CRICKET KATHLEEN TOOLE v. STATE OF FLORIDA , 270 So. 3d 371 ( 2019 )


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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
    [February 20, 2019]
    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.
    Ashley B. Moody, Attorney General, Tallahassee, and Mark J. Hamel
    and Alexandra A. Folley, Assistant Attorneys General, West Palm Beach,
    for appellee.
    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.
    1   He provided receipts for some items.
    2
    §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
    3
    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
    4
    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
    2The defendant also suggests that restitution be limited to the items pawned
    because she did not plead to the grand theft charge. A review of the plea hearing
    and plea form reveal no limitation on the restitution amount.
    19See State v. Hawthorne, 
    573 So. 2d 330
    , 333 (Fla. 1991) (“We recognize that in
    most instances the victim’s loss and the fair market value of the property at the
    time of the offense will be the same.”).
    5
    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
    20 BLACK’S LAW DICTIONARY 1785 (10th ed. 2014).
    21 Hawthorne, 
    573 So. 2d at 332
    ; see also Mansingh v. State, 
    588 So. 2d 636
    ,
    638 (Fla. Dist. Ct. App. 1991). The four fair market value factors were first
    announced in Negron v. State, 
    306 So. 2d 104
     (Fla. 1974), in which the Supreme
    Court of Florida held that when the value of property is an essential element of a
    crime, the value must be established based on the fair market value of the
    property at the time of the offense. 
    Id. at 108
    .
    22 See Ibrahim v. State, 
    866 So. 2d 749
    , 750 (Fla. Dist. Ct. App. 2004) (“Generally,
    fair market value, not replacement value, is the correct measure of damages.”).
    23 See Domaceti v. State, 
    616 So. 2d 1148
    , 1149 (Fla. Dist. Ct. App. 1993)
    (“Certainly where there is a ready market of identical items to the stolen item,
    restitution should be limited to its replacement.”).
    24 See Dixon v. State, 
    601 So. 2d 606
    , 607 (Fla. Dist. Ct. App. 1992) (“In the
    instant case, the victim for purposes of restitution is the insurer . . . . Because
    the insurance policy involved in this matter provides coverage based upon
    replacement cost, we cannot say that the trial court abused its discretion in
    concluding that the loss caused by the appellant’s act was the replacement cost
    of the stolen items.” (citation omitted)).
    25 See, e.g., Walentukonis v. State, 
    932 So. 2d 1136
    , 1137 (Fla. Dist. Ct. App.
    2006) (holding that the trial court erred in taking judicial notice of the retail value
    of a damaged truck based on a used car guide to determine the amount of
    restitution); Fletcher v. State, 
    800 So. 2d 309
    , 311 (Fla. Dist. Ct. App. 2001) (“In
    arriving at fair market value, the trial court must first consider the ‘original
    market cost’ of the stolen item, which was $1500 here. Accordingly, the $4500-
    $6000 retail cost of the watch [at the time it was purchased] was irrelevant.”).
    6
    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, the Supreme Court of Florida held that
    when fair market value does not adequately reflect the victim’s loss, such
    as with a family heirloom, or when consideration of depreciation would be
    inequitable, such as with a recently purchased car, the court “may exercise
    such discretion as required to further the purposes of restitution.” 28 In a
    subsequent case, the Supreme Court of Florida interpreted the holding in
    Hawthorne to mean that “the trial court has discretion to take into account
    any appropriate factor in arriving at a fair amount [that] will adequately
    compensate a victim for his or her loss and further the purposes of
    restitution.” 29 In other words, if the trial court finds that fair market value
    is an inappropriate measure of the victim’s loss, the appropriate measure
    is “fair amount” value. 30
    Not surprisingly, there is no precise definition of “fair amount” value.
    In recognition that the primary purpose of restitution is to compensate the
    victim, the measure is intentionally broad so it can encompass instances
    when the market value of the victim’s property does not adequately
    compensate the victim. 31 For example, in Hawthorne, after the defendant
    was found guilty of grand theft auto, the trial court ordered him to pay
    restitution to the owner of the stolen vehicle “in the amount of $1500 for
    26 See, e.g., Nix v. State, 
    604 So. 2d 920
    , 922 (Fla. Dist. Ct. App. 1992) (holding
    that “the retail value of the gasoline is an appropriate measure of the fair market
    value” of fuel stolen from a gas station); Garrison v. State, 
    553 So. 2d 1377
    , 1379
    (Fla. Dist. Ct. App. 1989) (“Under the evidence presented to the trial court, that
    court could reasonably conclude that Mr. Garrison effectively stole thirteen retail
    sales from the victim, and that the victim was entitled to be reimbursed for those
    thirteen retail sales at the fair market value established by the retail price.”).
    27 See State v. Hawthorne, 
    573 So. 2d 330
    , 333 (Fla. 1991).
    28 
    Id.
     at 333 & nn.4–5.
    29 Glaubius v. State, 
    688 So. 2d 913
    , 915 (Fla. 1997) (emphasis added).
    30 See 
    id.
    31 See Hawthorne, 
    573 So. 2d at 333
     (“[W]e can foresee instances when the market
    value of the property would not adequately reflect the victim’s loss or when the
    consideration of the percentage of depreciation would be inequitable . . . .
    Therefore, we hold that 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.” (footnotes omitted)).
    7
    the vehicle and $250 for the owner’s travel expenses.” 32 This amount of
    restitution was based solely on the victim’s testimony:
    At the restitution hearing, the owner testified that the auto at
    issue was a 1979 Ford Fairmount; had a book value of $1650
    in 1985 when it was purchased for $1530; was repaired
    shortly before the theft and was in good operating condition;
    was stolen 14 months after purchase; and was valued at zero
    after the theft because it had been completely burned. The
    owner further testified that she did not know the mileage of
    the car at the time it was stolen, and that she had incurred
    expenses of $250 in securing alternative transportation. 33
    On appeal, the First District Court of Appeal of Florida reversed the trial
    court’s award of restitution, holding that the State had failed to establish
    the fair market value of the stolen vehicle at the time of the theft because
    the State presented no evidence regarding the percentage of depreciation
    for the vehicle. 34
    The Supreme Court of Florida reversed the First District Court, holding
    that the amount of restitution ordered by the trial court was supported by
    competent, substantial evidence. 35 Specifically, the court stated that
    because the victim testified to the “purchase price of the car, the book
    value at the time of purchase, the repairs made to the car, and the general
    condition of the car[,] . . . the amount of the restitution order was
    supported by the evidence.” 36 Thus, in Hawthorne, although there was no
    precise measurement of the victim’s loss, and the victim did not testify to
    all of the fair market value factors, based on the evidence presented, the
    court found that $1500 was a “fair amount” to compensate the victim for
    the car and to further the purposes of restitution. 37
    III.   METHODS AND PROBLEMS OF PROOF
    Despite the laudable efforts made by the Hawthorne court to limit the
    inequitable results that can undoubtedly occur when the State is required
    to establish precise measurements of loss, the requirements currently
    32 
    Id.
     at 331–32.
    33 
    Id. at 331
    .
    34 
    Id.
     at 332 (citing Hawthorne v. State, 
    558 So. 2d 156
    , 157 (Fla. Dist. Ct. App.
    1990)).
    35 Id. at 333.
    36 Id.
    37 See Hawthorne, 
    573 So. 2d at 333
    .
    8
    imposed by Florida law often make it extremely difficult, if not practically
    impossible, for the State to prove the victim’s loss. 38 Regardless of which
    measurement of value is used, the methods available to the State for
    establishing the value of the victim’s property in a restitution hearing are
    limited.   Moreover, as discussed below, each approach encounters
    problems due to the Florida Evidence Code. 39
    A. Fair Market Value
    1. Direct Evidence
    If the State seeks to establish fair market value via direct testimony, it
    can hire an expert witness to testify concerning the value of the property.
