Katrina R. Phillips v. State , 2014 Fla. App. LEXIS 10117 ( 2014 )


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  •        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FOURTH DISTRICT
    January Term 2014
    KATRINA R. PHILLIPS,
    Appellant,
    v.
    STATE OF FLORIDA,
    Appellee.
    No. 4D13-1046
    [July 2, 2014]
    Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
    Indian River County; Robert L. Pegg, Judge; L.T. Case No.
    312012CF001603A.
    Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant
    Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L.
    Melear, Assistant Attorney General, West Palm Beach, for appellee.
    PER CURIAM.
    The defendant appeals from a restitution order following her conviction
    and sentence for various crimes involving the victim’s stolen jewelry. The
    defendant primarily argues that the circuit court erred in determining the
    restitution amount based on hearsay evidence which the victim obtained
    from websites. Based on case law, we are compelled to agree with the
    defendant, and thus reverse and remand for a new restitution hearing.
    At the restitution hearing, the victim testified that, after she prepared
    the list of stolen jewelry, the prosecutor asked her to research how much
    the jewelry was worth. The victim testified that she researched online the
    jewelry’s value as follows:
    I got high and low prices. Some items I found three or four
    pieces that were similar, added them together and divided
    them by whether I got three or four prices. . . . [A]ll the prices
    that I got were just middle prices. . . . .
    The defendant objected on hearsay grounds to the victim testifying
    about any online values. The circuit court overruled the objection. The
    court commented, “I think it’s a valid method of attempting to obtain a
    market value.”
    After the court’s ruling, the following exchange occurred between the
    prosecutor and the victim regarding the victim’s estimated value for each
    item:
    Q. . . . [F]irst item that you mentioned, the one-carat
    diamond, what was the amount you were able to determine?
    A. The average was $6,200.
    Q. . . . [S]econd item, the tennis bracelet . . . what was the
    amount you were able to determine?
    A. [$2,950].
    ....
    Q. . . . [T]hird item, the [amethyst charm] . . . how much were
    you able to determine that was worth?
    A. . . . [T]hat one was difficult because it had been passed
    through my family for numerous generations. We got it back
    in the 1800s and as far as similar stuff, I got [$2,748].
    ....
    Q. . . . [N]umber 4 [the amethyst bracelet], how . . . much
    were you able to determine for that?
    A. [$3,895].
    ....
    Q. . . . [N]umber 5 . . . amethyst earrings.
    A. . . . This I only got one price for because I saw a picture of
    the earrings that looked exactly like mine and [they were]
    $721.
    2
    Q. . . . [N]umber 6, gold chain necklace?
    A. $449.
    Q. . . . [N]umber 7, rope bracelet.
    A. $349.
    ....
    Q. . . . [N]umber 8, [the one-quarter carat] diamond earrings?
    A. . . . I went with the quarter carat because I do believe that
    they were quarter carat. My ex-husband said they were half
    carat each but I was pretty sure they were quarter carats.
    . . . $724.
    Q. . . . [N]umber 9, gold wedding band.
    A. $648 . . . .
    Q. . . . [N]umber 10, aquamarine [and] gold bracelet . . . .
    A. . . . $123. And that item is irreplaceable too.
    Q. . . . Item 11, which is a gold heart ring with a [quarter]
    carat diamond in each heart.
    A. $1,477.
    Q. And . . . all of these items . . . this is your replacement
    value if you were to go out and try to get . . . the same type of
    items that were stolen from you –
    ....
    A. Right. Similar . . . as I could find.
    ....
    Q. Item 12 [the gold flower ring].
    A. $142.
    3
    The victim testified that the total amount which she was seeking for the
    jewelry was $20,511.
    On cross-examination, the victim recounted the names of the six
    websites she used to perform her research. She also testified that she
    performed her research on two separate days – the first day approximately
    two months before the restitution hearing, and the second day
    approximately two weeks before the restitution hearing. She conceded
    that she did not purchase any of the items and, for most of the items, had
    no first-hand knowledge of their purchase date, original value, or quality.
    She also conceded that, at the defendant’s sentencing hearing two months
    earlier, she estimated the items’ total value to be $14,000, and had
    changed her estimate based on her internet research.
    During closing arguments, the defendant contended that the victim’s
    estimate of the items’ values from the internet was not sufficient to
    establish the restitution amount because it was inadmissible hearsay.
