Duncan v. State

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
MICHAEL LEWIS DUNCAN, )
)
Appellant, )
)
v. ) Case No. 2D15-3232
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed June 1, 2016.
Appeal from the Circuit Court for Polk
County; Glenn T. Shelby, Judge.
Howard L. Dimmig, II, Public Defender, and
Maureen E. Surber, Assistant Public
Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Marilyn Muir Beccue,
Assistant Attorney General, Tampa, for
Appellee.
BLACK, Judge.
Michael Duncan challenges the final judgment of restitution entered
following his no contest plea to burglary of a dwelling and grand theft. Because the
restitution amount was not supported by competent, substantial evidence, we reverse.
At the restitution hearing, the victim testified that a television, two antique
rifles, 400 to 500 gemstones, and $22 were stolen from her home. To establish the
value of the television, the victim testified that she purchased it one or two years ago for
$1300 and that it was in good condition. The victim purchased a replacement television
for $500, but unlike the stolen television, it was not a "smart" television. The first
antique rifle was the victim's mother's "back in the '50's." It was in working condition.
The victim was unable to give an opinion as to its current value but stated that she had
been offered $400 or $500 for it. The second rifle was also an antique and previously
owned by the victim's father. It was in working condition. The victim was also unable to
give an opinion as to the second rifle's current value, providing only that "it was probably
older than the '50's."
The victim inherited the gemstones from her brother who was an antique
collector; they were real gemstones and not costume jewelry. A picture of some of the
victim's gemstones was admitted into evidence; the victim testified that she had taken
pictures of the other gemstones but was unable to find them. Over objection, several
pages from the catalog from which the brother purchased the gemstones were also
admitted into evidence as a composite exhibit. The catalog pages contained pictures
and prices of various gemstones; the court admitted the catalog pages that served as
examples of the gemstones owned by and stolen from the victim. The victim did not
know exactly how many gemstones she had, exactly which gemstones she had, or the
exact size of each gemstone but testified that the gemstones she identified in the
catalog were a "fair and accurate representation of the gemstones that [she] owned."
The victim could not compare her gemstones to those in the catalog other than to say
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that "[t]hey're pretty well the same thing." The victim also testified that she was present
when her brother purchased some of the gemstones but she could not remember which
ones. Based on the prices in the catalog, the victim estimated that the stolen
gemstones were worth approximately $8000. Finally, the victim testified that $22 was
taken.
The State argued that $10,300 in restitution was appropriate: $1300 for
the television, $8000 for the gemstones, $22 for the cash, and "the approximate four
hundred to five hundred dollars of [sic] each of the rifles that were taken." After taking
the matter under advisement, the trial court imposed restitution in the amount of
$10,300. Though Duncan does not take issue with the $22 awarded for the cash, he
asserts that the State's evidence to support the remaining components of the restitution
award was insufficient.
"Although a trial judge has discretion in determining the amount of
restitution, the restitution award must be proven by competent, substantial evidence and
the amount of the award must be established by the greater weight of the evidence."
Danzey v. State, 41 Fla. L. Weekly D342, D342 (Fla. 2d DCA Feb. 5, 2016); accord
Allen v. State, 162 So. 3d 1055, 1056 (Fla. 2d DCA 2015). Generally the amount of
restitution is based on the fair market value of the property, and that value is determined
by the "purchase price, the manner in which the property was used, its condition, and
depreciation." Fernandez v. State, 98 So. 3d 730, 731-32 (Fla. 2d DCA 2012) (quoting
Aboyoun v. State, 842 So. 2d 238, 240 (Fla. 2d DCA 2003)). However, there are some
circumstances—"such as when the property is a family heirloom or is subject to rapid
depreciation"—when the "fair market value would not adequately reflect the victim's
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loss." Id. at 732 (citing State v. Hawthorne, 573 So. 2d 330, 333 nn.4-5 (Fla. 1991)).
"Under these circumstances, 'a court is not tied to fair market value as the sole standard
for determining restitution amounts' . . . ." Id. (quoting Hawthorne, 573 So. 2d at 333).
"[A] property owner is generally qualified to testify regarding the fair
market value of his or her property." Allen, 162 So. 3d at 1056 (alteration in original)
(quoting Aboyoun, 842 So. 2d at 240). And "[t]his court has held that a victim's
testimony regarding the amount actually paid for an item, receipts indicating the cost of
the item, the amount that another paid for the item in the victim's presence, and the
condition of the stolen item 'are competent evidence which will establish value.' "
Danzey, 41 Fla. L. Weekly at D342 (quoting Allen, 162 So. 3d at 1056). Here the victim
testified based on her own personal knowledge regarding the purchase price and
condition of the television. As such, the trial court did not abuse its discretion in setting
the restitution amount for the television. See Moore v. State, 47 So. 3d 387, 388 (Fla.
2d DCA 2010) ("[T]he trial court did not abuse its discretion in setting restitution
amounts for those items for which the victim testified as to the amounts she actually
paid, provided store receipts, testified regarding her own opinions of the amounts she
and others paid in her presence, and testified regarding the condition of the items.");
Aboyoun, 842 So. 2d at 240 (holding that the victim's testimony regarding the purchase
price and condition of the stolen rings based on his personal knowledge was sufficient
for restitution purposes).