    However, hiring an expert witness to testify to fair market value involves
    considerable time and expense. 40 In addition, when property is stolen or
    lost and the victim has little information regarding the date of purchase,
    original price, or other details of the property—such as when the victim
    receives the property as a gift—the expert will have a difficult time
    establishing his or her competency and reliability to opine as to the
    property’s value, as required by section 90.702, Florida Statutes. 41 In
    such circumstances, the expert must accept the victim’s description of the
    property and speculate that a similar item has a certain value. 42 However,
    Florida courts have found that such speculative expert testimony is
    insufficient to establish fair market value. 43
    38 See, e.g., Phillips v. State, 
    141 So. 3d 702
    , 705 (Fla. Dist. Ct. App. 2014) (per
    curiam) (“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.”).
    39 See infra note 48 and accompanying text.
    
    40 Phillips, 141
     So. 3d at 706.
    41 Id.; see FLA. STAT. § 90.702 (2014) (“[A] witness qualified as an expert by
    knowledge, skill, experience, training, or education may testify about it in the
    form of an opinion or otherwise, if: (1) The testimony is based upon sufficient
    facts or data; (2) The testimony is the product of reliable principles and methods;
    and (3) The witness has applied the principles and methods reliably to the facts
    of the case.”).
    
    42 Phillips, 141
     So. 3d at 706.
    43 Id.; see, e.g., D.E.M. v. State, 
    109 So. 3d 1229
    , 1232 (Fla. Dist. Ct. App. 2013)
    (“In the instant case, the victim testified that an appraiser gave him a
    ‘guesstimated value’ of $20,000 or $30,000 for the entire coin collection, from
    which the victim came up with the $20,000 figure. The record contains no
    supporting documentation or other predicate for this speculative opinion of the
    value of the lost coin collection. A mere estimate of value, without any evidentiary
    9
    Another way for the State to establish fair market value via direct
    evidence is to present the testimony of the victim. As a practical matter,
    the victim is often the State’s best (if not only) witness. In Hawthorne, the
    court noted that “an owner of property is generally qualified to testify as to
    the fair market value of his property,” whether or not the owner is qualified
    as an expert. 44 This statement presumes that the owner has familiarity
    with the characteristics of the property, knowledge of its uses and
    purposes, and experience in dealing with it. 45 Yet, that presumption is a
    “fragile” one. 46 If it is not shown that the owner has knowledge of the
    property’s fair market value, Florida courts routinely hold that the victim’s
    mere opinion testimony of the value of his or her property is insufficient to
    establish the amount of restitution. 47 Thus, unless the victim deals in the
    type of goods lost, stolen, or damaged, the victim is unlikely to be
    sufficiently qualified to provide the fair market value of his or her property.
    Of course, the cases in which a burglar takes art from the home of an art
    basis, is insufficient to prove an amount for restitution purposes.” (citation
    omitted)); see also FLA. STAT. § 90.705(2) (2014) (providing that if the defendant
    “establishes prima facie evidence that the expert does not have a sufficient basis
    for the opinion, the opinions and inferences of the expert are inadmissible unless
    the party offering the testimony establishes the underlying facts or data”).
    44 State v. Hawthorne, 
    573 So. 2d 330
    , 333 n.6 (Fla. 1991).
    45 Sanchez v. State, 
    101 So. 3d 1283
    , 1286 (Fla. Dist. Ct. App. 2012) (stating that
    “an owner, though presumed competent to testify to the value of stolen property,
    must demonstrate personal knowledge of the characteristics of the stolen
    property, such as the quality, cost, and condition of the property”); Craig v. Craig,
    
    982 So. 2d 724
    , 729 (Fla. Dist. Ct. App. 2008) (quoting Sun Bank/N. Fla., N.A.
    v. Edmunds, 
    624 So. 2d 753
    , 756 (Fla. Dist. Ct. App. 1993)).
    46 See Sanchez, 
    101 So. 3d at 1286
     (“The competence presumed of an owner is
    fragile, and where the owner shows a lack of familiarity with the stolen property,
    the opinion evidence will not support a determination of value. . . . Rather than
    offering a bare opinion, an owner’s estimate of the value of stolen property must
    be supported by facts that show enough familiarity with the property to lend
    credence to the opinion.”); Craig, 
    982 So. 2d at 729
    .
    47 See, e.g., D.E.M., 
    109 So. 3d at 1232
    ; Fernandez v. State, 
    98 So. 3d 730
    , 731
    (Fla. Dist. Ct. App. 2012) (finding that “the victim’s opinion alone was insufficient
    to support the amount awarded”); Bennett v. State, 
    944 So. 2d 524
    , 526 (Fla.
    Dist. Ct. App. 2006) (“A victim’s testimony, without documentation, is not enough
    to support an award of restitution.” (citing State v. Schuette, 
    782 So. 2d 935
    ,
    937 (Fla. Dist. Ct. App. 2001))); see also 1 CHARLES W. EHRHARDT, EHRHARDT’S
    FLORIDA EVIDENCE § 701.1, at 713 (2013 ed.) (“An owner can testify to the value
    of his or her property although the witness is not qualified as an expert. Most
    decisions require the owner to have adequate knowledge upon which to base the
    opinion. Usually, mere ownership of property, however, does not automatically
    qualify an owner to testify as to the property’s value.”).
    10
    appraiser, an arsonist burns down the house of a realtor, or a robber takes
    a vehicle from a used-car salesperson are undeniably rare.
    Even when the victim makes a good-faith effort to learn the fair market
    value of his or her property prior to testifying, the victim’s opinion may still
    be inadmissible due to the rules of evidence. 48 For example, at least one
    Florida court has noted that sometimes it is “practically impossible for the
    victim to establish the restitution amount without relying on hearsay
    evidence.” 49 In theory, at least at its origination, a victim’s personal
    knowledge of the value of his or her property is usually based on some
    form of hearsay, such as a receipt,50 an appraisal or estimate, 51 or the
    price in a store catalog or on a store website. 52 However, because there is
    no statutory exception to the general exclusion of hearsay in restitution
    proceedings, 53 Florida courts have unanimously held that if the defense
    properly objects, hearsay evidence is generally inadmissible to determine
    the amount of restitution. 54 Thus, because the owner must provide some
    48 See, e.g., Phillips, 141 So. 3d at 705; see also infra note 54 and accompanying
    text; see generally EHRHARDT, supra note 47, at 707.
    
    49 Phillips, 141
     So. 3d at 705.
    50 Twilegar v. State, 
    42 So. 3d 177
    , 199 (Fla. 2010) (stating that a receipt is
    hearsay if “admitted for the truth of the matters asserted (the dates of the
    purchases, the amounts, the locations, and whether the purchases were made in
    cash)”).
    51 Leatherwood v. State, 
    108 So. 3d 1154
    , 1154–55 (Fla. Dist. Ct. App. 2013)
    (holding that “an appraisal letter from a jeweler to establish the value of the stolen
    jewelry” was hearsay and was insufficient to establish the amount of restitution
    unless properly qualified as a business record); T.J.N. v. State, 
    977 So. 2d 770
    ,
    773 (Fla. Dist. Ct. App. 2008) (“When testimony concerning the estimated cost of
    repairs to damaged property is ‘offered in evidence to prove the truth of the matter
    asserted,’ it is ‘hearsay’ unless ‘made by the declarant while testifying at the trial
    or hearing.’”); Butler v. State, 
    970 So. 2d 919
    , 921 (Fla. Dist. Ct. App. 2007)
    (“Because the written estimate was inadmissible hearsay evidence, we hold that
    the trial court erred in admitting the estimate and basing the value of the exterior
    door solely on this evidence.”).
