Toole v. State

• Decision Date: 20 February 2019
• Docket Number: No. 4D17-2115,4D17-2115
• Citation: 270 So.3d 371
• Parties: Cricket Kathleen TOOLE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

270 So.3d 371

Cricket Kathleen TOOLE, Appellant,

v.STATE of Florida, Appellee.

No. 4D17-2115

District Court of Appeal of Florida, Fourth District.

[February 20, 2019]

ON DEFENDANT'S MOTION FOR REHEARING, REHEARING EN BANC, AND CERTIFICATION

May, J.

We grant the defendant's motion for rehearing and certification, deny the defendant's motion for rehearing en banc, and substitute the following opinion for the opinion we issued on October 24, 2018.

The labyrinth of restitution is at issue in this appeal. The law on restitution is both challenging in terms of proof, yet essential to ensure justice for the victim. It currently requires proof of the fair market value of property lost or damaged. That proof was lacking in this case. We therefore reverse and remand the case for a new restitution hearing.

The defendant pled guilty to dealing in stolen property and false verification of ownership to a pawnbroker. The State nolle prossed the grand theft charge. The plea agreement did not specify a restitution amount, but stated: "Restitution ordered for victim ...; amount to be determined by agreement of parties or at restitution hearing (hearsay & causation objections waived)." The transcript does not reflect any limitation on the amount of restitution.

At the hearing, the State sought restitution not only for the items pawned, but for all items taken. The defendant objected and argued that restitution should be limited to the items pawned as she pled only to the dealing in stolen property and false verification of ownership to a pawnbroker charges. She did not plead to the grand theft charge, which the State nolle prossed. The court overruled the objection and proceeded with the hearing.

The victim testified to the items' value by providing their original price, and guesstimating their replacement value.¹ For example, the victim testified that a Samsung flat screen television "roughly" cost "probably around" $ 5000 or $ 6000, that an X-Box 360 cost "right around" $ 100, that some stolen sweatshirts cost "around 70 dollars apiece," that a leather jacket cost "[p]robably around 4- or 500 dollars," and that a bag containing pool sticks was worth "right around" $ 1,200.

The State sought $ 9,984.12, an amount reached by subtracting the value of some recovered items from the total amount, and the victim's guesstimates of replacement value for the remaining items. The defendant not only objected to restitution for the items that had not been pawned, but to the victim's guesstimates, and his qualifications to testify to present value. The court ordered the defendant to pay $ 9,984.12, which included the original price, not the fair market value, of many of the items.

Section 775.089(7), Florida Statutes, provides:

Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense is on the state attorney. The burden of demonstrating the present financial resources and the absence of potential future financial resources of the defendant and the financial needs of the defendant and his or her dependents is on the defendant. The burden of demonstrating such other matters as the court deems appropriate is upon the party designated by the court as justice requires.

§ 775.089(7), Fla. Stat. (2018).

State v. Hawthorne , 573 So.2d 330, 333 (Fla. 1991) provides the formula for determining fair market value for restitution purposes. Fair market value should be established through direct testimony or evidence of the following four factors: "(1) original market cost; (2) manner in which the item was used; (3) the general condition and quality of the item; and (4) the percentage of depreciation." Id . at 332.

There are a few more rules that apply to restitution hearings. One, victims are "qualified" to testify to the value of their property. Id. at 333 n.6. Two, "[h]earsay evidence may not be used to determine the amount of restitution when there is a proper objection by the defense to the hearsay evidence." Phillips v. State , 141 So.3d 702, 705 (Fla. 4th DCA 2014) (quoting Conway v. State, 115 So.3d 1058, 1059 (Fla. 4th DCA 2013) ). Three, the burden of proof is preponderance of the evidence. § 775.089(7), Fla. Stat. (2018). And four, trial courts have discretion in ruling on the admissibility of evidence. Phillips , 141 So.3d at 707.

Here, the victim testified about the items' purchase price and provided some receipts. This was sufficient to satisfy the first factor, the original cost. But, there was no testimony about the manner in which the items were used, their general condition and quality, and the percentage of depreciation. The victim merely provided replacement cost guesstimates. This testimony was insufficient to establish fair market value.

In Thompson v. State , 68 So.3d 425, 427 (Fla. 4th DCA 2011) we reversed a restitution award because it was "based on purchase price without adequately calculating the fair market value of the stolen items."

