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holding that an estimated cost of repairs to the victim’s truck and the original purchase price of a damaged CD player obtained from an electronics store employee, not only did not establish the fair market value of the items, but was also inadmissible hearsay
Summary of this case from Wynn v. StateOpinion
A96A2514.
DECIDED MARCH 10, 1997.
Restitution. DeKalb Superior Court. Before Judge Mallis.
Antje R. Kingma, for appellant.
J. Tom Morgan, District Attorney, Barbara B, Conroy, Desiree S. Peagler, Niria L. Domnguez, Assistant District Attorneys, for appellee.
Anthony S. Cardwell pled guilty to four counts of entering an automobile and was ordered to pay restitution to three victims as a condition of probation. He appeals, contending that the State failed to prove the fair market value of the items taken or damaged. We agree.
Pursuant to the grant of an out-of-time appeal by the trial court.
A restitution hearing was held pursuant to OCGA §§ 17-14-1 et seq. at which two of the four victims testified.
The order of restitution does not contain the written findings required by OCGA § 17-14-10 regarding consideration of certain specified factors. While the factors were considered as to victim Watkins as reflected on the partial record before us, the order does not reflect them, as required. Compare Gaskin v. State, 221 Ga. App. 142, 144 (3) ( 470 S.E.2d 531) (1996), and Dukes v. State, 213 Ga. App. 701, 703 (5) ( 446 S.E.2d 190) (1994), with Cheeks v. State, 218 Ga. App. 212 ( 460 S.E.2d 860) (1995). Although this alone would not necessitate a new restitution hearing, since it could be rectified upon remand if the required factors were actually considered although not reflected in the order of restitution, a new hearing is required for another reason.
Victim Krissel's testimony was not taken down, but receipts for the original purchase of the items taken from his vehicle are contained in the record.
"The amount of restitution ordered may be equal to or less than, but not more than, the victim's damages." OCGA § 17-14-9. "`[T]he maximum amount of restitution recoverable in a criminal case is that which would be recoverable in a civil action. [Cits.]' Lawrenz v. State, 194 Ga. App. 724 (1) ( 391 S.E.2d 703) (1990)." Gaskin supra at 145.
Fair market value is the measure of such damages and it must be determined exactly. Id. Here, victim Watkins testified to the estimated cost of repairs to his truck and the original purchase price of the damaged CD player which he had obtained from a Circuit City employee who obtained it from a computer. In addition to not being the fair market value of the items, both of these figures are inadmissible hearsay. Sabo v. Futch, 226 Ga. 352 (1) ( 175 S.E.2d 16) (1970); Hurst Boiler c. Co. v. Firstline Corp., 206 Ga. App. 446, 447 (1) ( 426 S.E.2d 22) (1992); Lovell v. State, 189 Ga. App. 311, 313 (3) ( 375 S.E.2d 658) (1988).
There is no testimony or other evidence concerning Davis' damages and the documentary evidence in the record for Krissel reflects only purchase prices.
Judgment of conviction affirmed, order of restitution vacated and remanded. Pope, P.J., and Smith, J., concur.