RESTITUTION HEARING BRIEF

TABLE OF CONTENTS

1. Caption
2. Brief Header
3. Statement of the Case
4. Statutory Framework
5. Victim Information
6. Disputed Restitution Amount
7. Defense Arguments
8. Proposed Alternative Amount
9. Ability-to-Pay Analysis
10. Payment Plan Proposal
11. Legal Authority
12. Conclusion
13. Certificate of Service

Caption

IN THE CIRCUIT COURT OF THE [________________________________] JUDICIAL CIRCUIT

IN AND FOR [________________________________] COUNTY, FLORIDA

Brief Header

DEFENDANT'S BRIEF IN SUPPORT OF CONTESTED RESTITUTION AMOUNT

Defense Counsel: [________________________________]
Florida Bar No.: [________________________________]
Firm: [________________________________]
Address: [________________________________]
Telephone: [________________________________]
Email: [________________________________]

Statement of the Case

On or about [__/__/____], the Defendant, [________________________________], was charged with [________________________________] in violation of Florida Statute Section [________________________________].

On [__/__/____], the Defendant was [convicted by plea / convicted at trial] of the following offense(s):

On [__/__/____], the Court sentenced the Defendant to [________________________________].

Statutory Framework

Florida Statute Section 775.089 governs victim restitution in criminal cases.

• Mandatory Restitution: Under 775.089(1)(a), in addition to any punishment, the court shall order the defendant to make restitution to the victim for damage or loss caused directly or indirectly by the defendant's offense, and for damage or loss related to the defendant's criminal episode, unless the court finds clear and compelling reasons not to order such restitution.

• Standard of Proof: Under 775.089(7), any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence. The court may consider hearsay evidence for this purpose provided it finds minimal indicia of reliability.

• Burden of Proof: The burden of demonstrating the amount of loss is on the state attorney (775.089(7)(a)). The burden of demonstrating financial resources and the absence of future resources is on the defendant (775.089(7)(b)).

• Determination: The restitution order must be based on actual damages rather than an estimated or inflated amount.

Victim Information

Disputed Restitution Amount

Defense Arguments

A. Causation

[________________________________]

B. Amount Calculation Errors

[________________________________]

C. Inability to Pay

[________________________________]

D. Speculative Damages

[________________________________]

E. Insurance Coverage Offset

☐ Victim received insurance proceeds of $[________________________________]
☐ Insurance claim pending for $[________________________________]
☐ No insurance coverage applicable

[________________________________]

F. Collateral Source

[________________________________]

Proposed Alternative Amount

Based on the foregoing arguments, the Defense respectfully proposes a total restitution amount of $[________________________________], calculated as follows:

Ability-to-Pay Analysis

Income

Assets

Monthly Obligations

Net Monthly Disposable Income: $[________________________________]

Payment Plan Proposal

The Defendant respectfully proposes the following payment plan:

• Total Restitution Amount: $[________________________________]
• Initial Lump Sum Payment: $[________________________________] (if applicable)
• Monthly Payment Amount: $[________________________________]
• Payment Start Date: [__/__/____]
• Estimated Completion Date: [__/__/____]

Legal Authority

1. Glaubius v. State, 688 So.2d 913 (Fla. 1997) -- Restitution must be for losses caused directly or indirectly by the defendant's criminal offense; speculative losses are not recoverable.

2. State v. Hawthorne, 573 So.2d 330 (Fla. 1991) -- The court must consider the defendant's ability to pay in setting the restitution amount and payment terms.

3. Schuette v. State, 822 So.2d 1275 (Fla. 2002) -- Restitution must be based on actual, documented losses; the state bears the burden of proof by a preponderance of the evidence.

4. Kirton v. State, 89 So.3d 285 (Fla. 3d DCA 2012) -- The trial court abuses its discretion when it orders restitution in an amount unsupported by competent, substantial evidence.

5. Fla. Stat. 775.089 -- Establishes mandatory victim restitution, hearing procedures, burden of proof allocation, and enforcement mechanisms.

Conclusion

For the foregoing reasons, the Defense respectfully requests that this Court:

☐ Reduce the restitution amount from $[________________________________] to $[________________________________];
☐ Exclude speculative and unsupported damages from the restitution order;
☐ Credit insurance proceeds and collateral source payments against the restitution amount;
☐ Approve the proposed payment plan as set forth herein;
☐ Grant such other and further relief as the Court deems just and proper.

Dated: [__/__/____]

Respectfully submitted,

________________________________________
[________________________________]
Attorney for Defendant
Florida Bar No. [________________________________]

Certificate of Service

I, [________________________________], hereby certify that on [__/__/____], I served a true and correct copy of the foregoing DEFENDANT'S BRIEF IN SUPPORT OF CONTESTED RESTITUTION AMOUNT on the following parties by the method indicated:

☐ Personal delivery
☐ U.S. Mail, first class, postage prepaid
☐ Electronic service via Florida Courts E-Filing Portal

State Attorney's Office:
[________________________________]
[________________________________]
[________________________________]

Victim(s) / Victim's Attorney (if applicable):
[________________________________]
[________________________________]
[________________________________]

Dated: [__/__/____]

________________________________________
[________________________________]

Florida-Specific Notes

• Mandatory vs. Discretionary: Restitution is mandatory under 775.089(1)(a) unless the court finds clear and compelling reasons not to order it and states those reasons on the record.
• Standard of Proof: Preponderance of the evidence (775.089(7)). Hearsay evidence may be considered if it has minimal indicia of reliability.
• Appellate Review: Reviewed for abuse of discretion. The appellate court examines whether the restitution amount is supported by competent, substantial evidence.
• Enforcement: Under 775.0891, restitution may be enforced through income deduction orders. The clerk of court may garnish the defendant's income. Restitution orders are enforceable as civil judgments.
• "Clear and Compelling" Standard: To decline restitution, the court must find clear and compelling reasons, which is a high standard. Inability to pay alone is generally insufficient.
• Lien: A restitution order creates a lien in favor of the state on behalf of the victim against all property of the defendant (775.089(1)(b)).