    52 See Phillips, 141 So. 3d at 705 (“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.”); Gonzalez v. State, 
    40 So. 3d 86
    , 89 (Fla.
    Dist. Ct. App. 2010) (“Catalog prices alone are insufficient to establish a sufficient
    predicate.”); Ricci v. State, 
    550 So. 2d 34
    , 36 (Fla. Dist. Ct. App. 1989) (“[T]he
    price on the page from the jewelry catalog is inadmissible hearsay.”).
    53 See FLA. STAT. § 90.802 (2014) (“Except as provided by statute, hearsay
    evidence is inadmissible.”).
    54 See, e.g., T.J.N., 
    977 So. 2d at 773
     (“Hearsay evidence may not be used to
    determine the amount of restitution when there is a proper objection by the
    11
    predicate for the valuation he or she offers, 55 and hearsay evidence is an
    insufficient basis for the owner’s opinion in Florida, 56 many victims will
    not be sufficiently qualified to opine as to their property’s value.
    The general exclusion of hearsay does not mean that hearsay evidence
    is never admissible in a restitution hearing, however. Even when the
    defendant objects, if the hearsay evidence meets an exception to the
    general exclusion rule and has “some minimal indicia of reliability,” the
    hearsay evidence is likely admissible. 57 For example, “[w]ritten opinions
    defense to the hearsay evidence.”); Smith v. State, 
    941 So. 2d 479
    , 480 (Fla. Dist.
    Ct. App. 2006) (“We reverse and remand for a new restitution hearing because
    the State’s evidence was improperly based on hearsay.”); Johnson v. State, 
    856 So. 2d 1085
    , 1087 (Fla. Dist. Ct. App. 2003) (noting that the testimony used to
    support the restitution award was improper, in part, because it was based on
    hearsay); Herrington v. State, 
    823 So. 2d 286
    , 286 (Fla. Dist. Ct. App. 2002)
    (stating that the trial court erred in setting the amount of restitution based on
    hearsay evidence to which the defendant properly objected); Rae v. State, 
    638 So. 2d 597
    , 598 n.1 (Fla. Dist. Ct. App. 1994) (“The trial court erroneously believed
    hearsay evidence was admissible in a restitution hearing. The general rule is that
    hearsay testimony is not admissible in a restitution hearing unless defense
    counsel fails to properly object to the evidence.”). The requirement of an objection
    by the defense is more of a preservation of error requirement than an additional
    requirement to the general rule excluding hearsay. See Molter v. State, 
    892 So. 2d 1115
    , 1117 (Fla. Dist. Ct. App. 2004) (stating that the defendant “waived the
    hearsay objection by failing to raise it” (emphasis added)).
    55 D.E.M. v. State, 
    109 So. 3d 1229
    , 1232 (Fla. Dist. Ct. App. 2013) (stating that
    “the victim must have ‘a sufficient predicate’ on which to base an opinion
    regarding the value of the items taken”); Fino v. Nodine, 
    646 So. 2d 746
    , 748–49
    (Fla. Dist. Ct. App. 1994) (“Before lay opinion testimony can be properly admitted,
    a predicate must be laid in which the witness testifies as to the facts or
    perceptions upon which the opinion is based.” (citation omitted)).
    56 See generally EHRHARDT, supra note 47, at 707 (“Lay opinion based on hearsay
    evidence is not admissible.”).
    57 See Box v. State, 
    993 So. 2d 135
    , 139 (Fla. Dist. Ct. App. 2008); accord McKown
    v. State, 
    46 So. 3d 174
    , 175 (Fla. Dist. Ct. App. 2010). To the extent that the
    “minimal indicia of reliability” requirement has been interpreted by some courts
    as a “relaxed evidentiary standard in restitution hearings,” State v. Davis, 
    133 So. 3d 1101
    , 1106 n.6 (Fla. Dist. Ct. App. 2014), these courts are mistaken. It is
    in fact an additional requirement to the admission of hearsay at sentencing
    originally created by federal courts to safeguard defendants’ right to due process
    because the Confrontation Clause does not apply at sentencing. See Box, 
    993 So. 2d at 139
     (“We acknowledge that despite the fact that Crawford does not
    apply to restitution hearings, the State is still not permitted to admit any and all
    hearsay. Rather, the trial court may only allow hearsay having some minimal
    indicia of reliability to be injected into the sentencing proceeding.” (citing United
    States v. Littlesun, 
    444 F.3d 1196
    , 1199, 1200 (9th Cir. 2006))). It should also
    12
    or estimates may qualify as a business record exception to the hearsay
    rule under section 90.803(6), Florida Statutes . . . .” 58 But for a written
    opinion or estimate to meet the business record exception, the production
    of estimates must be a regularly conducted business activity, and the State
    must either call a witness to lay the foundational requirements of section
    90.803(6) or establish the foundation by certification or declaration.59
    Thus, because written opinions and estimates are unlikely to be self-
    authenticating, as noted above, the State must incur the additional time
    and expense of producing an additional witness to testify concerning the
    value of the victim’s property, and even then, the witness may not be
    sufficiently qualified or have enough information to form a reliable basis
    on which to opine. 60 Indeed, Florida courts routinely reverse trial courts’
    restitution awards because the State’s evidence failed to comply with the
    foundational requirements of section 90.803(6). 61
    be noted that, in Box, the hearsay at issue was a “self-authenticating public
    record[]” and thus did not require an analysis of its admissibility under the
    Florida Evidence Code. Id. at 136; see FLA. STAT. § 90.803(8) (2014) (providing
    that public records and reports are admissible hearsay “unless the sources of
    information or other circumstances show their lack of trustworthiness”).
    58 Butler v. State, 
    970 So. 2d 919
    , 920 (Fla. Dist. Ct. App. 2007).
    59 
    Id.
     at 920–21.
    60 See supra notes 40–43 and accompanying text.
    61 See, e.g., Leatherwood v. State, 
    108 So. 3d 1154
    , 1154–55 (Fla. Dist. Ct. App.
    2013) (“Over Leatherwood’s objections, the State sought to introduce an appraisal
    letter from a jeweler to establish the value of the stolen jewelry. However, the
    State failed to properly qualify the letter as a business record pursuant to section
    90.803(6) and section 90.902(11), Florida Statutes (2012).”); McKown, 
    46 So. 3d at 175
     (“While the victim had her bank statements with her in court, a predicate
    was not laid for their authenticity or reliability . . . . Without laying that
    foundation, the evidence is inadmissible hearsay.”); Moore v. State, 
    47 So. 3d 387
    , 388 (Fla. Dist. Ct. App. 2010) (reversing the trial court’s restitution order
    where the victim “provided testimony regarding the prices she paid for the items
    she purchased, estimates on the items she received as gifts, and a business card
    on which an employee of a jewelry store had listed the values of the pieces of
    jewelry she purchased from that store”); T.J.N. v. State, 
    977 So. 2d 770
    , 773 (Fla.
    Dist. Ct. App. 2008) (reversing the trial court’s restitution award where the “State
    presented the testimony of the insurance adjustor regarding the estimated cost
    of repairs to the damage on the right side of the truck,” and “the insurance
    adjustor revealed that he was basing his testimony on an estimate he had
    received from an auto body shop”); House v. State, 
    614 So. 2d 677
    , 677 (Fla. Dist.
    Ct. App. 1993) (reversing the trial court’s restitution order because “[m]uch of the
    documentary evidence on which the state relied was subject to the hearsay rule
    and failed to meet the strict requirements for admissibility under the ‘business
    records’ exception, on which the state relied”).
