DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MICHAEL LOVE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D20-129
[February 2, 2022]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Timothy L. Bailey, Judge; L.T. Case No. 17-5819CF10A.
Carey Haughwout, Public Defender, and Breanna Atwood, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Heidi L. Bettendorf,
Senior Assistant Attorney General, West Palm Beach, for appellee.
KLINGENSMITH, J.
Appellant Michael Love was charged by information with one count of
grand theft and two counts of unlawful filing of false documents against
property. The jury found him guilty on all counts. He now appeals the
trial court’s order of restitution to the property’s owner for her attorney’s
fees. We reverse and remand for a new restitution hearing because a
portion of the restitution award was not supported by competent,
substantial evidence.
At the jury trial, at which Love represented himself, the state presented
the following evidence. Love responded to the owner’s real estate listing
and offered to purchase her property for $340,000.00 in cash. The owner
accepted Love’s offer, and they agreed to close on the property at Love’s
attorney’s office. At the closing, the owner signed the necessary closing
documents, including the buyer/seller agreement and warranty deed.
Based on the terms of the agreement, the owner expected to be fully paid
in cash for the property. However, once she signed these documents, Love
gave her a promissory note instead of cash. After realizing that Love would
not comply with the agreed upon terms of sale, the owner attempted to get
the signed warranty deed back from Love, but Love’s attorney physically
blocked her from doing so.
Love recorded the warranty deed later the same day, and the property
was placed in Love’s name. However, the deed was later determined to be
defective due to a scrivener’s error. This invalidated the transfer and
created a cloud on the title that could only be cured by court order. As a
result of the cloud on the title, the owner could not re-sell the property or
rent it to a new tenant. For the next three years, she incurred various
expenses related to the property, including property taxes and
homeowners’ association fees. As a result of these expenditures, the owner
sustained financial losses and had to hire an attorney to quiet the title.
The jury convicted Love on all charges. Love later accepted the trial
court’s offer of counsel for the sentencing and restitution hearing. At that
hearing, the State sought a sentence of twenty years in prison as a
habitual felony offender, followed by ten years of probation, and requested
restitution for the owner to cover lost rent, property taxes, homeowners’
association fees, and attorney’s fees. Love requested a downward
departure under section 921.0026(e), Florida Statutes (2020), and
although he argued the need for restitution outweighed the need for
prison, he specifically objected to paying restitution for the owner’s
attorney’s fees.
During the owner’s testimony on the matter of fees, she claimed that
she had paid her attorney $300.00 per hour. However, the State did not
enter a copy of the retainer agreement into evidence, and the owner could
not remember how many hours the attorney had expended while working
to quiet the title to the property. The State claimed that the owner’s
attorney had testified at trial that the owner had paid him $7,905.89.
However, other than his statement at trial that the owner had
compensated him for his work, the record shows the attorney never
suggested any specific figure or rate of payment in his trial testimony.
Regardless, Love neither objected to, nor contested, the State’s claim that
the attorney had been paid $7,905.89.
The trial court denied the motion for a downward departure, then
sentenced Love to approximately eight years in prison to be followed by ten
years of probation. Although the trial judge declined to order restitution
for three years of property taxes and homeowners’ association fees paid by
the owner, he ordered restitution for lost rent in the amount of $72,360.00
and for attorney’s fees in the amount of $7,905.89, for a total of
$80,265.89. This appeal followed.
2
“The trial court’s determination of the amount of restitution is subject
to an abuse of discretion standard of review.” Soriano v. State,
968 So. 2d
112, 114 (Fla. 4th DCA 2007). The trial court abuses its discretion when
its actions are “arbitrary, fanciful, or unreasonable, which is another way
of saying that discretion is abused only where no reasonable man would
take the view adopted by the trial court.” Canakaris v. Canakaris,
382 So.
2d 1197, 1203 (Fla. 1980).
Under Florida’s restitution statute, the trial court must order
restitution for “damage or loss caused directly or indirectly by the
defendant’s offense; and damage or loss related to the defendant’s criminal
episode,” unless the trial court finds a compelling reason not to do so. §
775.089(1)(a), Fla. Stat. (2020). In Livingston v. State,
311 So. 3d 331, 333
(Fla. 2d DCA 2021), the Second District found that attorney’s fees awarded
in restitution do not have to be reasonable; they “are properly awardable
. . . so long as they are causally connected to the crime.”
“Restitution must be proved by substantial, competent evidence and
this evidence must be greater than mere speculation.” Hunter v. State,
48
So. 3d 174, 175 (Fla. 4th DCA 2010). The State bears the burden of
proving, by the preponderance of the evidence, the loss sustained by the
victim resulting from the offense. See § 775.089(7)(c), Fla. Stat. (2020).
Love argues the State provided insufficient evidence to support
restitution for the owner’s attorney’s fees. As Love’s counsel explained at
the hearing:
If this was a civil matter and the attorney was requesting for
attorney’s fees in the case where he was the party that had
won the action, that attorney would also have to file an
affidavit identifying the time and effort spent on the case . . . .
[N]ot having that information, your Honor, is the only reason
why we would make the objection to the entire amount of
attorney fees. . . . [B]ecause there is no affidavit, there is no
hourly fee determined here. There is no actual billable hour
sheet showing what work the attorney did on the case and
when he did it on the case. It just leaves us with a bitter
hesitation as to the amount.
“Hearsay evidence may be used to determine the amount of restitution
if there is no objection to the evidence.” Williams v. State,
850 So. 2d 627,
628 (Fla. 2d DCA 2003); see Toole v. State,
270 So. 3d 371, 373–74 (Fla.
4th DCA 2019) (quoting Phillips v. State,
141 So. 3d 702, 705 (Fla. 4th
DCA 2014)) (“[H]earsay evidence may not be used to determine the amount
3
of restitution when there is a proper objection by the defense to the
hearsay evidence.”). 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).
Although a trial court may order restitution for attorney’s fees under
the restitution statute, the award must still be supported by substantial,
competent evidence. See Livingston, 311 So. 3d at 333; Hunter,
48 So. 3d
at 175. While the owner testified that she paid the attorney $300.00 per
hour, the State failed to introduce any evidence relating to how many
hours the attorney expended on matters for which restitution was proper.
The owner’s testimony, without further documentation or other evidence,
was not enough to prove by a preponderance of the evidence that the
requested amount of $7,905.89 for attorney’s fees was an accurate for
restitution purposes. See Hunter,
48 So. 3d at 175; Boone v. State,
112
So. 3d 676, 677 (Fla. 4th DCA 2013) (reversing restitution order in part
because the amount of medical costs was supported only by the victim’s
testimony and was not corroborated with billing records); § 775.089(7)(c),
Fla. Stat. (2020). Despite the State’s claims that the owner’s attorney
testified at trial he was paid $7,905.89 for his work, this testimony does
not appear in the trial or restitution hearing transcripts nor in the record
from any other hearing. The State’s statement is not evidence, and, even
though Love did not object to the statement, the trial court erred in relying
on it, without more, in awarding that amount for restitution. See Olson,
260 So. 3d at 369. Therefore, we reverse and remand for a new restitution
hearing on the issue of the owner’s request for reimbursement of her
attorney’s fees. See Toole, 270 So. 3d at 375 (remanding for a new
restitution hearing when the amount of the restitution award was not
supported by substantial, competent evidence).
Reversed and remanded for a new restitution hearing.
DAMOORGIAN and CIKLIN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
4
