 2d DCA 1991). In the instant case, the appellant properly objected to the introduction of written repair estimates as hearsay, because they were offered into evidence to prove the matter asserted; the amount of restitution. The appellant relies on B.L.N. v. State, 722 So.2d 860 (Fla. 1st DCA 1998) in which the court held that written vehicle repair estimates did not qualify under the Business Records Exception according to '803.6 of the Florida Evidence Code. The state counters with the argument that the estimates are admissible, citing to A.J. v. State, 677 So.2d 935 (Fla. 4th DCA 1996). This court finds A.J. distinguishable from the instant case. In A.J. , the court held that medical bills are admissible as non hearsay at a restitution hearing because they are part of an implied contract to pay for medical services already rendered. Contracts, which have an independent legal significance, are often characterized as non hearsay, because the law attaches duties and liabilities to their utterance. Id. at 937. However, in the instant case, the repair estimates, of which there were three, were merely opinions rendered by different mechanics regarding their evaluation of the cost of repairing the vehicle. The victim was permitted to testify as to the amounts of these estimates. Witness testimony based on information from a non-testifying witness is improper hearsay evidence. Atkins v. State, 728 So.2d 288 (Fla. 2d DCA 1999); Moore v. State, 694 So.2d 836 (Fla. 2d DCA 1997); Thomas v. State, 581 So.2d 992 (Fla. 2d DCA 1992); C.f. Davis v. State, 707 So.2d 842 (Fla. 2d DCA 1998). These services had not yet been rendered. Accordingly, no implied contract to pay for the services had come into existence, either through payment, or partial payment and as such, the reasoning of A.J. does not apply. Thus, this court finds that the repair estimates for services not yet rendered were improperly admitted hearsay.
Finally, appellant argues that even if the inadmissible hearsay documents are considered, the restitution should not have been in the amount of $10,000. Appellant correctly notes that even adding up the most expensive estimates, the total property damage would have been $9,030.42, not $10,000.00. It is clear from the court's order that it relied on the victim's testimony regarding the medical bills and lost wages, which are inadmissible, as well as the inadmissible hearsay regarding the repair estimates in arriving at this amount.
For the foregoing reasons, this cause is REVERSED and REMANDED for another hearing to determine the amount of restitution.
ORDERED August 2001.
Charles B. Curry, Chief Judge