    13
    2. Indirect Evidence
    To establish fair market value indirectly, the State must present
    evidence of each 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.” 62 However, this
    approach undoubtedly requires the testimony of the victim, another
    witness, or both, 63 and thus encounters the same evidentiary
    requirements mentioned above. 64 For example, if the victim received the
    property by gift or inheritance, as is often the case with jewelry, the victim
    may not be able to testify to the original market cost without speculating
    or relying on hearsay. 65 In such circumstances, even if an appraiser is
    hired, he or she will not be able to opine as to the item’s original market
    cost without knowing the details of the item. 66 Furthermore, as in
    Hawthorne, many victims will have a difficult time providing the
    percentage of their property’s depreciation because such knowledge is
    typically outside the scope of most laypeople’s experience. 67 Yet, if the
    State fails to prove with specificity the percentage of depreciation and the
    trial court makes a good-faith effort to depreciate the item, the appellate
    court will reverse the restitution award because it is error for the court to
    “arbitrarily” depreciate an item. 68
    62 State v. Hawthorne, 
    573 So. 2d 330
    , 332 (Fla. 1991).
    63 The victim will often be the only witness who can testify to the manner in which
    the property was used and the general condition and quality of the property, for
    example.
    64 See supra Part III.A.1.
    65 See Moore, 
    47 So. 3d at 388
     (“The victim’s testimony regarding what the jewelry
    store’s employee told her regarding the estimated value of the unrecovered jewelry
    was improperly admitted hearsay. Additionally, the victim’s testimony regarding
    the items she received as gifts was also insufficient to establish the items’ values
    because the victim did not provide testimony of her own knowledge or opinion
    regarding the values.” (citation omitted)); Peters v. State, 
    555 So. 2d 450
    , 451
    (Fla. Dist. Ct. App. 1990) (“Absent a sufficient predicate showing a basis for such
    an opinion, the mere opinion of the victims as to the value of their lost property,
    as here, is insufficient to establish that value. Even less is it sufficient when,
    again as here, the victims’ opinions to a large extent were ‘estimates.’”); Abbott v.
    State, 
    543 So. 2d 411
    , 412 (Fla. Dist. Ct. App. 1989) (reversing the trial court’s
    restitution order where “[t]he witness’ estimated figure was arrived at by
    considering the cost to replace the jewelry, relying on purchase receipts, a partial
    appraisal, magazines, and recent purchases of gold,” and where “she conceded
    her lack of knowledge of current market value”).
    66 See supra notes 41–43 and accompanying text.
    67 See Hawthorne, 
    573 So. 2d at 332
    .
    68 Thompson v. State, 
    68 So. 3d 425
    , 427 (Fla. Dist. Ct. App. 2011) (“Application
    of such an arbitrary percentage of depreciation, without an explanation or record
    14
    B. “Fair Amount” Value
    “Fair amount” value is a more relaxed standard for measuring the
    victim’s loss because it allows the court to consider “any appropriate
    factor” in determining the amount of restitution to award. 69 However, even
    when the trial court uses the “fair amount” standard to determine the
    victim’s loss, the rules of evidence still apply. 70 Consequently, the court’s
    consideration of any appropriate factor is limited by what evidence the
    State can present in accordance with the rules.
    Moreover, these cases are rare because, as the court noted in
    Hawthorne, “in most instances the victim’s loss and the fair market value
    of the property at the time of the offense will be the same.” 71 Consequently,
    the State must prove fair market value in the majority of cases.72
    Therefore, more often than not, the State is faced with the dilemma of
    either spending considerable time and expense to prove the value of
    something that was unjustly taken from the victim or allowing the victim
    to walk away empty-handed for a second time. 73
    support, was an abuse of discretion.”); Kiefer v. State, 
    909 So. 2d 572
    , 574 (Fla.
    Dist. Ct. App. 2005) (stating “there must be sufficient evidence in the record to
    support application of a depreciation rate”).
    69 See Glaubius v. State, 
    688 So. 2d 913
    , 915 (Fla. 1997) (stating that “the trial
    court has discretion to take into account any appropriate factor in arriving at a
    fair amount which will adequately compensate a victim for his or her loss and
    further the purposes of restitution”).
    70 See State v. Davis, 
    133 So. 3d 1101
    , 1106 n.6 (Fla. Dist. Ct. App. 2014)
    (“Although federal law explicitly provides that the federal rules of evidence do not
    apply at sentencing proceedings, the Florida Evidence Code contains no such
    parallel provision.” (citation omitted)).
    71 Hawthorne, 
    573 So. 2d at 333
    .
    72 See 
    id.
     (“Where it is determined that a restitution amount equal to fair market
    value adequately compensates the victim or otherwise serves the purposes of
    restitution, we agree with the court below that the value should be established
    either through direct testimony or through evidence of the four factors
    announced in Negron.” (footnote omitted)); Fletcher v. State, 
    800 So. 2d 309
    , 310
    (Fla. Dist. Ct. App. 2001) (“Although courts are not bound to utilize the fair
    market value method of valuation and may exercise such discretion as is required
    to further the purposes of restitution, fair market value is to be used where it
    would adequately compensate the victim. Absent evidence that the item taken
    was a family heirloom or a new automobile, for which fair market value would
    not adequately compensate the victim, fair market value is the valuation method
    to be used.” (citation omitted)).
    73 See supra Part III.A.
    15
    IV.    THE FOURTH DISTRICT COURT OF APPEAL’S PROPOSAL
    Unfortunately, when the State cannot prove the amount of a victim’s
    loss, it causes unjust results that conflict with the purposes of restitution
    proceedings. For example, in Phillips v. State, the defendant stole several
    items of jewelry from the victim. 74 However, because the victim did not
    purchase many of the items, she did not have “first-hand knowledge of the
    [jewelry’s] purchase date, original value, or quality.” 75 As a result, to
    determine the fair market value of her jewelry, the victim conducted online
    research, located three or four pieces that were similar, and averaged their
    prices. 76 Following a restitution hearing in which she testified to the
    average prices of all of her stolen jewelry, the trial court ordered the
    defendant to pay restitution to the victim in the amount of $20,511, the
    total of her averages. 77
    On appeal, the Fourth District Court of Appeal of Florida (“Fourth DCA”)
    reversed and remanded for a new evidentiary hearing, finding that as the
    law currently exists, “the victim’s reliance on hearsay evidence from
    websites was insufficient to establish the restitution amount.” 78 But in
    doing so, the court acknowledged that establishing the restitution amount
    without relying on hearsay was “practically impossible” and that reversal
    “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” on remand. 79
    In addition, the court recognized that other Florida courts recently
    reversed restitution awards, leaving “wholly innocent person[s] . . . with a
    more difficult, if not impossible, path to recover their stolen items’ value.”80
    Accordingly, the Fourth DCA recommended that the Florida Legislature
    revisit section 775.089 and “consider providing trial courts with wider
    discretion in setting the restitution amount.” 81 Specifically, the court
    recommended adding the following language 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
    74   Phillips v. State, 
    141 So. 3d 702
    , 703 (Fla. Dist. Ct. App. 2014) (per curiam).
    75   
    Id. at 705
    .
    76   
    Id. at 703
    .
    77   
    Id.
     at 704–05.
    78   
    Id. at 705
    .
    79   
    Id.
    80   Phillips, 141
     So. 3d at 706.
    81   
    Id.