As to the antique rifles, however, the State failed to present sufficient
evidence to establish value for restitution purposes. The victim was asked how much
each rifle was worth, to which she replied, "I couldn't tell you." As to the first rifle, the
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victim stated only that she had been offered $400 to $500 for it without further
elucidation. This is insufficient. See D.E.M. v. State, 109 So. 3d 1229, 1232 (Fla. 1st
DCA 2013) ("[T]he victim must have 'a sufficient predicate' on which to base an opinion
regarding the value of the items taken." (quoting Gonzalez v. State, 40 So. 3d 86, 89
(Fla. 4th DCA 2010))). And to the extent that the court based the restitution award for
the rifles on the prosecutor's assertion that they were each worth $400 or $500, this was
error as the "prosecutor's assertions were not competent, substantial evidence." D.C. v.
State, 109 So. 3d 1264, 1266 (Fla. 2d DCA 2013).
As to the gemstones, Duncan argues that the State failed to present
competent, substantial evidence of the value of the gemstones because the victim's
estimate was based on hearsay—the catalog listing various gemstones and their prices.
See Allen, 162 So. 3d at 1056; Phillips v. State, 141 So. 3d 702, 705 (Fla. 4th DCA
2014). But Duncan did not object to the trial court's admission of the catalog based on
hearsay, despite his assertion to the contrary in the initial brief. And "[h]earsay
evidence may be used to determine the amount of restitution if there is no objection to
the evidence." Allen, 162 So. 3d at 1057 (quoting Williams v. Sate, 850 So. 2d 627, 628
(Fla. 2d DCA 2003)).
Duncan did, however, object to the catalog's admission because the
victim's testimony did not establish that the victim owned all of the gemstones that she
identified in the catalog to establish an estimate of value. In that regard, Duncan argues
that the victim did not know exactly how many gemstones she had, exactly which
gemstones she had, or the size or clarity of each gemstone; the gemstones were never
appraised and were not covered by insurance. As such, Duncan contends that the
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victim's testimony as to value was insufficient because it was based on speculation and
guesswork, and it lacked a sufficient predicate.
The general rule that the victim is qualified to testify regarding the fair
market value of his or her stolen property is subject to evidentiary requirements.
D.E.M., 109 So. 3d at 1232. "Guesstimates and speculative testimony are inappropriate
evidence on which to base an award of restitution." Id. (quoting Bennett v. State, 944
So. 2d 524, 526 (Fla. 4th DCA 2006)); accord Fernandez, 98 So. 3d at 732. The victim
was only able to approximate the number of gemstones, give examples of some of the
types of gemstones she had, and speculate as to other types she may have had; the
victim could not otherwise provide any specific information, such as the quantity of each
type of gemstone, the size of each gemstone, the cut of each gemstone, or the clarity of
each gemstone. The picture admitted into evidence depicted some but not all of the
actual gemstones the victim had inherited from her brother. And while the victim
testified that she was present when her brother purchased some of the gemstones from
the catalog, she could not remember which ones because her brother purchased the
gemstones over nineteen years ago.
"[B]asic fairness seems to dictate that the owner should be required, at a
minimum, to identify what property has been lost so that the trier of fact may reasonably
determine the value of the stolen items." Hunter v. State, 48 So. 3d 174, 175 (Fla. 4th
DCA 2010) (alteration in original) (quoting Fisher v. State, 722 So. 2d 873, 874 (Fla. 1st
DCA 1998)). In Fisher, just as in this case, the victim was unable to identify all of the
property that was stolen. See Fisher, 722 So. 2d at 874 (reversing the restitution order
because the victim was unable to identify all of the jewelry that was stolen); see also
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Gonzalez v. State, 948 So. 2d 892, 895 (Fla. 5th DCA 2007) (relying on Fisher and
reversing the restitution order because the victim "was unable to adequately identify and
value several of the stolen items[] and even admitted that she could not remember
everything that was stolen"). "Although the trial court is granted discretion in
determining a restitution amount to make the victim whole, here, there was no
competent, substantial evidence to support the trial court's award of restitution [for the
gemstones]." Gonzalez, 948 So. 2d at 895; see also J.L.C. v. State, No. 2D14-3241,
2016 WL 1366456, at *1 (Fla. 2d DCA Apr. 6, 2016) (reversing restitution order where
the victim's testimony regarding the value of the loose change in the stolen jug "was, at
best, an estimated guess"); Fernandez, 98 So. 3d at 732 (reversing restitution order
based on the victim's speculative testimony).
We agree with the State that the trial court was "not tied to fair market
value as the sole standard for determining restitution amounts" since the gemstones
and even the antique rifles could reasonably be viewed as family heirlooms. Molter v.
State, 892 So. 2d 1115, 1118-19 (Fla. 2d DCA 2004) (quoting Hawthorne, 573 So. 2d at
333, 333 n.4). Nonetheless, the restitution award still must be supported by competent,
substantial evidence.
Accordingly, we reverse the restitution order in part and remand for a new
restitution hearing to determine the value of the antique rifles and gemstones.1
1
Given the evidentiary standard in restitution proceedings and the fact that
a victim may not be aware of the documentation necessary to support his or her loss,
we again encourage the State to act more diligently in such matters and to prepare the
necessary evidence in advance of the restitution hearing so that the process is more
effective. See Walentukonis v. State, 932 So. 2d 1136, 1137-38 (Fla. 2d DCA 2006)
(Villanti, J., specially concurring).
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Reversed and remanded.
KELLY and MORRIS, JJ., Concur.
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