CRICKET KATHLEEN TOOLE v. STATE OF FLORIDA ( 2018 )


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  •         DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FOURTH DISTRICT
    CRICKET KATHLEEN TOOLE,
    Appellant,
    v.
    STATE OF FLORIDA,
    Appellee.
    No. 4D17-2115
    [October 24, 2018]
    Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
    Beach County; Samantha Schosberg Feuer, Judge; L.T. Case No. 50-2015-
    CF-011860-AXXX-MB.
    Carey Haughwout, Public Defender, and Claire V. Madill, Assistant
    Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel,
    Assistant Attorney General, West Palm Beach, for appellee.
    CIKLIN, J.
    The defendant entered a negotiated plea to charges of dealing in stolen
    property and false verification of ownership to a pawnbroker. In exchange
    for her plea, the state nolle prossed a charge for grand theft, but the plea
    agreement required her to pay restitution to the theft victim. The
    defendant now appeals the order of restitution and raises three issues. We
    affirm on all issues, but we write to address her assertion that the state
    failed to prove the value of restitution for the stolen items. Further, with
    this opinion, we aim to capture the attention of the Criminal Law Section
    of the Florida Bar, with the hope that it will analyze the existing convoluted
    scheme for restitution in Florida and make recommendations to the
    appropriate parties to bring lucidity to the process.
    The defendant contends that, while the victim submitted receipts and
    provided testimony to evidence the original purchase price of many of the
    items in question, which were mostly electronics, the state failed to present
    evidence to establish the items’ fair market values. Because the case law
    on proof for purposes of restitution has confusingly devolved to permit a
    laissez-faire approach in order to compensate victims, we must affirm.
    On the one hand, we have indicated that “[g]enerally, the amount of
    restitution is established through evidence of fair market value of the
    stolen items at the time of the theft.” Thompson v. State, 
    68 So. 3d 425
    ,
    426 (Fla. 4th DCA 2011). “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.” 
    Id.
    On the other hand, the Florida Supreme Court has stated that “such a
    rigid standard of proof is not required for purposes of restitution.” State
    v. Hawthorne, 
    573 So. 2d 330
    , 332 (Fla. 1991). Accordingly, Florida courts
    have accepted evidence amounting to less than proof of each of the four
    fair market value factors. See, e.g., Gonzalez v. State, 
    40 So. 3d 86
    , 88-89
    (Fla. 4th DCA 2010) (affirming trial court’s entry of restitution award where
    victim testified to original purchase price, year of purchase, and
    replacement cost of stolen jewelry); Yaun v. State, 
    898 So. 2d 1016
    , 1017
    (Fla. 4th DCA 2005) (affirming restitution award where victim “identified
    each item and her assessment of its current market value” and produced
    receipts and computer print-outs for some items). Perhaps this is because
    “[w]here restitution is part of a plea bargain, it should be liberally
    construed in favor of making the victim whole.” Yaun, 
    898 So. 2d at 1017
    (quoting Hercule v. State, 
    655 So. 2d 1256
    , 1257 (Fla. 3d DCA 1995)).
    Given the broad discretion granted to trial judges with respect to
    matters of restitution, see A.G. v. State, 
    718 So. 2d 854
    , 856 (Fla. 4th DCA
    1998), we are compelled to affirm the trial court.
    Affirmed.
    GERBER, C.J., concurs.
    MAY, J., dissents with opinion.
    MAY, J., dissenting.
    I respectfully disagree with the majority. While the law on restitution
    may be somewhat confusing, it always requires proof of the fair market
    value of items lost. That proof was lacking in this case.
    The defendant pled guilty to dealing in stolen property and false
    verification of ownership to a pawnbroker. The State nolle prossed a 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).”
    2
    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 had nolle prossed. The court overruled the objection and
    proceeded with the hearing.
    The victim testified to the value of the items, but primarily testified to
    their original price, and guesstimates of replacement value. He provided
    receipts for some of the items. 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.
    The majority suggests State v. Hawthorne, 
    573 So. 2d 330
    , 333 (Fla.
    1991) provides a trial court with broad discretion to use any method it
    choses in ordering restitution. I disagree.
    Hawthorne provides a formula for determining the fair market value of
    items for restitution. 
    Id. at 332
    . 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.
    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
    , 426 (Fla. 4th DCA 2011) we
    3
    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. at 427
     (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.
    Because the State failed to prove fair market value, I would reverse the
    restitution award, and remand the case for a new hearing to determine the
    items’ fair market value using Hawthorne’s formula and subject to the
    limited nature of the defendant’s plea. Let us not forget the defendant pled
    only to dealing in stolen property and false verification of ownership to a
    pawnbroker charges. She did not plead to the grand theft charge.
    *        *         *
    Not final until disposition of timely filed motion for rehearing.
    4