    16
    as required to further the purposes of restitution, including consideration
    of hearsay.” 82
    When broken down, the Fourth DCA’s recommendation has three
    components. First, it explicitly states that the court is not required to use
    fair market value to measure the victim’s loss. 83 Second, it provides the
    court with discretion necessary “to further the purposes of restitution” in
    determining restitution amounts. 84 Third, it permits the use of hearsay
    evidence in restitution proceedings. 85
    A. Advantages
    From a public policy standpoint, there are significant advantages and
    only minor disadvantages to adopting the Fourth DCA’s more relaxed
    framework to measuring and proving the amount of the victim’s loss in a
    restitution hearing. One advantage is that it would alleviate onerous
    requirements of proof in restitution hearings. Importantly, restitution is a
    post-adjudication sentencing proceeding. 86 Therefore, the defendant’s
    guilt has already been stipulated to or determined beyond a reasonable
    doubt. In adopting section 775.089, it is unlikely that the Florida
    Legislature intended to turn sentencing proceedings into “complicated,
    prolonged trials of the normal civil variety.” 87     Instead, restitution
    proceedings should be “expedient and reasonable, with uncertainties
    resolved with a view toward achieving fairness to the victim.” 88 By giving
    82 
    Id.
     In Schenk v. State, a case similar to Phillips, the Fifth District Court of
    Appeal of Florida subsequently joined the Fourth DCA’s recommendation.
    Schenk v. State, 
    150 So. 3d 275
    , 276 (Fla. Dist. Ct. App. 2014).
    
    83 Phillips, 141
     So. 3d at 706–07.
    84 
    Id.
    85 
    Id.
    86 See White v. State, 
    21 So. 3d 77
    , 79 (Fla. Dist. Ct. App. 2009) (“A restitution
    hearing is part of sentencing and requires the presence of counsel.” (citing
    Moment v. State, 
    645 So. 2d 502
    , 503 (Fla. Dist. Ct. App. 1994))); Kittelson v.
    State, 
    980 So. 2d 533
    , 535 (Fla. Dist. Ct. App. 2008) (stating that “[r]estitution is
    a mandated part of sentencing”).
    87 Cf. United States v. Gordon, 
    393 F.3d 1044
    , 1060 (9th Cir. 2004) (Fernandez,
    J., concurring and dissenting); Dolan v. United States, 
    560 U.S. 605
    , 613 (2010)
    (stating that a federal restitution “statute seeks speed primarily to help the
    victims of crime and only secondarily to help the defendant.”); United States v.
    Faxon, 
    689 F. Supp. 2d 1344
    , 1356 (S.D. Fla. 2010) (stating that restitution “is
    not a civil matter even though restitution resembles a judgment for the benefit of
    a particular victim”).
    88 Gordon, 
    393 F.3d at 1048
     (majority opinion); see also United States v.
    Balentine, 
    569 F.3d 801
    , 804 (8th Cir. 2009) (stating that “the procedural
    17
    the trial court broader discretion in determining restitution amounts, and
    by allowing hearsay evidence to prove the amount of loss sustained by the
    victim, the Fourth DCA’s proposal will save the State, the courts, and the
    victim considerable time and expense at sentencing.
    Furthermore, while victims of crime may still pursue a damages award
    in a separate, civil lawsuit, 89 the Florida Legislature specifically adopted
    the restitution statute for the benefit of crime victims. 90 Restitution is
    “intended to provide an additional alternative to reimburse a crime victim,
    over and above traditional remedies like a civil lawsuit.”91 However,
    holding the State to the same requirements of those in a full-fledged civil
    lawsuit undermines the primary purpose of restitution because it makes
    it less likely that the victim will be compensated for their loss. 92 As one
    Florida judge explained, “the goal of the criminal justice system should be
    to strive to allow full compensation to victims—not to make them victims
    twice.” 93 Thus, adopting the Fourth DCA’s recommendation would not
    only save considerable time and money, it would also limit unjust results
    by better serving the primary purpose of the restitution statute. 94
    requirements of [restitution statutes] are intended to protect victims, ‘not the
    victimizers.’” (quoting United States v. Grimes, 
    173 F.3d 634
    , 639 (7th Cir.
    1999))); Dohrmann v. United States, 
    442 F.3d 1279
    , 1281 (11th Cir. 2006)
    (holding that “Apprendi does not apply to a restitution order”); cf. Norman v.
    State, 
    468 So. 2d 1063
    , 1065–66 (Fla. Dist. Ct. App. 1985) (Nimmons, J.,
    concurring and dissenting) (“The same rigidities in proof of value which are
    required of the state in the trial of criminal cases involving value as an essential
    element of the crime should not, in my view, always be imposed in the
    determination of an appropriate amount of restitution.”).
    89 FLA. STAT. § 775.089(8) (2014) (“An order of restitution hereunder will not bar
    any subsequent civil remedy or recovery, but the amount of such restitution shall
    be set off against any subsequent independent civil recovery.”).
    90 State v. Hitchmon, 
    678 So. 2d 460
    , 462 (Fla. Dist. Ct. App. 1996).
    91 
    Id.
     (citing Spivey v. State, 
    531 So. 2d 965
    , 967 (Fla. 1988)).
    92 See Paroline v. United States, 
    134 S. Ct. 1710
    , 1724 (2014) (“Aside from the
    manifest procedural differences between criminal sentencing and civil tort
    lawsuits, restitution serves purposes that differ from (though they overlap with)
    the purposes of tort law. Legal fictions developed in the law of torts cannot be
    imported into criminal restitution and applied to their utmost limits without due
    consideration of these differences.” (citation omitted)); supra Part III.
    93 Thompson v. State, 
    68 So. 3d 425
    , 427 (Fla. Dist. Ct. App. 2011) (Polen, J.,
    concurring).
    94 See Santana v. State, 
    795 So. 2d 1112
    , 1113 (Fla. Dist. Ct. App. 2001) (“The
    primary objectives of restitution awards pursuant to section 775.089 are to give
    the criminal defendant an opportunity to make amends and to make the victim
    of a crime whole, at least to the extent it is possible to do so.”).
    18
    Adopting the Fourth DCA’s suggestion would also give the trial court
    the discretion it needs to establish a restitution amount that adequately
    instills upon the defendant the consequences of his or her actions.95
    Mandatory restitution is an important aspect of sentencing defendants, in
    part, because it “impress[es] upon offenders that their conduct produces
    concrete and devastating harms for real, identifiable victims.” 96 Moreover,
    the secondary purpose of restitution is “to serve the rehabilitative,
    deterrent, and retributive goals of the criminal justice system.” 97 The
    Supreme Court of Florida previously recognized that “[t]he trial court is
    best able to determine how imposing restitution may best serve those goals
    in each case.” 98
    However, the current state of the law severely limits the trial court’s
    ability to determine an appropriate restitution amount at sentencing.
    Florida Rule of Criminal Procedure 3.720(b) provides that “[t]he court shall
    entertain submissions and evidence by the parties that are relevant to the
    sentence.” 99 To the extent that restitution is an important aspect of
    sentencing, 100 hearsay evidence is often relevant to the defendant’s
    sentence because, as mentioned above, it is helpful, and sometimes
    necessary, to determine the amount of loss sustained by the victim as a
    result of the defendant’s criminal offense. 101 Section 775.089 in fact
    requires the court to consider the amount of the victim’s loss in
    determining whether to order any restitution at all. 102 Nonetheless,
    95  Cf. Paroline, 
    134 S. Ct. at 1729
     (“District courts routinely exercise wide
    discretion both in sentencing as a general matter and more specifically in
    fashioning restitution orders.”); 
    id. at 1734
     (Roberts, C.J., dissenting) (“It is true
    that district courts exercise substantial discretion in awarding restitution and
    imposing sentences in general.”).
    96 
    Id. at 1727
     (majority opinion).
    97 Glaubius v. State, 
    688 So. 2d 913
    , 915 (Fla. 1997).
