M.P. v. State, Case No. 2D17-871
| Decision Date | 21 September 2018 |
| Docket Number | Case No. 2D17-871 |
| Citation | 256 So.3d 231 |
| Parties | M.P., Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Howard L. Dimmig, II, Public Defender, and Anthony C. Musto, Special Assistant Public Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
M.P. appeals the restitution judgment entered after the trial court adjudicated him delinquent based on his admission to committing, among other delinquent acts, burglary and grand theft of Raul Laureano-Cheveres's motor vehicle. The written restitution judgment orders M.P. to pay Laureano-Cheveres $5080, which was the sum of the trial court's oral findings on Laureano-Cheveres's insurance deductible for repairing the vehicle, the amount that he had to personally pay to replace the vehicle's damaged tire and damaged rims, and the fair market value of items that had been inside the vehicle when it was stolen but were missing when the police recovered it.
We agree with M.P.'s argument that competent substantial evidence does not support the restitution awards for the electronic torque wrench, the Samsung Gear S watch, and the cordless screwdriver that were missing from the vehicle, but we reject without further comment his challenges to the trial court's findings regarding the other items. We also agree that the trial court erred in failing to determine whether the restitution award exceeded what M.P. could reasonably be expected to make or pay. Therefore, as explained below, we reverse the restitution judgment and remand for further proceedings.
Laureano-Cheveres was the only witness at the restitution hearing. He testified that he had to pay an insurance deductible for damage to the body of his vehicle and had to pay out of pocket to replace one tire and two rims that had been damaged. He also testified that upon return of his vehicle in October 2016, he had noticed that the following items, which had been inside of the vehicle at the time of the theft, were missing: two impact wrenches, an air impact wrench, a cordless drill, an electronic torque wrench, a 100-round magazine for an AR-15, a Samsung Gear S watch, a cordless screwdriver, and Halloween costumes.
Laureano-Cheveres purchased the cordless screwdriver "[i]n the 2013 timeframe, 2014" for "[t]wo hundred and forty-some dollars, $44 -- $244 or $243," and "it was [in] fairly good working condition" before being stolen. He purchased the electronic torque wrench, which was "used for precision usage," "[a]round 2013, somewhere around there" for "[f]our-hundred and fifty-some dollars." He purchased the Samsung Gear S watch, which he described as "a phone as well," "in 2012, 2013, somewhere around that timeframe" for $300. He also mentioned that the tools were his "professional tools," but beyond that, his description of these three items was limited to the foregoing.
M.P. argued that the State failed to introduce sufficient evidence of the fair market value of most of the stolen items because Laureano-Cheveres testified merely to their purchase price and date, did not testify as to the condition of some items at the time of the theft, and never mentioned depreciation. The trial court disagreed, relying on this court's opinion in Duncan v. State, 192 So.3d 654 (Fla. 2d DCA 2016), and awarded restitution of $1200 for the two impact wrenches ($600 each), $400 for the air impact wrench, $700 for the cordless drill, $200 for the AR-15 magazine, $80 for the Halloween costumes, $1000 for the insurance deductible, and $500 for the one tire and two rims, the sum of which is $4080. The court also awarded $450 for the electronic torque wrench, $250 for the cordless screwdriver, and $300 for the Samsung Gear S watch, resulting in total restitution of $5080.
Following this oral pronouncement, M.P. objected because the trial court had failed to make a finding regarding what M.P. could reasonably be expected to make or pay. But the court merely responded, "Okay," and then imposed the restitution as a lien pursuant to the State's request. M.P. timely appeals.
The court may order a delinquent child to pay restitution "for any damage or loss caused by the child's offense in a reasonable amount or manner to be determined by the court." § 985.437(2), Fla. Stat. (2016). When the trial court orders restitution, however, "the amount of restitution may not exceed an amount the child and the parent or guardian could reasonably be expected to pay or make." Id. The State has the burden of proving the amount of restitution by the greater weight of the evidence. See J.L.C. v. State, 189 So.3d 260, 261 (Fla. 2d DCA 2016). We review for an abuse of discretion the trial court's determination of the amount of restitution, and we will not disturb the findings underlying that determination if competent substantial evidence supports them. See id.
Unlike criminal offenses, in which the value of the property involved is an essential element that should be proven by establishing its fair market value at the time of the crime, restitution does not demand "such a rigid standard of proof." See State v. Hawthorne, 573 So.2d 330, 332 (Fla. 1991). Thus, "a court is not tied to fair market value as the sole standard for determining restitution amounts, but rather may exercise such discretion as required to further the purposes of restitution." Id. at 333. But when the court "determine[s] that a restitution amount equal to fair market value adequately compensates the victim or otherwise serves the purposes of restitution, ... the value should be established either through direct testimony or through evidence of the four factors announced in Negron [1 ]." Id. (footnote omitted). The direct testimony can be established by a victim who opines as to the fair market value at the time of the theft, so long as the victim is competent to testify to such by demonstrating sufficient familiarity with the item and its value. See S.M. v. State, 159 So.3d 966, 968 (Fla. 2d DCA 2015). Otherwise, the trial court should ascertain the fair market value by considering evidence of its original market cost, its manner of use, its general condition and quality, and the percentage of depreciation. See Hawthorne, 573 So.2d at 332-33.
Laureano-Cheveres testified that he purchased the cordless screwdriver two to three years before the incident for either $243 or $244, that it was one of his "professional tools," and that it was in fairly good working condition at the time of the theft. This was sufficient evidence for the trial court to determine an appropriate amount of restitution, even absent evidence of depreciation. See Duncan, 192 So.3d at 655-56 (); J.M. v. State, 661 So.2d 1285, 1285-86 (Fla. 4th DCA 1995) ().
Nevertheless, we reverse the restitution awarded for the cordless screwdriver because competent substantial evidence does not support the trial court's award of $250 in restitution for that item. There was no evidence that it had somehow appreciated in value since Laureano-Cheveres purchased it. See Ibrahim v. State, 866 So.2d 749, 751 (Fla. 5th DCA 2004) ().
We also reverse the restitution awarded for the electronic torque wrench and the Samsung Gear S watch because the State failed to introduce sufficient evidence to support an award of restitution for either item. Laureano-Cheveres never personally opined as to either item's fair market value at the time of the theft but merely testified to the price that he had originally paid for each approximately three to four years before the theft. With only this information and the absence of any testimony concerning either the condition of each at the time of the theft or depreciation, the trial court had insufficient evidence from which it could determine a fair market value at the time of the theft. See Thompson v. State, 68 So.3d 425, 427 (Fla. 4th DCA 2011) (); see also Hawthorne, 573 So.2d at 332, 333 & n.6 (...
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...restitution amounts, but rather may exercise such discretion as required to further the purposes of restitution."); M.P. v. State, 256 So. 3d 231, 234 (Fla. 2d DCA 2018) ("We review for an abuse of discretion the trial court's determination of the amount of restitution, and we will not dist......