SIXTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
Case No. 6D2025-1329
Lower Tribunal No. 2024-MM-405081-A-O
ROGELIO JOSE DACOSTA,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
Appeal from the County Court for Orange County.
Amanda S. Bova, Judge.
October 16, 2026
BROWNLEE, J.
Appellant Rogelio Jose Dacosta pled no contest to one count of unlawful
contracting arising from his failure to complete work under a home renovation
contract, in violation of section 489.127(1)(f), Florida Statutes (2024). He now
appeals the order of restitution, arguing that the $11,911 amount was determined
based on inadmissible hearsay, and that the amount wrongly included sums unrelated
to the offense. We affirm on both issues.
First, as to the court’s reliance on the victim’s check stubs to show the
amounts paid to other contractors to complete and repair Appellant’s deficient work,
Appellant argues the stubs were inadmissible hearsay. He relies on Walker v. State,
83 So. 3d 840, 841 (Fla. 4th DCA 2011), in which the Fourth District explained that
a check stub—a “note reflecting that a check was issued”—is properly excluded as
hearsay unless qualified under an exception to the hearsay rule. But the hearsay
discussion in Walker concerned trial proceedings, not a restitution hearing. See id.
at 841.
Nevertheless, the State concedes Appellant’s argument is well-taken and that
the use of hearsay to determine the amount of restitution was error. In doing so, the
State relies on Bianchini v. State, 77 So. 3d 247, 248 (Fla. 4th DCA 2012), which
held that “[h]earsay evidence may not be used to determine the amount of restitution
when there is a proper objection by the defense to such evidence.” (citations
omitted). The State, however, overlooks that Bianchini was decided under an outof-date version of section 775.089(7)(c), Florida Statutes. In 2021, the Legislature
amended section 775.089(7) to expressly allow trial courts to consider hearsay
evidence at restitution hearings, provided the court “finds that the hearsay evidence
has a minimal indicia of reliability.” Ch. 21-172, § 1, Laws of Fla. (eff. July 1, 2021).
Our review of the record in this case reveals that the trial court expressly found
the check stubs had the requisite indicia of reliability when it overruled Appellant’s
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hearsay objection below. And Appellant has not challenged that finding on appeal.
Consequently, he has waived the point. See Rogers v. State, 51 Fla. L. Weekly
D1313, D1313 (Fla. 6th DCA June 29, 2026) (“Issues not raised in the initial brief
are waived or abandoned.” (citations omitted)). We, therefore, find no error in the
court’s reliance on the check stubs to determine the amount of restitution and reject
the State’s concession of error. See Brannon v. State, 396 So. 3d 420, 422 n.1 (Fla.
6th DCA 2024) (noting the appellate court is not bound by a party’s concession of
error).
Second, as to Appellant’s argument that the $11,911 restitution award
includes sums from check stubs unrelated to the offense, Appellant fails to provide
the Court with sufficient information to meet his burden on appeal. He identifies five
check stubs to support his point, but it is not clear from the record whether those
particular check stubs were even included in the total amount awarded. See Lynn v.
City of Fort Lauderdale, 81 So. 2d 511, 513 (Fla. 1955) (“[T]he duty rests upon the
appealing party to make error clearly appear.”). We therefore affirm on that issue as
well, without further comment.
AFFIRMED.
WOZNIAK and MIZE, JJ., concur.
Blair Allen, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
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James Uthmeier, Attorney General, Tallahassee, and Deborah Chance, Assistant Attorney General, Daytona Beach, for Appellee.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING
AND DISPOSITION THEREOF IF TIMELY FILED
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