May, J.
John Paul Garcia appeals the court’s imposition of his sixty-six month sentence and its order of restitution. He asserts the restitution order was an abuse of discretion and the length of his sentence is inappropriate in light of his character and offense.
We affirm in part and reverse and remand in part.
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The trial court entered a restitution order in the amount of $3,600.00. The only support for the order came in the probable cause affidavit, [footnote omitted] which states:
Paul Bowman related the following: On December 27, 2012, in the late morning hours at the location of 1855 US 41 in Schererville, he responded to an advertisement on Craigslist to buy in one lot 200 Morgan dollars at $22 each coin (cash only) by meeting the seller at McDonalds. Upon arrival, he met an unknown male subject who gave him what purported to be 180 Morgan dollars. In return, he handed this subject $3,600 in cash.
(App. at 11-12.) As we have previously explained: “The statement of facts presented in a probable cause of arrest affidavit pose a risk of unreliability that the hearsay rule is designed to protect against.” Tate v. State, 835 N.E.2d 499, 509 (Ind. Ct. App. 2005), trans. denied. Thus, we decline to accept that document as a valid basis for upholding the order herein. The State offered no other proof of the amount of Bowman’s loss, Bowman was not present at the sentencing hearing, and no additional evidence or testimony concerning this estimate was presented.
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The State bore the burden of establishing the restitution amount. Id. The State could have met that burden by obtaining an affidavit from Bowman, the victim. Here, the State did not establish the validity of the probable cause affidavit but instead, asked the court to enter a restitution order in the amount reflected in the probable cause affidavit. More was required. Accordingly, the trial court abused its discretion in entering the restitution order. See [J.H. v. State, 950 N.E.2d 731, 734 (Ind. Ct. App. 2011)].
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Affirmed in part; reversed and remanded in part.
Crone, J., concurs. Bradford, J., concurs in part and dissents in part with separate opinion.
Bradford, Judge, concurring in part and dissenting in part.
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… Without contesting the accuracy of the probable cause affidavit or the amount of Bowman’s loss, Garcia made the bald assertion at sentencing, and now on appeal, that the affidavit is insufficient to support a restitution order. The State counters that it was appropriate for the trial court to rely on the probable cause affidavit. I agree with the State.
Indiana Rule of Evidence 101(d)(2) specifically provides that the Rules of Evidence do not apply in sentencing hearings. …
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The amount of proof necessary to support a restitution order varies from case to case. For instance, when establishing the damage to property or value of property stolen, a higher level of proof might be required than has been produced in this case. But in this matter, the victim’s loss was the United States currency paid for the fake coins, an easily definable loss not subject to a valuation attack.
Although the restitution statute is silent on the types of material open to consideration, it certainly does not limit it to evidence that would be admissible in a trial used to determine guilt or innocence. We have held that “[e]vidence supporting a restitution order is sufficient ‘if it affords a reasonable basis for estimating loss and does not subject the trier of fact to mere speculation or conjecture.’” S.G. v. State, 956 N.E.2d 668, 683 (Ind. Ct. App. 2011) (quoting T.C. v. State, 839 N.E.2d 1222, 1227 (Ind. Ct. App. 2005)), trans. denied. Setting Garcia’s restitution to Bowman based on a specific amount included in the probable cause affidavit, which amount was told to the affiant, is not resorting to speculation or conjecture. I would hold that under the circumstances of this case, a probable cause affidavit whose authenticity and accuracy have not been questioned, much less shown to be suspect,7 may be considered by the trial court in ordering restitution.
[Footnote 7:] Although generally prepared by police officers, there is absolutely no basis on which to conclude that probable cause affidavits are inherently suspect, despite some Indiana authority to that effect. Indeed, an affidavit intended to provide the probable cause to hold a person to answer for a crime must be submitted in writing or orally and—significantly and in contrast to, say, a police investigative report—under oath and penalty of perjury. See Ind. Code §§ 35-33-7-2; 35-33-5-2(c). Moreover, under Indiana and federal law, “a probable cause affidavit must include all material facts, which are those facts that ‘cast doubt on the existence of probable cause.’” Ware v. State, 859 N.E.2d 708, 718 (Ind. Ct. App. 2007), trans. denied.
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Because I would affirm the trial court’s restitution order, I respectfully dissent in part.