McKown v. State
2010 Fla. App. LEXIS 16292
Fla. Dist. Ct. App.2010Background
- McKown pleaded no contest to exploitation of an elderly person for under $20,000 and received five years' probation with restitution of $17,798.17.
- At restitution hearing, the state introduced a summary of ATM transactions based on unauthenticated bank records, from a detective who did not testify.
- McKown objected, arguing no predicate for admission and that the evidence was hearsay; the state claimed notice under section 90.956 that charge summaries would be used.
- The trial court admitted the summary as evidence of the restitution amount.
- Sage v. State held that restitution must be proven by a preponderance of competent evidence, with proper foundation, and construed in favor of victims when part of a plea bargain.
- Bank statements were not authenticated and did not have the predicate required by section 90.803(6)(a); the evidence was inadmissible hearsay without custodian testimony; the summary was not properly authenticated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of the restitution evidence | McKown contends no predicate and it is hearsay. | State maintains proper notice and admissibility under 90.956. | Admission improper; reversible error; new restitution hearing required. |
| Sufficiency of evidence to prove restitution | McKown challenges reliance on unauthenticated records. | State argues the summary supports restitution amount. | Evidence insufficient; must be based on competent evidence. |
| Remedy for improper restitution proof | Restitution should be reassessed at a new hearing with proper procedure. | Not specified beyond admission of existing evidence. | Remand for a new restitution hearing. |
Key Cases Cited
- Sage v. State, 988 So.2d 150 (Fla. 4th DCA 2008) (restoration burden and admissibility of evidence; requires competent evidence)
- Medlock v. State, 537 So.2d 1030 (Fla. 2d DCA 1989) (bank records require custodian predicate; hearsay concerns)
- Johnson v. State, 856 So.2d 1085 (Fla. 5th DCA 2003) (admission of compilations requires identifiable author/predicate)
- Yaun v. State, 898 So.2d 1016 (Fla. 4th DCA 2005) (restitution should be liberally construed to make victim whole)
- Bennett v. State, 944 So.2d 524 (Fla. 4th DCA 2006) (restoration proof standards; preponderance requirement)
- Koile v. State, 902 So.2d 822 (Fla. 5th DCA 2005) (evidence standards for restitution; reliance on hearsay cautioned)
- Box v. State, 993 So.2d 135 (Fla. 5th DCA 2008) (hearsay minimal reliability; not all hearsay admissible in restitution)
- Bigelow v. State, 997 So.2d 1249 (Fla. 5th DCA 2009) (limitations on admitted hearsay in restitution context)