Opinion
Case No. 2D15-4203
01-08-2020
Demetrius LEWIS, Appellant, v. STATE of Florida, Appellee.
Howard L. Dimmig, II, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Helene S. Parnes, Senior Assistant Attorney General, Tampa, for Appellee.
Howard L. Dimmig, II, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Helene S. Parnes, Senior Assistant Attorney General, Tampa, for Appellee.
BLACK, Judge. Demetrius Lewis challenges his convictions and sentences for grand theft and money laundering. Lewis was convicted following a jury trial and sentenced to twenty years in prison on each count to be served concurrently. He was also ordered to pay $240,938 in restitution to Chicago Title Insurance Company. Lewis raises two issues on appeal: that the trial court erred in denying his motion for a continuance to procure a witness and that the trial court erred in awarding restitution in the absence of competent substantial evidence to support the amount of the award. We affirm the convictions and twenty-year sentences without comment but reverse the restitution award and remand for further proceedings.
Dorothea Giordano's home was facing foreclosure, and she was put in contact with Lewis, who claimed to be an expert in short sales. Lewis became Ms. Giordano's broker and led her to believe that he was communicating with her mortgagee, Allied Mortgage Investment Fund II, LLC, regarding a short sale of her home. Instead, Lewis orchestrated a series of fraudulent acts in order to secure a reverse mortgage from Plaza Home Mortgage, Inc., in the amount of approximately $194,000, allegedly to be used to purchase Ms. Giordano's home. The closing took place at Online Title Services. And at the time of the closing, Online Title Services was underwritten by Chicago Title. Ms. Giordano signed two U.S. Department of Housing and Urban Development (HUD) settlement statements at the closing, one for the short sale and one for the reverse mortgage. The short sale HUD statement indicated a payoff of $143,500 for the first mortgage to M Caster Home Finance, Lewis's fictitious company, and the reverse mortgage HUD statement indicated a payoff for the first mortgage to M Caster Home Finance in the amount of $239,500.
Ms. Giordano later began receiving foreclosure notices from Allied Mortgage, and she ultimately lost her home. Ms. Giordano later learned that the payoff funds had not been sent to Allied Mortgage but to Lewis's codefendant, Eric Green, through Green's "charity," Everyone's Youth United. Thereafter, a check from Everyone's Youth United was deposited into Lewis's personal account. Online Title's single ledger balance report as well as its bank statement indicated that it received $194,641.65 from Plaza Home Mortgage. The single ledger balance report and bank statement also showed a transfer of funds in the amount of $143,500 to Everyone's Youth United. Various other disbursements—totaling approximately $50,000—were made by Online Title pertaining to the transactions. Detective Kavanagh, the lead investigator on the case, testified that Online Title's single ledger balance indicated that $143,500 was disbursed to Green, representing "the loss in this deal." In response to Lewis's motion for judgment of acquittal, the State argued that "the amount of the theft as a whole is at least $143,500" but "could possibly be as high as $196,000." And during closing argument the State asserted that the evidence established that "Plaza [Home Mortgage] was victimized for [$]196,000 or [$]143,000."
At the sentencing hearing the State argued as follows with regard to restitution:
The restitution that we will be seeking is $240,938 and that will be to Chicago Title Insurance Company. That reflects not just the money that was taken in this case, but the damages that Chicago Title Insurance Company suffered as a result of having to pay out the insurance claim.
When the property in question in this case was insured, they had to insure the full value of the property, not just the amount being lent. And since the original lender, Allied [Mortgage], repossessed the property, Plaza Home Mortgage, in turn, their insurance company, Chicago Title, was out the value of the property, not just the amount that was taken.
Lewis objected to the State's request, arguing that because Chicago Title obtained the home and resold it, it suffered no loss; he also requested a restitution hearing. The State then asserted that "[t]he testimony at the trial is that Allied Mortgage repossessed the house. Plaza [Home Mortgage] didn't get it, therefore, there is no way for Chicago Title to sell it. Chicago Title reimbursed Plaza [Home Mortgage]." The State also argued that testimony presented during trial supported the amount of restitution requested. Lewis again objected, arguing that he had not "seen any paperwork pertaining to that." In response the court stated, "Well, I am going to impose $240,938 as restitution, based on the evidence presented during trial as to Chicago Title's loss." This was error as no such evidence was presented during trial.
