Bakos v. State, 96-1765

• Decision Date: 17 September 1997
• Docket Number: No. 96-1765,96-1765
• Citation: 698 So.2d 943
• Parties: 22 Fla. L. Weekly D2202 Jennifer BAKOS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 943

698 So.2d 943

22 Fla. L. Weekly D2202

Jennifer BAKOS, Appellant, v. STATE of Florida, Appellee.

No. 96-1765.

District Court of Appeal of Florida,

Fourth District.

Sept. 17, 1997.

Richard L. Jorandby, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.

MAY, MELANIE G., Associate Judge.

The single issue in this appeal is the amount of restitution awarded to the victim in this case. The appellant pled no contest to a four-count Information that had alleged grand theft, grand theft auto, fraudulent use of a credit card, and exploiting an elderly person. The Information alleged that the appellant had lived with the victim as a caretaker. Over a specific period of time, including a period where the victim was hospitalized, the appellant had taken and/or used items belonging to the victim without her permission.

The appellant admitted that she owed restitution for certain items, but raised three reasons why she should not be held responsible for certain enumerated items for which the victim sought restitution. First, she argued that the value of some items was not proven; second, some of the missing items fell outside of the dates alleged in the Information; and third, the evidence did not support the defendant having taken certain items.

We have reviewed the laundry list of items and the testimony presented in support of the requested restitution. After sorting through the wash, we find that the appellant's position is consistent with the law on restitution as to a number of the items at issue. As to the items enumerated below and for the reasons set forth below, we reverse in part.

Section 775.089 provides for restitution "caused directly or indirectly by the defendant's offense." Fla. Stat. § 775.089(1)(a) (1995). The State must establish by a preponderance of the evidence that a significant relationship existed between the loss and the defendant's actions. Moore v. State, 623 So.2d 842 (Fla. 5th DCA 1993). Restitution cannot be awarded for losses which occur outside the time alleged in the Information. Stewart v. State, 629 So.2d 982 (Fla. 5th DCA 1993). And, while the Court is not restricted to fair market value in determining restitution, it should consider the fair market value through direct testimony or evidence of the original cost, the use of the item, and its condition at the time of the theft. State v. Hawthorne, 573 So.2d 330 (Fla.1991); Domaceti v. State, 616 So.2d 1148 (Fla. 4th DCA 1993).

The victim claimed restitution for a gold herringbone bracelet and two necklaces that were purchased approximately ten years ago for $100 apiece. The victim testified to the original cost at which she also currently valued the items, but there was no testimony as to the depreciation of the items or their condition at the time of the theft. The victim testified that a pair of heart-shaped earrings had been purchased by her husband for $180. The victim also claimed restitution for another seven pairs of gold earrings. In support of her claim on these "other" earrings, she testified that "they were all good earrings and they...