DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

LINDA WEINREBER BARKER,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D21-2575

[November 23, 2022]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. 

Lucie County; William L. Roby, Judge; L.T. Case No. 562019CF000896A.

Carey Haughwout, Public Defender, and Cynthia L. Anderson, 

Assistant Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Jessenia J. 

Concepcion, Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

The defendant appeals a restitution order entered after she pleaded no 

contest to fraudulent use of a credit card and exploitation of an elderly 

person. She argues the trial court erred in: (1) determining restitution

because the evidence did not support the amount awarded; and (2)

assessing a surcharge when no fines were assessed. We agree with her 

on issue two. We therefore affirm in part and reverse in part.

The victim asked her neighbor (the defendant) to help with bills while 

she was traveling. The victim gave the defendant permission to use certain 

checks and credit cards. When she returned, the victim noticed irregular 

activity on two of her accounts. The victim reported the activity to the 

police. 

The State charged, and the defendant pleaded no contest to, fraudulent 

use of a credit card and exploitation of an elderly adult. The court 

sentenced the defendant to twenty-four months’ probation and ordered 

her to pay restitution. 
2

At the restitution hearing, the State argued the defendant should pay 

for two checks: one made out to the IRS for $2,000; and another made out 

to “P.D. Green” for $1,005.71. The victim testified the defendant drafted 

the checks without her knowledge and consent. Neither check bore the 

victim’s handwriting or signature. 

The defendant responded she drafted the checks with the victim’s 

permission for the victim’s benefit. The court ordered restitution for 

$3,005.71 but did not assess any fines.

The defendant now argues the State failed to prove the checks paid for 

items benefiting the defendant. She also argues the evidence supported 

only a speculation that the defendant had wrongfully spent the money. 

The State responds it proved the defendant wrote the two unauthorized 

checks and the victim did not benefit from those payments. 

We review restitution orders for an abuse of discretion. Davis v. State,

244 So. 3d 374, 377 (Fla. 4th DCA 2018) (citing Soriano v. State, 968 So.

2d 112, 114 (Fla. 4th DCA 2007)).

A restitution order must be supported by competent substantial 

evidence. Davis, 244 So. 3d at 377. Competent substantial evidence must 

be more than mere speculation. Soriano v. State, 968 So. 2d 112, 114 (Fla. 

4th DCA 2007) (quoting Glaubius v. State, 688 So. 2d 913, 916 (Fla. 1997)).

The State bears the burden of proving the amount of loss by a 

preponderance of the evidence. § 775.089(7)(c), Fla. Stat. (2021).

The defendant relies on Henry v. State, 840 So. 2d 1170, 1171 (Fla. 4th 

DCA 2003). There, the defendant pled guilty to one of the same charges, 

exploitation of an elderly person. But the State relied only on 

“documentary evidence consisting of financial data, including credit card 

records, a spreadsheet summarizing financial transactions, and other 

documents.” Id. The State did not call any witnesses. The trial court 

granted the State’s requested restitution amount. Id. 

We reversed because the documentary evidence did not establish the 

impropriety of each expenditure. We remanded the case for “the trial court 

to make sufficient findings or for the State to provide evidence 

substantiating the amount it seeks.” Id.

Here, unlike Henry, competent substantial evidence supports the 

restitution award. The victim testified the defendant drafted the checks 

without her consent and the payments were of no benefit to her. The State 
3

introduced copies of checks showing the defendant’s handwriting and 

signature. We therefore affirm the restitution order.

Next, the defendant argues the trial court erred in applying a five 

percent surcharge, pursuant to section 938.04, Florida Statutes (2021), 

when the trial court did not impose a fine. The State responds the 

defendant failed to preserve the issue.

We have de novo review. Brewster v. State, 25 So. 3d 99, 101 (Fla. 4th 

DCA 2018).

An improper costs assessment claim may be preserved in a Rule 

3.800(b) motion. Bartolone v. State, 327 So. 3d 331, 335 (Fla. 4th DCA 

2021) (citing Anderson v. State, 229 So. 3d 383, 386 (Fla. 4th DCA 2017)). 

Here, the defendant raised the surcharge assessment in a Rule 3.800(b)(2) 

motion. By doing so, she preserved the issue.

Section 938.04, Florida Statutes (2021), provides for the imposition of 

a five percent surcharge when a fine or cost is imposed under section 

318.14(10), Florida Statutes (2021).1 A trial court must pronounce each 

fine, cost, and discretionary fee during a sentencing hearing to comply 

with due process. Jackson v. State, 296 So. 3d 549, 553 (Fla. 1st DCA 

2020) (citing Osterhoudt v. State, 214 So. 3d 550, 551 (Fla. 2017)). 

Here, the trial court orally pronounced costs and fees but did not 

impose a fine. Indeed, there are no mandatory fines for the third-degree 

felonies charged in this case. See § 775.083, Fla. Stat. (2021). Yet, the 

probation order included a mandatory five percent surcharge. The 

surcharge was incorrectly assessed.

We therefore reverse the surcharge and remand the case to the trial 

court to strike it from the probation order.

Affirmed in part; Reversed in part.

GERBER and ARTAU, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

1 Section 318.14, Florida Statutes (2021), relates to noncriminal traffic 

infractions, and does not apply to the defendant’s charges.