BENNETT v. STATE (2023)

Stephen Howard Bennett challenges the trial court's order directing him to pay $2,051.62 in restitution after he pleaded no contest to driving under the influence with property damage. We have jurisdiction. See art. V, § 4(b)(1), Fla. Const. We affirm the order and write to explain why we disagree with the State's concession of error.

During the restitution hearing, the vehicle owner testified that a body shop approved by his automobile insurance company provided a written estimate of $2,051.62 to repair the damage caused by Bennett. Bennett did not object to this testimony. The written estimate itself was admitted into evidence over Bennett's hearsay objection. The trial court found that Bennett owed $2,051.62 in restitution to the vehicle owner.

“Hearsay evidence may not be used to determine the amount of restitution when there is a proper objection by the defense to the hearsay evidence.” T.J.N. v. State, 977 So. 2d 770, 773 (Fla. 2d DCA 2008) (emphasis added) (citing Thomas v. State, 581 So. 2d 992, 993 (Fla. 2d DCA 1991)). Testimony regarding an estimated repair cost is hearsay unless the declarant responsible for the estimate testifies. Id. A written estimate may be admissible under the business record exception to the hearsay rule if a witness can lay the proper foundation establishing that “production of estimates is a regularly conducted business activity.” Allen v. State, 162 So. 3d 1055, 1057 (Fla. 2d DCA 2015) (quoting Butler v. State, 970 So. 2d 919, 920-21 (Fla. 1st DCA 2007)).

Bennett correctly argues that the trial court erred by admitting the written estimate over his hearsay objection. Neither the declarant responsible for the written estimate nor an employee with knowledge of the body shop's regularly conducted business activities testified. The State concedes error on that basis. However, the written estimate itself was not the sole basis for the restitution award. The vehicle owner also testified that the body shop provided him the written estimate for $2,051.62. This testimony also constituted hearsay. See T.J.N., 977 So. 2d at 773-74 (concluding that testimony of an insurance adjuster regarding the estimated cost of repairs which was based on a body shop's estimate was hearsay). However, Bennett did not object to this testimony. Therefore, the trial court could rely on it to determine the amount of restitution.¹ See McClain v. State, 356 So. 2d 1256, 1257 (Fla. 2d DCA 1978) (“[E]ven hearsay evidence is admissible in the absence of objection.”).

Affirmed.

FOOTNOTES

1.   Bennett did not raise any other arguments in the initial brief. See Rosier v. State, 276 So. 3d 403, 406 (Fla. 1st DCA 2019) (“[I]ssues not raised in the initial brief are considered waived or abandoned.”). Therefore, we do not address whether this testimony was competent evidence supporting the amount of the restitution award. See Allen, 162 So. 3d at 1056 (“[T]he restitution award must be based upon competent evidence. The State has the burden of proving the amount of loss by a preponderance of the evidence.” (citations omitted)).

LABRIT, Judge.

CASANUEVA and MORRIS, JJ., Concur.