We find the victim's testimony from personal knowledge regarding the purchase price and purchase date to be competent evidence to substantiate the items' original cost. The record, however, contains no competent evidence of the "general condition and quality of the items" or the percentage of depreciation that would permit the trial court to calculate market value.

Id . (citations omitted).

Contrastingly, in Yaun v. State , 898 So.2d 1016, 1017 (Fla. 4th DCA 2005), we affirmed a trial court's restitution award based on the victim's testimony of the items' value. We did so, however, because restitution was part of the plea agreement. Id. The record does not reflect such an agreement here.

Under either Thompson or Yaun , the evidence here was insufficient.

Restitution continues to be a perplexing uphill battle for victims. Recently, Floridians voted to amend our constitution to in part address restitution. Art. I, § 16, Fla. Const. (2018) (Constitutional ballot Amendment 6, also known as Marsy's Law). The amendment ensures the victim's right to:

• full restitution and to be provided with assistance collecting restitution;

• have any monies or property collected from any person who has been ordered to make restitution be first applied to the restitution owed to the victim before paying any amounts owed to the government; and

• compensation as provided by the law.

See Art. I, § 16, Fla. Const. (2018).

Despite the statute, the rules, the case law, and the constitutional amendment, proving restitution continues to be difficult for victims, and receiving compensation for their loss continues to be elusive. See, e.g., G.M.H. v. State, 18 So.3d 728, 729–30 (Fla. 2d DCA 2009) ; I.M. v. State, 958 So.2d 1014, 1016 (Fla. 1st DCA 2007) ; Smith v. State , 941 So.2d 479, 481 (Fla. 3d DCA 2006) ; Ibrahim v. State , 866 So.2d 749, 751 (Fla. 5th DCA 2004).

We have previously suggested a legislative fix by adding the following to section 775.089(7) : "The court is not bound by 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, including consideration of hearsay." See Phillips , 141 So.3d at 706. And yet, the statute remains the same as does the problem--proving restitution.

Because the State failed to prove fair market value here, we reverse the restitution award, and remand the case for a new hearing to determine restitution using Hawthorne's formula.² But, because the issue persists, we certify the following question to the Supreme Court of Florida as one of great public importance.

Is Hawthorne's formula for determining restitution based on the fair market value of the victim's property still viable after the passage of Amendment 6 (Marsy's Law), or should a trial court no longer be bound by fair market value as the sole standard for determining restitution amounts, and instead exercise such discretion as required to further the purposes of restitution, including consideration of hearsay?

Reversed and remanded for a new restitution hearing.

Gerber, C.J., concurs.

Ciklin, J., concurs specially with opinion.

Ciklin, J., concurring specially.

With the fervent hope that the Florida Legislature tackles and addresses Florida's broken statutory restitution scheme, I take the liberty of setting out most of an insightful law review article written by Florida attorney Adam Hapner.

DO YOU KNOW THE FAIR MARKET VALUE OF YOUR PROPERTY?: A CALL TO THE LEGISLATURE TO REVISE SECTION 775.089, FLORIDA STATUTES, GOVERNING RESTITUTION

* * * *

II. MEASUREMENTS OF PROPERTY LOSS

A. Fair Market Value

In most cases, the appropriate measure of the victim's property loss is the fair market value of the property at the time of the offense.¹⁹ "Fair market value" is defined as "[t]he price that a seller is willing to accept and a buyer is willing to pay on the open market and in an arm's-length transaction."²⁰ To establish fair market value, the State must present either direct testimony or evidence of all of the following four factors: "(1) original market cost; (2) manner in which the item was used; (3) the general condition and quality of the item; and (4) the percentage of depreciation."²¹

1. Replacement Value

Normally, replacement value is an improper measure of the victim's loss.²² But if a "ready market of identical items" to the property exists,²³ or if replacement value is the actual loss suffered by the victim,²⁴ replacement value and fair market value may be the same.

2. Retail Value

In general, retail value is also an improper measure of the victim's loss.²⁵ However, if the victim deals in the type of goods lost, stolen, or damaged, retail value—rather than replacement or wholesale value—may represent the true market value of the victim's loss.²⁶

B. "Fair Amount" Value

Fair market value is not the sole standard for determining restitution amounts.²⁷ In State v. Hawthorne , ...