A Florida judge can consider hearsay at a restitution hearing as long as the court “finds that the hearsay evidence has a minimal indicia of reliability.” The Sixth District Court of Appeal applied that rule on October 16, 2026, in Dacosta v. State, No. 6D2025-1329, and refused to accept the State’s own concession that the judge had erred.
The case. Rogelio Jose Dacosta pled no contest in Orange County court to one count of unlawful contracting under section 489.127(1)(f), Florida Statutes (2024). The charge arose from his failure to complete work under a home renovation contract. The judge ordered $11,911 in restitution. Dacosta appealed the restitution order on two grounds: that the amount rested on inadmissible hearsay, and that it included sums unrelated to the offense.
The check stubs. To show what the homeowner paid other contractors to complete and repair the deficient work, the trial court relied on the homeowner’s check stubs. Dacosta argued they were hearsay. He cited Walker v. State, 83 So. 3d 840, 841 (Fla. 4th DCA 2011), which explained that a check stub, a “note reflecting that a check was issued,” is properly excluded as hearsay unless an exception applies. The Sixth District noted that the hearsay discussion in Walker “concerned trial proceedings, not a restitution hearing.”
The State agreed with Dacosta. It conceded that using hearsay to set the amount was error, relying on Bianchini v. State, 77 So. 3d 247, 248 (Fla. 4th DCA 2012), which held that hearsay may not be used to determine restitution “when there is a proper objection by the defense.” The court said the State “overlooks that Bianchini was decided under an out-of-date version” of section 775.089(7)(c). 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., effective July 1, 2021.)
Why Dacosta still lost on this point. The record showed that the trial judge “expressly found the check stubs had the requisite indicia of reliability when it overruled Appellant’s hearsay objection below.” Dacosta did not challenge that finding in his appeal. The court held that he had waived the point, citing Rogers v. State, 51 Fla. L. Weekly D1313 (Fla. 6th DCA June 29, 2026): “Issues not raised in the initial brief are waived or abandoned.” It then rejected the State’s concession, citing Brannon v. State, 396 So. 3d 420, 422 n.1 (Fla. 6th DCA 2024), for the point that an appellate court is not bound by a party’s concession of error.
The unrelated-sums argument. Dacosta identified five check stubs he said were unrelated to the offense. The court found “it is not clear from the record whether those particular check stubs were even included in the total amount awarded.” Because he did not give the court enough information to meet his burden on appeal, it affirmed “without further comment.” It quoted Lynn v. City of Fort Lauderdale, 81 So. 2d 511, 513 (Fla. 1955): “the duty rests upon the appealing party to make error clearly appear.”
Reading it (the author’s, not the court’s). Two things stand out for restitution hearings. A hearsay objection is no longer enough by itself under the current statute; the question the opinion treats as decisive is whether the judge made a reliability finding and whether the appellant attacks it. And a challenge to the amount needs a record that ties specific items to the total. The opinion does not say what would have happened had Dacosta challenged the reliability finding.
Panel: Judges Brownlee (author), Wozniak and Mize. The opinion is not final until time expires to file a motion for rehearing and any timely motion is decided.
Source: Dacosta v. State, No. 6D2025-1329 (Fla. 6th DCA Oct. 16, 2026). This article is general information, not legal advice.
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