    98 Spivey v. State, 
    531 So. 2d 965
    , 967 (Fla. 1988); see also Noel v. State, 
    127 So. 3d 769
    , 774, 778 (Fla. Dist. Ct. App. 2013) (recognizing that “restitution to victims
    is a central ‘penological interest’ of Florida criminal law,” and concluding that it
    was not a denial of due process for the trial court to give the defendant “the
    opportunity to mitigate ‘the severity of an otherwise appropriate sentence’ by
    paying restitution to the victims in an amount he indicated he could afford”),
    review granted, 
    153 So. 3d 907
     (Fla. 2014) (unpublished table decision).
    99 FLA. R. CRIM. P. 3.720(b); see also State v. Davis, 
    133 So. 3d 1101
    , 1106 n.6
    (Fla. Dist. Ct. App. 2014) (stating that rule 3.720(b) “does not define the term
    ‘submissions’ and neither expressly permits nor prohibits the admission of
    hearsay evidence”).
    100 See supra notes 96–97 and accompanying text.
    101 See supra notes 49–52, 55 and accompanying text.
    102 FLA. STAT. § 775.089(6)(a) (2014).
    19
    although hearsay evidence is admissible in other sentencing proceedings
    in Florida, such as probation revocation hearings 103 and capital
    sentencing proceedings, 104 hearsay is still inadmissible in restitution
    hearings. 105 As a result, when the State cannot prove the amount of the
    victim’s loss without relying on hearsay, the court cannot order the
    defendant to pay restitution, and the defendant may not appreciate the
    full effect of his illegal acts.
    Relatedly, once the court has determined that monetary restitution is
    appropriate in an individual case, it should have broad discretion in
    fashioning a restitution order. 106 In Hawthorne, the court held that the
    trial court is not tied to fair market value as the sole standard for
    measuring the victim’s loss, but rather, it “may exercise such discretion
    as required to further the purposes of restitution.” 107 However, the court
    limited its holding to instances when fair market value is an inappropriate
    measure of the victim’s loss. 108 Therefore, in most instances, the trial
    court must use fair market value to determine the amount of the victim’s
    loss, which means that the State must present a witness with personal
    knowledge of the fair market value of the victim’s loss, or the State must
    present evidence of all four fair market value factors. 109
    While the holding in Hawthorne certainly improved          the law governing
    restitution proceedings, it failed to address instances       when fair market
    value may adequately reflect the victim’s loss, but the       State is unable to
    meet the demanding criteria to prove fair market               value. In such
    103 Russell v. State, 
    982 So. 2d 642
    , 646 (Fla. 2008) (“It is undisputed that
    hearsay evidence is admissible in a probation revocation hearing to prove a
    violation of probation.”).
    104 FLA. STAT. § 921.141(1) (2014) (“Any such evidence which the court deems to
    have probative value may be received, regardless of its admissibility under the
    exclusionary rules of evidence, provided the defendant is accorded a fair
    opportunity to rebut any hearsay statements.”).
    105 See sources cited supra notes 53–54.
    106 Paroline v. United States, 
    134 S. Ct. 1710
    , 1727–28 (2014) (quoting 
    18 U.S.C. § 3664
    (a)); see source cited supra note 95.
    107 State v. Hawthorne, 
    573 So. 2d 330
    , 333 (Fla. 1991).
    108 See 
    id.
     (“Where it is determined that a restitution amount equal to fair market
    value adequately compensates the victim or otherwise serves the purposes of
    restitution, we agree with the court below that the value should be established
    either through direct testimony or through evidence of the four factors
    announced in Negron.” (footnote omitted)).
    109 See 
    id.
     (“We recognize that in most instances the victim’s loss and the fair
    market value of the property at the time of the offense will be the same.”); supra
    Part III.A.
    20
    circumstances, the victim is left without recourse, and the defendant
    receives a windfall for his actions. Rather than give the court broad
    discretion in rare instances when fair market value is inappropriate to
    measure the victim’s loss, the court should have discretion to take into
    account any appropriate factor in all instances. 110 The Fourth DCA’s
    recommendation simply adopts the approach taken in Hawthorne, but
    permits it in all circumstances. This is a reasonable approach considering
    the fact that case law subsequent to Hawthorne suggests that the
    defendant can easily defeat the State’s presentation of evidence concerning
    fair market value by objecting to hearsay or speculation, or by noting that
    not all of the factors pertaining to fair market value have been proved by
    competent, substantial evidence. 111
    B. Disadvantages
    A disadvantage of the Fourth DCA’s recommendation is that it failed to
    provide an alternative measure of the victim’s loss. Although the Fourth
    DCA reiterated the holding in Hawthorne that the trial court is not tied to
    “fair market value as the sole standard for determining restitution
    amounts,” 112 it did not say what standard the court should use when fair
    market value is not used.        Nevertheless, case law subsequent to
    110 See Paroline, 
    134 S. Ct. at 1728
     (“There are a variety of factors district courts
    might consider in determining a proper amount of restitution, and it is neither
    necessary nor appropriate to prescribe a precise algorithm for determining the
    proper restitution amount at this point in the law’s development. Doing so would
    unduly constrain the decisionmakers closest to the facts of any given case.”);
    United States v. Boccagna, 
    450 F.3d 107
    , 116 (2d Cir. 2006) (“Notwithstanding
    the general reliability of fair market value as a measure of property value, in some
    circumstances other measures of value may more accurately serve the statutory
    purpose to ensure a crime victim’s recovery of the full amount of his loss.”).
    111 See, e.g., Hunter v. State, 
    48 So. 3d 174
    , 176 (Fla. Dist. Ct. App. 2010) (“The
    trial court erred in establishing the amount of restitution because the victim
    could not identify all of the items that had been taken, relied on hearsay evidence
    to establish value, and failed to take into account depreciation.”); Mansingh v.
    State, 
    588 So. 2d 636
    , 638 (Fla. Dist. Ct. App. 1991) (reversing the trial court’s
    restitution order “because the state presented evidence on only one of the
    [Negron] four factors”); see also Thompson v. State, 
    68 So. 3d 425
    , 427 (Fla. Dist.
    Ct. App. 2011) (Polen, J., concurring) (stating that “objections of hearsay as to
    sources of information as to value [and the] absence of receipts for items bought
    years earlier” “make it more difficult for a victim to prove the ‘fair market value’
    of their stolen property”); cf. Matthew C. Lucas, Valuing the Marital Home, 88,
    no.4 FLA. B.J., 8, 9 (2014) (stating that “[d]ivining the most probable price for a
    property’s fair market value poses an interesting challenge in the law” in part
    because “the analysis inherently requires elements of speculation”).
    112 Hawthorne, 
    573 So. 2d at 333
    .
    21
    Hawthorne established that “fair amount” value is the appropriate,
    alternative measure to fair market value. 113 As with replacement value
    and retail value, “fair amount” value may ultimately be the same as fair
    market value. 114 Yet, the method of proof of “fair amount” value is much
    more conducive to accomplishing the purposes of restitution because it is
    intentionally broad and allows the court to consider any appropriate factor
    in determining the amount of restitution to award. 115 Thus, the fact that
    the Fourth DCA did not provide an alternative measure of value should
    not prevent adoption of the Fourth DCA’s proposal; “fair amount” value is
    implicitly the measure of value under the Fourth DCA’s proposal.
    A related disadvantage of the Fourth DCA’s proposal is that without a
    definite standard to guide the court’s determination of the victim’s loss,
    the trial court may appear to have too much discretion, which may result
    in a windfall for the victim. However, at least in theft cases, it is highly
    unlikely that a trial court’s restitution award would exceed any possible
    judgment in a civil action because, in a civil action, the victim may claim
    treble damages and attorneys’ fees in addition to the property loss.116
    Moreover, safeguards in the law already protect against trial courts
    abusing their discretion. For example, even when the court uses “fair
    amount” value to determine the victim’s loss, the trial court’s restitution
    order must still be supported by competent, substantial evidence. 117 In
    addition, the trial court may only award restitution in an amount causally
    connected to the defendant’s crime. 118 Thus, even with more discretion,
    courts would not be able to award restitution in an arbitrary amount that
    favors the victim at the expense of the defendant’s right to due process. 119
    Moreover, while the purpose of restitution is not to create a windfall for
    the victim, 120 it is certainly not to create one for the defendant either. In
    113 See Glaubius v. State, 
    688 So. 2d 913
    , 915 (Fla. 1997).