    The circuit court found that the victim’s testimony was sufficient to
    establish the restitution amount. The court reasoned:
    [Sage v. State, 
    988 So. 2d 150
     (Fla. 4th DCA 2008),] tells us
    how we figure out what restitution should be. And the four
    factors that set forth what we can consider and ascertain the
    fair market value are the original market cost, the manner in
    which the item was used, the general condition and the
    quality of the item, and the percentage of depreciation. I’m
    not sure that jewelry ever depreciates, but the defendant
    should not get the benefit of a bargain by . . . stealing
    something that’s antique or that’s old, that it’s no longer
    capable of somebody just finding an exact duplicate like you
    could an automobile or a stereo or something like that. Also
    [Sage] stands for the proposition that an owner of property is
    generally qualified to testify as to fair market value of the
    property. The burden is certainly on the State to do that, but
    also [Sage] tells us that when a plea agreement is reached and
    a defendant agrees to pay restitution, it should be liberally
    construed in favor of making the victim whole again, and
    that’s what I intend to do in this case. I recognize that some
    of these items may not be exactly capable of being an exact
    value . . . because she just didn’t buy these things. She
    doesn’t have receipts for when she actually bought them
    because the jewelry, as oftentimes is, is a gift. So I choose to
    resolve the credibility as a fact finder in favor of . . . the victim.
    4
    . . . I’m going to find restitution in the total amount in this
    case of $20,511.
    After the circuit court entered a written restitution order, this appeal
    followed. The defendant primarily argues that the circuit court erred in
    determining the restitution amount based on hearsay evidence which the
    victim obtained from websites. We review the court’s determination of the
    restitution amount for an abuse of discretion. T.D.C. v. State, 
    117 So. 3d 809
    , 811 (Fla. 4th DCA 2013).
    Based on case law, we are compelled to agree with the defendant’s
    argument. “Hearsay evidence may not be used to determine the amount
    of restitution when there is a proper objection by the defense to the
    hearsay evidence.” Conway v. State, 
    115 So. 3d 1058
    , 1059 (Fla. 4th DCA
    2013) (citation and quotation marks omitted); see also G.M.H. v. State, 
    18 So. 3d 728
    , 729-30 (Fla. 2d DCA 2009) (reversing and remanding for a new
    restitution hearing based on the state’s concession that the trial court
    should not have admitted the victim’s mother’s hearsay evidence of repair
    prices based on her internet research). Here, the victim’s reliance on
    hearsay evidence from websites resembles a witness’s reliance on hearsay
    evidence from a catalog or contacts with non-witnesses, which courts have
    held cannot support the determination of a restitution amount. See, e.g.,
    Gonzalez v. State, 
    40 So. 3d 86
    , 89 (Fla. 4th DCA 2010) (“Catalog prices
    alone are insufficient to establish a sufficient predicate.”); I.M. v. State, 
    958 So. 2d 1014
    , 1016 (Fla. 1st DCA 2007) (“[The witness] did not have
    personal knowledge of the value of the ruined items, but relied upon the
    opinions of his vendors, who did not testify.”). Thus, the victim’s reliance
    on hearsay evidence from websites was insufficient to establish the
    restitution amount.
    In reaching our conclusion, we recognize that it was practically
    impossible for the victim to establish the restitution amount without
    relying on hearsay evidence. As the victim conceded, she did not purchase
    any of the items and, for most of the items, had no first-hand knowledge
    of their purchase date, original value, or quality. Therefore, in her good-
    faith effort to establish the values of the items, she relied on her memory
    of the items’ appearance, her understanding of the quality, and her ability
    to find similar items on the internet. She went so far as to visit multiple
    websites in order to determine an average price for the items.
    The fact that it was practically impossible for the victim to establish the
    restitution amount without relying on hearsay evidence appears to have
    caused an unjust result for the victim, because she and the state appear
    to have no other means by which to prove the restitution amount.
    5
    This case is distinguishable from the situation we faced in Conway,
    where the victim could have presented a competent witness to testify as to
    the stolen item’s restitution amount. In Conway, the stolen item was an
    antique silverware set. The set was melted down by the pawnshop which
    purchased it from the defendant. However, the victim’s son testified that
    he contacted a silver company representative who was able to identify and
