McKown v. State, 46 So. 3d 174 (Fla. 4th DCA 2010). · Go Syfert
McKown v. State, 46 So. 3d 174 (Fla. 4th DCA 2010). Cases Citing This Book View Copy Cite
“while the victim had her bank statements with her in court, a predicate was not laid for their authenticity or reliability . . . . without laying that foundation, the evidence is inadmissible hearsay.”
7 citation events (7 in the last 25 years) across 1 distinct court.
Strongest positive: CRICKET KATHLEEN TOOLE v. STATE OF FLORIDA (fladistctapp, 2019-02-20)
Top citers, strongest first. 5 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) CRICKET KATHLEEN TOOLE v. STATE OF FLORIDA (3×) also: Cited "see"
Fla. Dist. Ct. App. · 2019 · quote attribution · 1 verbatim quote · confidence high
while the victim had her bank statements with her in court, a predicate was not laid for their authenticity or reliability . . . . without laying that foundation, the evidence is inadmissible hearsay.
discussed Cited as authority (rule) MICHAEL LOVE v. STATE OF FLORIDA
Fla. Dist. Ct. App. · 2022 · confidence medium
However, “the trial court may only allow hearsay having some minimal indicia of reliability to be injected into the [restitution] proceeding.” McKown v. State, 46 So. 3d 174, 175 (Fla. 4th DCA 2010) (alteration in original) (quoting Box v. State, 993 So. 2d 135, 139 (Fla. 5th DCA 2008)). “[T]he statements of an attorney are not evidence.” Olson v. Olson, 260 So. 3d 367, 369 (Fla. 4th DCA 2018).
cited Cited as authority (rule) Cayea v. Citimortgage, Inc.
Fla. Dist. Ct. App. · 2014 · confidence medium
McKown v. State, 46 So.3d 174, 175 (Fla. 4th DCA 2010).
discussed Cited as authority (rule) Bianchini v. State
Fla. Dist. Ct. App. · 2012 · confidence medium
A restitution award “must be based on competent evidence.” Glaubius v. State, 688 So.2d 913, 916 (Fla.1997). “ ‘Hearsay evidence may not be used to determine the amount of restitution when there is a proper objection by the defense to such evidence.’ ” McKown v. State, 46 So.3d 174, 175 (Fla. 4th DCA 2010) (quoting Bigelow v. State, 997 So.2d 1249, 1250 (Fla. 5th DCA 2009)); see also T.J.N. v. State, 977 So.2d 770, 773-74 (Fla. 2d DCA 2008) (reversing a restitution award, in part, because the state’s witness, an insurance adjustor, “bas[ed] his testimony on an estimate he had r…
discussed Cited "see" K. L. v. State of Florida
Fla. Dist. Ct. App. · 2025 · signal: see · confidence high
See McKown v. State, 46 So. 3d 174, 175 (Fla. 4th DCA 2010) (holding that hearsay bank statement summaries used by the State to prove restitution award lacked sufficient reliability).
Retrieving the full opinion text from the archive…
Laurie McKOWN, Appellant,
v.
STATE of Florida, Appellee
4D09-3772.
District Court of Appeal of Florida, Fourth District.
Oct 27, 2010.
46 So. 3d 174
Carey Haughwout, Public Defender, and Ephrat Livni, Assistant Public Defender, West Palm Beach, for appellant., Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
Taylor, Hazouri, Ciklin.
Cited by 5 opinions  |  Published
PER CURIAM.

Appellant, Laurie McKown, pleaded no contest pursuant to a plea offer to a charge of exploitation of an elderly person in an amount less than $20,000. She was placed on five years’ probation and after a hearing, was ordered to pay restitution in the amount of $17,798.17. We reverse the order of restitution and remand for a new restitution hearing.

At the restitution hearing, through the testimony of the victim, Helen Seaman, the state offered into evidence a summary of ATM transactions, compiled by a detective who did not testify and based upon unauthenticated bank records, to prove the amount of restitution. McKown objected to the admission of the summary into evidence, arguing that no predicate was laid for its admission and it was hearsay. The state argued that it had given notice to McKown under section 90.956, Florida[*175] Statutes (2009), that it would be using charge summaries or calculations. The trial court overruled the objection and admitted the summary into evidence as proof of the amount of restitution owed.

In Sage v. State, 988 So.2d 150 (Fla. 4th DCA 2008), this court held:

We review restitution orders for abuse of discretion. See Yaun v. State, 898 So.2d 1016, 1017 (Fla. 4th DCA 2005). “ ‘The burden of proving the amount of restitution is on the State, and the amount must be proved by a preponderance of the evidence.’ ” Bennett v. State, 944 So.2d 524, 525 (Fla. 4th DCA 2006) (quoting Koile v. State, 902 So.2d 822, 824 (Fla. 5th DCA 2005)). “ ‘Such evidence must be established through more than mere speculation; it must be based on competent evidence.’ ” Bennett, 944 So.2d at 525-26 (quoting Glaubius v. State, 688 So.2d 913, 916 (Fla.1997)). Moreover, “ ‘[wjhere restitution is part of a plea bargain, it should be liberally construed in favor of making the victim whole.’ ” Yaun, 898 So.2d at 1017 (quoting Hercule v. State, 655 So.2d 1256, 1257 (Fla. 3d DCA 1995)).

Sage, 988 So.2d at 151-52.

While the victim had her bank statements with her in court, a predicate was not laid for their authenticity or reliability. Section 90.803(6)(a), Florida Statutes (2009), requires that the records custodian or other qualified bank employee testify to the necessary predicate before bank statements may be admitted into evidence. Without laying that foundation, the evidence is inadmissible hearsay. See Medlock v. State, 537 So.2d 1030 (Fla. 2d DCA 1989) (bank statements offered to prove the defendant’s unauthorized withdrawals were inadmissible hearsay without the testimony of the records custodian regarding the necessary predicate). “Hearsay evidence may not be used to determine the amount of restitution when there is a proper objection by the defense to such evidence.” Bigelow v. State, 997 So.2d 1249, 1250 (Fla. 5th DCA 2009). “[T]he State is still not permitted to admit any and all hearsay. Rather, the trial court may only allow hearsay having some minimal indicia of reliability to be injected into the [restitution] proceeding.” Box v. State, 993 So.2d 135, 139 (Fla. 5th DCA 2008) (citation omitted).

The summary compiled from these bank statements also was not authenticated by the party who prepared it. In Johnson v. State, 856 So.2d 1085 (Fla. 5th DCA 2003), the admission into evidence of a compilation of checks written on a victim’s bank account was reversed because “[n]o evidence was adduced identifying who had made the compilation, nor was any further predicate shown that would render it admissible as a summary pursuant to section 90.956, Florida Statutes (2001).” Id. at 1086-87.

The trial court erroneously relied upon the summary, and the victim’s testimony therefrom, over McKown’s timely objection based upon hearsay. The state did not introduce any other evidence of restitution owed. Accordingly, we reverse and remand for a new restitution hearing.

Reversed and Remanded.

TAYLOR, HAZOURI and CIKLIN, JJ., concur.