County Criminal Court:  CRIMINAL LAW – restitution – trial judge did not err in imposing $20,775.00 in restitution on first-degree battery conviction – said amount of restitution was paid out by Crimes Compensation Trust Fund for injuries causally connected to battery – no error in trial court’s presumption that amount paid by Crimes Compensation Trust Fund is a debt due and owing the State unless sufficiently rebutted by defendant – testimony and evidence established sufficient nexus between amount of loss sustained by victim and appellant’s actions – amount of restitution did not violate plea agreement.  Order of restitution affirmed.  Montgomery v. State, No. 01-02675CFANO (Fla. 6th Cir. App. Ct. April 28, 2003).









vs.                                                                               APPEAL NO:  CRC01-02675CFANO







Opinion filed April _____, 2003.


Appeal from a decision of the

County Court for Pinellas County;

Patrick K. Caddell, Judge.


Edward A. Doskey, Esquire

Attorney for Appellant.


Donald J. Kilfin, Esquire

Assistant State Attorney.




Montgomery appeals the trial court’s order of restitution, which imposed $20,775.00 in restitution payable to the Crimes Compensation Trust Fund, Bureau of Victim Compensation (“Fund”), pursuant to section 960.17, Florida Statutes.  Montgomery raises two issues on appeal.  He contends that the record is devoid of competent, substantial evidence to support the restitution award.  Further, he argues that the amount of restitution ordered in this case violates the plea agreement.  We disagree, and affirm.

On April 25, 2000, Montgomery was charged with first-degree battery.  On September 11, 2000, the State Attorney received a letter from the Attorney General indicating that a $19,673.00 award had been paid to the victim out of the Fund, pursuant to section 960.21, Florida Statutes.  On October 6, 2000, Montgomery pleaded no contest to the charge, after which he was sentenced to 12 months probation.  The order of probation and the terms of the plea agreement indicated that restitution would be imposed, with the exact amount to be determined at a later hearing.  Argument on the restitution issue commenced October 6, 2000, but the matter was continued to December 15, 2000 and January 3, 2001 to permit defense counsel to obtain further discovery.  On January 18, 2001, the trial judge entered a written order imposing $20,775.00 in restitution.

The first issue is whether there is competent, substantial evidence to support the amount of restitution ordered in this case.  Before the lower court, the State argued that the amount of money paid by the Fund – after a victim submits claims and the Fund investigates those claims – automatically becomes a restitution obligation to be imposed on the defendant.  Conversely, defense counsel argued that a causal nexus must still exist between the victim’s medical expenses and the defendant’s conduct.  The trial judge summarized his position on the issue, stating “my interpretation of the law here is that there’s a presumption in favor of the State for the amount paid out by the compensation fund and that is required to be viewed by the court as a debt due and owing to the State and is required to be imposed as a condition of probation and that really the burden, therefore, of attacking that shifts over to the defense to show that those payments are not in some way appropriate.” 

The mandatory language of section 960.17 provides that any payment of benefits to a victim under chapter 960 “shall create an obligation of restitution in accordance with s. 775.089.”  In addition, section 775.089(1)(a) provides “[a]n order requiring the defendant to make restitution to a victim does not remove or diminish the requirement that the court order payment to the Crimes Compensation Trust Fund pursuant to chapter 960.”  That section further provides that “payment of an award by the Crimes Compensation Trust Fund shall create an order of restitution unless specifically waived in accordance with subsection (b)1.” 

In turn, section 775.089(7) states, “[a]ny dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence.”  Ordinarily, the State must prove the amount of loss sustained by a victim as a result of a crime and that the defendant caused that loss.  Strickland v. State, 685 So. 2d 1365, 1366 (Fla. 2d DCA 1996).  Section 775.089(1)(a) provides that the trial judge shall order restitution for damage or loss caused directly or indirectly by the defendant’s offense and damage of loss related to the defendant’s criminal episode. 

Based on our review of the controlling law, we find no error in the trial judge’s conclusion that a presumption exists in favor of the amount paid out by the Fund, and that the trial court must impose this amount as a debt due and owing unless the defendant successfully challenges that amount under conventional restitution standards.  See McDonald v. State, 485 So. 2d 20 (Fla. 4th DCA 1986) (finding that the defendant must be given notice and an opportunity to object as to any restitution award imposed under section 960.17, Florida Statutes);  State v. Barber, 4 Fla. L. Weekly Supp. 483a (Fla. Hills. Cty Ct. 1996) (quoting section 960.17, and concluding “[a]ccordingly, this court is required to order such restitution.”).  We find that this is precisely what occurred below. 