    determine a restitution amount for the set. The amount was relied upon
    by the trial court to determine restitution. We reversed because the son’s
    testimony was based on hearsay – merely reciting his conversation with
    the silver company representative. 
    115 So. 3d at 1059
    . Presumably, if the
    victim or the state had incurred the expense of presenting the silver
    company representative as a witness at the restitution hearing, then the
    hearsay objection would have been resolved, allowing the restitution
    amount to be awarded.
    Here, however, it is highly unlikely that the victim could have presented
    representatives from the various websites she researched to testify as to
    the restitution amount. Putting aside the time and expense of such an
    endeavor, such representatives would have a difficult time establishing
    their competency or reliability to opine as to the stolen items’ value. Unlike
    the recognizable antique silverware set in Conway, the stolen items here
    were not unique and, because the items were gifts, the victim had no
    reason to possess any knowledge regarding the items’ purchase date,
    original value, or quality. Thus, the testifying representatives would be
    left to accept the victim’s non-descript description of the stolen items and
    merely speculate that a similar-looking item had a certain value. Such
    speculative testimony likely would be insufficient to establish the
    restitution amount.       See 
    id.
     (the amount of restitution “must be
    established through more than mere speculation”) (citation and quotations
    marks omitted). Thus, although we are obligated to remand for a new
    restitution hearing, we are doubtful that the new hearing will provide the
    victim with any relief.
    We surmise that the victim here is not alone. This court and our sister
    courts recently have issued multiple opinions reversing restitution awards
    where the victim and the state have not presented competent, substantial
    evidence supporting the amount awarded. See, e.g., T.D.C., 
    117 So. 3d at 811
     (“[A]bsent circumstances tending to show that [fair market value] does
    not adequately compensate the victim or otherwise serve the purpose of
    restitution . . . the amount of restitution should be established through
    evidence of [fair market value] at the time of the theft.”) (citation and
    quotation marks omitted). In each case, a wholly innocent person has
    been left with a more difficult, if not impossible, path to recover their stolen
    6
    items’ value. The circuit court in this case recognized this unjust result
    in honorably attempting to justify its determination of the restitution
    amount here.
    Based on the foregoing, we recommend that our state legislature revisit
    section 775.089, Florida Statutes (2012), and consider providing trial
    courts with wider discretion in setting the restitution amount. We
    recommend the following underlined revision to section 775.089(7):
    Any dispute as to the proper amount or type of restitution
    shall be resolved by the court by the preponderance of the
    evidence. 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.
    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.
    See State v. Hawthorne, 
    573 So. 2d 330
    , 333 (Fla. 1991) (“[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.”) (emphasis added); Noel v. State, 
    127 So. 3d 769
    ,
    774 (Fla. 4th DCA 2013) (“[R]estitution to victims is a central ‘penological
    interest’ of Florida criminal law.”); § 90.802, Fla. Stat. (2012) (“Except as
    provided by statute, hearsay evidence is inadmissible.”) (emphasis added).
    This proposed statutory change would permit a victim-owner of property
    to offer an opinion as to its value that is based upon hearsay.
    In the meantime, we will enforce the law as it currently exists. We
    reverse and remand for a new restitution hearing.
    Reversed and remanded for a new restitution hearing.1
    1  The defendant also argues that the circuit court erred in setting the restitution
    amount based on the stolen items’ purchase price instead of their fair market
    value. We disagree. The record indicates that the court determined the
    restitution amount based on the stolen items’ fair market value, albeit improperly
    7
    GROSS, GERBER and FORST, JJ., concur.
    *          *          *
    Not final until disposition of timely filed motion for rehearing.
    based upon hearsay evidence from websites. See T.D.C., 
    117 So. 3d at 811
    (“Generally, the amount of restitution is established through evidence of fair
    market value of the stolen items at the time of the theft.”) (citation and quotation
    marks omitted).
    8
    

Document Info

Docket Number: 4D13-1046

Citation Numbers: 141 So. 3d 702, 2014 WL 2957435, 2014 Fla. App. LEXIS 10117

Judges: Gross, Gerber, Forst

Filed Date: 7/2/2014

Precedential Status: Precedential

Modified Date: 10/19/2024