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holding that the victim's testimony of the items' original purchase price was insufficient to support the restitution award because the record contained "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"
Summary of this case from M.P. v. StateOpinion
No. 4D08–1822.
2011-09-7
Darnell THOMPSON, Appellant,v.STATE of Florida, Appellee.
Edward Hoeg, Fort Lauderdale, for appellant.Pamela Jo Bondi, Attorney General, Tallahassee, and Sue–Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
Edward Hoeg, Fort Lauderdale, for appellant.Pamela Jo Bondi, Attorney General, Tallahassee, and Sue–Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
The issue presented in this appeal is whether the trial court abused its discretion in awarding restitution following appellant's conviction for burglary and grand theft. We reverse, as the trial court awarded restitution based on purchase price without adequately calculating the fair market value of the stolen items.
We review a trial court's determination of the amount of restitution for an abuse of discretion. Soriano v. State, 968 So.2d 112, 114 (Fla. 4th DCA 2007). The amount of restitution must be supported by competent, substantial evidence. Id. Generally, the amount of restitution is established through evidence of fair market value of the stolen items at the time of the theft. Id. at 115. Fair market value is calculated by reference to four factors: (1) the original market cost; (2) the manner in which the items were used; (3) the general condition and quality of the items; and (4) the percentage of depreciation. State v. Hawthorne, 573 So.2d 330, 332 (Fla.1991). This court has consistently recognized that a trial court is not limited to consideration of fair market value, but
“absent circumstances tending to show that [fair market value] does not adequately compensate the victim or otherwise serve the purpose of restitution,” fair market value should be used. Domaceti v. State, 616 So.2d 1148, 1149 (Fla. 4th DCA 1993) (citation omitted).
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. See Gonzalez v. State, 40 So.3d 86, 89 (Fla. 4th DCA 2010). 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. The trial court awarded $68,000 in restitution by reducing the purchase price of the items by “approximately ten percent” in a calculation the trial court termed “hardly scientific.” Application of such an arbitrary percentage of depreciation, without an explanation or record support, was an abuse of discretion. Kiefer v. State, 909 So.2d 572, 574 (Fla. 5th DCA 2005). The trial court also identified no special circumstances that would permit it to award purchase price in lieu of fair market value. See Wolff v. State, 981 So.2d 651, 653 (Fla. 4th DCA 2008).
Accordingly, we reverse the order of restitution and remand for an evidentiary hearing to determine either the fair market value of the stolen items or to identify special circumstances that would permit an award of restitution based on purchase price.
Reversed and remanded.
WARNER and LEVINE, JJ., concur.
POLEN, J., concurs specially with opinion.
POLEN, J., concurring specially.
I agree with the majority opinion, and write separately to address some additional aspects of the restitution sought in this case, to assist the trial court on remand.
First, by our reversal of the restitution award, we do not suggest that the amount arrived at was either too high or too low—only that the method by which the trial court determined the amount was improper.
Second, I would submit that since much of the victim's claimed losses were gold and silver jewelry, the trial court might well take judicial notice, upon request, of the significant rise in the prices of gold and silver over the past decade.
Third, despite a number of cases which seem to make it more difficult for a victim to prove the “fair market value” of their stolen property (i.e., objections of hearsay as to sources of information as to value, absence of receipts for items bought years earlier), I believe the goal of the criminal justice system should be to strive to allow full compensation to victims—not to make them victims twice.
Finally, the trial court never specified in its restitution award whether or not it found credible the victim's testimony that there was twenty thousand dollars in cash in the stolen safe. If it did, I believe restitution for that amount should be dollar for dollar. Either way, such a finding may assist the trial court in making its overall award, and would assist this court if the matter is again appealed.