    114 See supra notes 23–24, 26 and accompanying text.
    115 See Glaubius, 
    688 So. 2d at 915
    ; text accompanying supra note 31.
    Importantly, section 775.089, Florida Statutes, is not subject to a void-for-
    vagueness challenge because it does not penalize any conduct. See State v.
    Brake, 
    796 So. 2d 522
    , 527 (Fla. 2001) (“In order for a criminal statute to
    withstand a void-for-vagueness challenge, the language of the statute must
    provide adequate notice of the conduct it prohibits when measured by common
    understanding and practice.”).
    116 See S.M. v. State, 
    159 So. 3d 966
    , 968 n.1 (Fla. Dist. Ct. App. 2015) (citing §
    772.11(1), Fla. Stat. (2012)).
    117 See supra note 18 and accompanying text.
    118 See supra note 11 and accompanying text.
    119 See supra note 17 and accompanying text.
    120 Glaubius, 
    688 So. 2d at 916
    .
    22
    other contexts, Florida laws are much more forgiving where one party is
    the cause of a lack of evidence favorable to the other party. For example,
    section 90.804, Florida Statutes, provides that hearsay evidence is
    admissible if the opposing party “wrongfully caused, or acquiesced in
    wrongfully causing, the declarant’s unavailability as a witness, and did so
    intending that result.” 121 Case law provides that criminal charges must
    be dismissed if the prosecution destroys exculpatory evidence in bad
    faith. 122 There are even independent causes of action, both civil and
    criminal, for intentionally destroying evidence that hinders the opposing
    party’s ability to prove its case. 123 The principle that supports all of these
    laws is that the party responsible for the intentional destruction of
    evidence should not benefit from its bad-faith actions, and the party
    relying on the evidence should not be penalized for the bad-faith acts of
    another. Similarly, in the context of restitution proceedings, the State has
    proven or the defendant concedes that he has wrongfully caused loss or
    damage to property that could otherwise be used to determine its value.
    Thus, in light of the aforementioned principle, the law should be less
    concerned with providing windfalls to victims, and more tolerant of victims’
    inability to testify to the amount of restitution when their inability is due
    largely to no fault of their own. The Fourth DCA’s suggestion simply
    acknowledges this principle by alleviating strict requirements of proof in a
    restitution hearing.
    Another potential disadvantage of the Fourth DCA’s suggestion
    concerns the admission of hearsay. When hearsay is permissible as the
    121 FLA. STAT. § 90.804(f) (2014).
    122  State v. Milo, 
    596 So. 2d 722
    , 723 (Fla. Dist. Ct. App. 1992) (“Willful,
    intentional destruction of evidence requires sanctions. Bad faith destruction of
    evidence requires dismissal of the charges.” (citing Louissaint v. State, 
    576 So. 2d 316
     (Fla. Dist. Ct. App. 1990))).
    123 See FLA. STAT. § 918.13 (2014) (providing that it is a third-degree felony for
    any “person, knowing that a criminal trial or proceeding or an investigation by a
    duly constituted prosecuting authority, law enforcement agency, grand jury or
    legislative committee of this state is pending or is about to be instituted, [to] . . .
    [a]lter, destroy, conceal, or remove any record, document, or thing with the
    purpose to impair its verity or availability in such proceeding or investigation”);
    Royal & Sunalliance v. Lauderdale Marine Ctr., 
    877 So. 2d 843
    , 845 (Fla. Dist.
    Ct. App. 2004) (“The essential elements of a [civil] spoliation of evidence claim
    are: ‘(1) existence of a potential civil action, (2) a legal or contractual duty to
    preserve evidence which is relevant to the potential civil action, (3) destruction of
    that evidence, (4) significant impairment in the ability to prove the lawsuit, (5) a
    causal relationship between the evidence destruction and the inability to prove
    the lawsuit, and (6) damages.’” (quoting Hagopian v. Publix Supermarkets, Inc.,
    
    788 So. 2d 1088
    , 1091 (Fla. Dist. Ct. App. 2001))).
    23
    only evidence offered to support the trial court’s award of restitution, the
    result may be questionable. For example, whether due to poor memory,
    improper incentive, or other reasons, victims may exaggerate the true
    value of their property. 124 The reliability of evidence is in fact the core
    concern underlying the general exclusion of hearsay evidence. 125
    Concern for the reliability of hearsay evidence should not prevent
    adoption of the Fourth DCA’s proposal, however, because Florida courts
    already require that for hearsay to be admissible, it must contain “some
    minimal indicia of reliability.” 126 In addition, not all hearsay is a verbal
    assertion by the witness. In many instances, the State offers documentary
    evidence of value, which is generally considered more reliable than oral
    hearsay, 127 and is verifiable by the defendant and the court, but the
    evidence is nevertheless turned away due to the general exclusion of
    hearsay in restitution proceedings. 128 In such circumstances, if the trial
    court finds the documentary evidence to be sufficiently reliable, it is
    unclear why the victim or the State is nonetheless required to incur the
    expense and inconvenience of presenting an additional witness to recount
    what is already stated in the document.
    A related disadvantage of allowing hearsay, including documentary
    hearsay, is that the defendant may not have the opportunity to cross-
    examine the declarant on matters such as the declarant’s qualifications
    124 Schering Corp. v. Pfizer Inc., 
    189 F.3d 218
    , 232 (2d Cir.), as amended on reh’g,
    (Sept. 29, 1999) (“The hearsay rule is generally said to exclude out-of-court
    statements offered for the truth of the matter asserted because there are four
    classes of risk peculiar to this kind of evidence: those of (1) insincerity, (2) faulty
    perception, (3) faulty memory and (4) faulty narration, each of which decreases
    the reliability of the inference from the statement made to the conclusion for
    which it is offered.” (citations omitted)).
    125 See id.; Lee v. Illinois, 
    476 U.S. 530
    , 543 (1986) (stating that hearsay evidence
    that “does not fall within ‘a firmly rooted hearsay exception’ . . . is thus
    presumptively unreliable”).
    126 Box v. State, 
    993 So. 2d 135
    , 139 (Fla. Dist. Ct. App. 2008); accord McKown
    v. State, 
    46 So. 3d 174
    , 175 (Fla. Dist. Ct. App. 2010).
    127 See United States v. Redd, 
    318 F.3d 778
    , 784 (8th Cir. 2003) (“Documentary
    hearsay evidence generally provides greater indicia of reliability than oral
    hearsay. This distinction is reflected in numerous long-standing exceptions to
    the hearsay rule.”).
    128 See, e.g., Butler v. State, 
    970 So. 2d 919
    , 921 (Fla. Dist. Ct. App. 2007)
    (“Because the written estimate was inadmissible hearsay evidence, we hold that
    the trial court erred in admitting the estimate and basing the value of the exterior
    door solely on this evidence.”).