At the December 15th hearing, the State introduced a certified and notarized copy of the payment information from the Fund, indicating that the Fund had paid out a total of $20,775.00 to the victim in this case.  It is certified by the program administrator, it is notarized, it bears the seal of the attorney general, and it includes language to the effect that such payment information is regularly compiled.  The State introduced this record into evidence, over a hearsay objection, as a self-authenticating public record.  We agree that this record qualifies under the public record exception.  See § 803.8, pgs. 779-786, Charles Ehrhardt, Florida Evidence (2002 ed.).  As to the self-authentication issue, defense counsel objected, arguing that the State failed to lay the proper foundation.  This issue, however, was not properly preserved for appeal.  A “lack of foundation” objection, without more, is insufficient to preserve this issue for appeal. [1]   Jackson v. State, 738 So. 2d 382 (Fla. 4th DCA 1999) (an objection for “lack of foundation” is not a specific ground of objection so as to preserve a ruling admitting evidence for appellate review).

The victim testified that as a result of the battery, he sustained approximately $30,000.00 in medical bills.  He testified that he was compensated by the Fund for a little over $20,000.00.  The State asserted that it was only seeking the amount paid out by the Fund (i.e., $20,775.00).  The victim explained that he sustained a broken nose as a result of the injury, and that he could not breathe out of his right nostril.  He explained that he suffers from vertigo, dizziness, sensitivity to light, and memory loss.  At the October 6th hearing, the victim testified that he had to undergo reconstructive surgery and a “septotomy.”

We find that the State met its burden in showing, by a preponderance of the evidence, a significant relationship between the amount of loss and the appellant’s actions.  We therefore find no error in the amount of restitution imposed by the trial judge.  We note that defense counsel had an opportunity to challenge the reasonableness of the charges or the necessity of the medical treatment, but failed to do so.  See e.g., A.J. v. State, 677 So. 2d 935, 938 (Fla. 4th DCA 1996) (“At the restitution hearing, appellant was free to contest the reasonableness of the charges or the necessity of the treatment for the injuries sustained by the victim.”).

The second argument on appeal is that the restitution award violates the plea agreement.  This argument is derived from the fact that the Judgment of Guilt and Order of Probation contains a paragraph that expressly limits any debt owed under section 960.17, Florida Statutes, to $10,000.00. [2]   Notwithstanding this paragraph, the plea form makes no mention of any cap on restitution.  Moreover, conspicuously absent from the plea colloquy is any mention of a cap on restitution.  Defense counsel, at the October 6th change of plea hearing, stated:

            Good afternoon, Judge.  I’m Chip Purcell.  I represent Clay Montgomery.  The terms of our agreement were for a year’s probation, 50 hours of community service, a cultural diversity class, an anger management class, standard court costs, and Your Honor is going to make a restitution hearing determination.


            Finally, no objection was lodged when sentence was imposed, during which the trial judge stated “restitution reserving the right to a hearing to determine the amount, which I suppose we will get into shortly here.”  Because the record on appeal demonstrates that the parties, at the time the plea was entered, did not contemplate a cap on restitution, we find no merit in this argument.


DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this _______ day of April, 2003.



                                                                                    JOHN A. SCHAEFER, Circuit Judge





                                                                                    W. DOUGLAS BAIRD, Circuit Judge




cc:        Edward A. Doskey, Esquire                             ____________________________________

            State Attorney’s Office                         NANCY MOATE LEY, Circuit Judge

[1]    On pages 8-9, 14, and 20 of the December 15th hearing, defense counsel objected to “lack of foundation.” 

[2]   The State makes a compelling argument that the language in the Judgment of Guilt and Order of Probation imposing a cap of $10,000.00 is actually a scrivener’s error.  The State argues that this provision should be citing to section 775.0835(1), which permits a trial judge to assess a fine no greater than $10,000.00 whenever a person pleads guilty to a felony or misdemeanor involving injury.  We make no determination here today on whether this argument holds any merit.