An appellate court reviews orders of restitution for abuse of discretion. Koile v. State, 902 So. 2d 822, 824 (Fla. 5th DCA 2005). Unless "clear and compelling reasons" dictate otherwise, the trial court is required to order restitution to crime victims for "[d]amage or loss caused directly or indirectly by the defendant's offense." § 775.089(1)(a)(1), Fla. Stat. (2004). "The burden of proving the amount of restitution is on the State, and the amount must be proved by a preponderance of the evidence. Restitution must be proved by substantial competent evidence." Koile, 902 So. 2d at 824 (citations omitted); see also § 775.089(7). However, the restitution amount may not exceed the damage the criminal conduct caused the victim. Morel v. State, 547 So. 2d 341, 342 (Fla. 2d DCA 1989) (citing Fresneda v. State, 347 So. 2d 1021 (Fla. 1977) ).
Gilileo v. State, 923 So. 2d 612, 613-14 (Fla. 2d DCA 2006) (alteration in original); accord Danzey v. State, 186 So. 3d 1064, 1065 (Fla. 2d DCA 2016) ("Although a trial court has discretion in determining the amount of restitution, the restitution award must be proven by competent, substantial evidence and the amount of the award must be established by the greater weight of the evidence." (citing S.M. v. State, 159 So. 3d 966, 968 (Fla. 2d DCA 2015) )).
The evidence established that Plaza Home Mortgage wired Online Title $194,641.65 and that Online Title in turn wired $143,500 of that money to Everyone's Youth United, purportedly to pay off Ms. Giordano's mortgage. The evidence also showed that various other disbursements were made by Online Title pertaining to the transactions, totaling approximately $50,000. Additionally, Detective Kavanagh testified to a $143,500 "loss in this deal." And although the testimony presented during trial established that at the time of the transactions at issue Online Title was underwritten by Chicago Title, there was no evidence presented demonstrating that Chicago Title covered the loss. Thus, there was no evidence presented to prove that Chicago Title suffered damages in the amount of $240,938 as argued by the State. Cf. Strickland v. State, 746 So. 2d 1189, 1190 (Fla. 2d DCA 1999) ("At the sentencing hearing, Strickland requested a hearing on the $10,000 restitution amount. The assistant state attorney referred to a document reflecting the amount of money that the [Crimes Compensation Trust] Fund had paid. That document, however, is not in our record. In fact, nothing in the record, except the prosecutor's assertion at the hearing, reflects a payment by the Fund. Therefore, we reverse the restitution order and remand for a restitution hearing on the $10,000 award."); Winborn v. State, 625 So. 2d 977, 977 (Fla. 2d DCA 1993) ("At Winborn's restitution hearing [following his conviction for grand theft], the prosecutor merely stated the amount the victims had told him they claimed. The victims themselves did not testify nor did they submit receipts, inventories, or the like, to establish the amount of their loss. The [S]tate must prove the amount owed with competent evidence. The prosecutor's representation of the victims' assertions did not meet this standard." (citation omitted)).
In its brief the State relies on various citations to the record in support of its assertion that the restitution imposed was supported by the evidence presented at trial. But not one of those citations demonstrates that Chicago Title paid a claim in the amount of $240,938. And our independent review of the record revealed no such testimony or evidence. The prosecutor's assertions regarding the amount of restitution were not competent substantial evidence. See D.C. v. State, 109 So. 3d 1264, 1266 (Fla. 2d DCA 2013) (citing Molter v. State, 892 So. 2d 1115, 1117 (Fla. 2d DCA 2004) ).
Additionally, "[d]ue process requires a formal hearing on the amount of restitution." Barone v. State, 222 So. 3d 1235, 1236 (Fla. 5th DCA 2017) (citing L.S. v. State, 975 So. 2d 554, 555 (Fla. 4th DCA 2008) ). Lewis objected to the amount of restitution and requested hearing on the matter, but no such hearing was held. Had Lewis raised this issue on appeal, it would have served as an independent basis to reverse. See Molter, 892 So. 2d at 1117 ("Once Molter objected to the amount of restitution, the trial court was required to hear evidence on the matter." (first citing § 775.089(7), Fla. Stat. (2002) ; and then citing Smith v. State, 801 So. 2d 1043, 1045 (Fla. 5th DCA 2001) )); Strickland, 746 So. 2d at 1190 ("[S]ection 775.089(7) contemplates an evidentiary hearing when there is a dispute as to restitution."); see also Gardipee v. State, 620 So. 2d 255, 255-56 (Fla. 2d DCA 1993).
We affirm Lewis's convictions and twenty-year sentences. However, because the restitution amount imposed is not supported by competent substantial evidence, we reverse the order of restitution as well as the written sentence to the extent that it imposes restitution in the amount of $240,938 and remand for a restitution hearing.
Affirmed in part; reversed in part; remanded for further proceedings.
KHOUZAM, C.J., and NORTHCUTT, J., Concur.