JOHNNY R. WILLIAMS , Appellant,

v. STATE OF FLORIDA , Appellee

. IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
CASE NO. 1D 15

- 5124

_____ ________________________/ Opinion filed April 11, 2017. An appeal from the Circuit Court for Liberty County

. Barbara K. Hobbs , Judge

. Office of Candice K. Brower, Criminal Conflict & Civil Regional Counsel, and Melissa J. Ford, Assistant Regional Confli ct Counsel, Tallahassee , for Appellant. Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee , for Appellee.

WOLF, J. Appellant pled no contest to grand theft of $300 or more, criminal mischief,
and inter fering with railroad equipment; the factual basis for these crimes was that appellant and a co

- defendant dug up railroad culverts with the intention of selling the culverts as scrap metal. After a separate restitution hearing, appellant and his

co - defendan t were ordered to pay $5,050 in restitution.2 Appellant challenges the restitution amount for two reasons. He first alleges the trial court abused its discretion by ordering $5,050 in restitution where the only evidence of that amount of restitution came from the hearsay testimony of a railroad employee, Carlton Strickland. He also claims the $5,050 restitution amount was improperly based on the culverts’ replacement value instead of their fair market value. We hold that the latter issue raise d by appellan t lacks merit, but because the restitution amount was improperly based solely on hearsay evidence, we reverse the restitution determination and remand for a new restitution hearing. “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). Here, the trial court abused its discretion in ordering appellant and his co

- defendant to pay $5,050 in restitution when the only evidence regarding the restitution amount was the objected

- to hearsay testimony of Mr. Strickland.

“ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. ” § 9 0.801 (1)(c) , Fla. Stat. (2013). Hearsay is generally inadmissible unless the evidence falls into an exception to the hearsay rule a s outlined per statute. § 90.802, Fla. Stat. (2013). Hearsay evidence may not be used to determine a restitution amount if th ere is an objection to the hearsay. Williams v. State , 850 So. 2d 627, 628 (Fla. 2d DCA 2003).3 Here, Mr. Strickland testified , over appellant’ s objection, to a restitution amount of $6,570, which would cover the cost of labor as well as replacement of
the culverts and ballast. * However, Mr. Strickland’s testimony was hearsay; Mr. Strickland explicitly testified that he was not the person who calculated the $6,570 estimate because such a determination was outside of his jurisdiction: “Now, what it would act ually cost, I don’t know, because that’s out of my jurisdiction.” Mr. Strickland also explicitly stated, “I have nothing to do with making the estimates.” Rather, a road master for the railroad company had made the estimate and had e

- mailed the estimate to Mr. Strickland. However, the State never entered that

e - mail or any other docu ment pertaining to the estimate into evidence. The State alleges Mr. Strickland’s testimony was not hearsay because it fell under the business record s exception outlined in section 90.803(6 )(a), Florida Statutes (2013 ). However, the business records exception is not applicable to testimony without the business records

. T.J.N. v. State , 977 So. 2d 770, 773 (Fla. 2d DCA 2008); Thompson v. State , 705 So. 2d 1046, 104 8 (Fla. 4th DCA 1998). Here, without either the road master’s physical estimate or his e

- mail to Mr.

* Mr. Strickland testified as to estimated costs of $1,270 for new pi pes, $1,300 for new ballast, and $4,000 for labor. Because there had not been ballast over the culverts when appellant and his co

- defendant dug them up, the trial court determined restitution should only include $1,270 for the pipes and $4,000 for the labo r, minus $220 that the railroad obtained when it exchanged the old, dug

- up pipes for cash. Thus, the trial court ordered a restitution amount of $5,050.4 Strickland, Mr. Strickland’s restitution testimony was hearsay, which was appropriately objected to by defense counsel. Thus, though we affirm appellant’s judgment a nd sentence, we REVERSE the restitution determination and REMAND for a new restitution hearing. See Nelson v. State , 95 So. 3d 368 (Fla. 1st DCA 2012). LEWIS and WETHERELL, JJ., CONCUR.