    24
    and his or her methods or factors used to value the property. 129 However,
    this concern should also not prevent adoption of the Fourth DCA’s
    proposal for at least two reasons. First, at least one Florida court has
    previously concluded that the Sixth Amendment’s Confrontation Clause
    “does not apply in restitution hearings because restitution proceedings are
    an aspect of sentencing.” 130 Therefore, the defendant does not have a
    constitutional right to confront witnesses against him in a restitution
    hearing. 131
    Second, the trial court’s ability to discern truth from falsity and to
    assign weight to evidence in a restitution hearing should not be
    underestimated or substituted. For the same reason appellate courts defer
    to the trial court’s determinations of facts in general, the trial court’s
    decisions concerning the credibility of witnesses and the weight to give to
    evidence in restitution proceedings should not be second-guessed on
    appeal. 132 While sitting as trier of fact, the trial court is in the best position
    to evaluate the victim’s testimony or other evidence offered by the State.133
    129 See Hochstadt v. Sanctuary Homeowner’s Ass’n, Inc., 
    761 So. 2d 1163
    , 1165
    (Fla. Dist. Ct. App. 2000) (stating that “the opinion of the appraiser as a witness
    would be subject to cross-examination as to qualifications, as well as in other
    areas, and that safeguard alleviates the concerns we have about admitting only
    the records”); see also BLACK’S LAW DICTIONARY 838 (10th ed. 2014) (stating that
    “[t]he chief reasons for the [hearsay] rule are that out-of-court statements
    amounting to hearsay are not made under oath and are not subject to cross-
    examination”).
    130 Box v. State, 
    993 So. 2d 135
    , 139 (Fla. Dist. Ct. App. 2008). The court also
    reiterated that “the State is still not permitted to admit any and all hearsay” and
    that “the trial court may only allow hearsay having some minimal indicia of
    reliability.” 
    Id.
    131 
    Id.
    132 See Shaw v. Shaw, 
    334 So. 2d 13
    , 16 (Fla. 1976) (“It is clear that the function
    of the trial court is to evaluate and weigh the testimony and evidence based upon
    its observation of the bearing, demeanor and credibility of the witnesses
    appearing in the cause. It is not the function of the appellate court to substitute
    its judgment for that of the trial court through re-evaluation of the testimony and
    evidence from the record on appeal before it. The test . . . is whether the judgment
    of the trial court is supported by competent evidence. Subject to the appellate
    court’s right to reject ‘inherently incredible and improbable testimony or
    evidence,’ it is not the prerogative of an appellate court, upon a de novo
    consideration of the record, to substitute its judgment for that of the trial court.”
    (footnote omitted)).
    133 See Stephens v. State, 
    748 So. 2d 1028
    , 1034 (Fla. 1999) (“We recognize and
    honor the trial court’s superior vantage point in assessing the credibility of
    witnesses and in making findings of fact. The deference that appellate courts
    afford findings of fact based on competent, substantial evidence is an important
    25
    Moreover, even when hearsay is admissible in a restitution proceeding, the
    defendant may cross-examine any witness that does testify and may
    introduce contrary evidence—including reliable hearsay evidence—in his
    or her defense. 134    Thus, with these considerations in mind, the
    admissibility of hearsay in a restitution proceeding should not prevent the
    adoption of the Fourth DCA’s recommendation.
    ****
    CONCLUSION
    Due to the unjust results that can occur when the court has limited
    discretion and when the State must meet onerous requirements to prove
    the amount of loss sustained by the victim of a crime, the Florida
    Legislature should revise section 775.089 to better conform to the
    purposes of restitution proceedings, which are both compensatory and
    punitive. Recognizing that many victims cannot testify to the fair market
    value of their property, the Fourth DCA recommended providing the trial
    court with broader discretion to further the purposes of restitution. In
    addition, the Fourth DCA’s proposal does not require the court to use fair
    market value in determining the amount of the victim’s loss and expressly
    permits the admission of hearsay evidence in restitution proceedings. As
    such, the Fourth DCA’s proposal offers a great starting point in revising
    section 775.089 because it relaxes both the measurement of value and the
    method of proof in restitution proceedings. However, the Fourth DCA’s
    proposal does not explicitly address important concerns, such as the
    appropriate measure of value, the lack of reliability of hearsay evidence,
    and the defendant’s right to due process. Thus, in light of the concerns
    mentioned above, the Florida Legislature should adopt the Fourth DCA’s
    proposal, but with the following three caveats that incorporate aspects of
    the federal standard. 141
    principle of appellate review.” (citations omitted)); see, e.g., Henry v. State, 
    840 So. 2d 1170
    , 1171 (Fla. Dist. Ct. App. 2003) (stating that the trial court concluded
    that the defendant’s testimony concerning the amount of money she
    misappropriated “lacked credibility”).
    134 See Del Valle v. State, 
    80 So. 3d 999
    , 1020 (Fla. 2011) (Lewis, J., dissenting)
    (“A defendant has the ability to defeat the imposition of a restitution order, or the
    amount, if he or she successfully contests the validity of any damage or loss
    allegedly caused to a victim by the defendant’s crime.”); Faurisma v. State, 
    61 So. 3d 497
    , 497–98 (Fla. Dist. Ct. App. 2011 ) (per curiam) (reversing the trial court’s
    restitution order because the defendant was not given an opportunity to be
    heard).
    141 As with any change in statutory law, there may be unanticipated problems
    that arise in the future. However, because the recommendation mirrors the
    26
    First, because the Fourth DCA’s proposal does not provide an
    alternative measure to fair market value, the statute should explain that
    the court may use “fair amount” value to determine the amount of the
    victim’s loss in all circumstances. 142 Second, although some Florida
    courts already provide that hearsay must contain “some minimal indicia
    of reliability” to be admissible in a restitution hearing, it would be wise to
    include this language explicitly in the statute as well. 143 Third, because
    the Confrontation Clause does not apply at sentencing, the Legislature
    should consider providing the defendant with an opportunity to rebut or
    refute any hearsay evidence that is offered by the State, as is already done
    in Florida capital sentencing proceedings. 144
    In accordance with the Fourth DCA’s recommendation, and the caveats
    mentioned above, section 775.089(7) should ultimately read as follows,
    with the suggested changes in italics:
    Any dispute as to the proper amount or type of restitution
    shall be resolved by the court by the preponderance of the
    evidence. In determining restitution amounts, the court may
    exercise discretion as required to further the purposes of
    restitution. The court may consider any appropriate factor in
    awarding a fair amount that adequately compensates the
    victim. 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
    federal standard, there is an entire body of federal case law that will aid in
    addressing these problems.
    142 For purposes of this Article, “fair amount” value and a “reasonable
    approximation” of value are treated as the same, at least in terms of monetary
    value measurements. See supra note 137.
    143 This does not mean that the hearsay evidence must meet an established
    exception. See supra note 139. “To show that the evidence lacks ‘minimal indicia
    of reliability’ a defendant must establish ‘(1) that the challenged evidence is
    materially false, and (2) that it actually served as a basis for the [restitution
    order].’” Bourne, 130 F.3d at 1447 (quoting Hairston, 888 F.2d at 1353).
    “Whether hearsay evidence is reliable, and thus admissible, is a determination
    left to the discretion of the sentencing judge.” United States v. Gerstein, 
    104 F.3d 973
    , 978 (7th Cir. 1997).
    144 See supra notes 57, 104, 130, 139.
    27
    deems appropriate is upon the party designated by the court
    as justice requires.      Hearsay evidence is admissible in
    restitution proceedings if the hearsay evidence is found by the
    court to have a minimal indicia of reliability. The defendant
    may refute hearsay evidence offered by the state attorney.
    In addition, because the above proposal permits the court to use discretion
    “to further the purposes of restitution,” but the purposes of restitution do
    not appear anywhere in section 775.089, the Florida Legislature should
    explicitly include the purposes of restitution at the forefront of the statute.
    With the implementation of these suggested changes, the purposes of
    section 775.089 are more likely to be accomplished, which means that
    defendants who cause loss to innocent victims are less likely to receive a
    windfall for their criminal actions and that victims of crime are more likely
    to be compensated for their losses.
    *        *         *
    Not final until disposition of timely filed motion for rehearing.
    28