KAMAL PETERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Peters pleaded guilty to dealing in stolen property and was ordered to make restitution to burglary victims. The court reversed the restitution order because the state failed to establish the fair market value of stolen property, the evidence was insufficient to link Peters to the total losses, and there was no evidence regarding Peters's ability to pay the substantial restitution amount.
The restitution order was reversed because: (1) the state failed to establish the fair market value of stolen property as required by statute; (2) the evidence was insufficient to show Peters was criminally involved in the burglaries or to determine what proportion of losses were attributable to his offense; and (3) there was no evidence regarding Peters's ability to pay approximately $29,000 in restitution.
[1] A sentencing court may order a defendant to make restitution for damage or loss caused directly or indirectly by the defendant's offense.
[2] The state bears the burden of establishing victims' losses for restitution purposes.
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Join FLexlaw to unlock all legal intelligence“order the defendant to make restitution ... for damage or loss caused directly or indirectly by the defendant's offense”
Establishes the statutory requirement that restitution must be for losses caused directly or indirectly by the defendant's specific offense
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Join FLexlaw to unlock all legal intelligenceMatthew Mink committed burglaries and stole property that Peters fenced (jewelry items only). Mink and Peters had a three-year relationship where Mink…
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McNULTY, JOSEPH P., Associate Judge.
Appellant pleaded guilty to three counts of dealing in stolen property and was placed on probation, as a condition of which he agreed to make restitution to the three victims of the underlying burglaries. At an obviously abbreviated evidentiary hearing to determine the amounts of restitution, the trial court accepted each victim’s own assessment of his total losses in the burglaries, less any insurance recovery. The court then ordered restitution in the amounts of $10,325.00 to victim Pennington and $18,883.00 to victim Simpson. Appellant appeals from these findings but does not challenge the amount ordered paid to the third victim. We reverse.
Section 775.089(1)(a), Florida Statutes (Supp.1988), authorizes a sentencing court, after a hearing, to “... order the defendant to make restitution ... for damage or loss caused directly or indirectly by the defendant’s offense.” (Italics added.) Subsection (6) of that section instructs the court further to consider not only the amount of the victims’ losses but the ability of the defendant to pay. Subsection (7) places the burden of establishing victims’ losses on the state.
Here, to begin with, it appears that one Matthew Mink was the burglar in each of the underlying burglaries. He testified by deposition that he and appellant had an ongoing three year relationship. Mink randomly would burglarize houses without appellant’s specific knowledge, participation or input and steal as much of everything as he could carry; but appellant would fence only jewelry-type items. Mink further testified that in the instant cases he did not even offer all the items to appellant. We think this evidence is insufficient from which to “... determine the proportion of the total losses attributable to the [appellant’s] offense as ...” required by section 775.089(1)(a).
Notwithstanding, and apparently on a conspiracy or agency theory, the trial court found a “... sufficient nexus ...” in the “relationship” between Mink and appellant to justify assessment against appellant of restitution for the total of the victims’ burglary losses. In this respect this case is inapposite to Spivey v. State, 531 So. 2d 965 (Fla.1988), in which stipulated accomplices to a robbery, acting in concert, were held responsible jointly and severally for the victim’s losses. This case more closely resembles Cliburn v. State, 510 So. 2d 1155 (Fla. 3d DCA 1987), in which the court held that the defendant there could only be assessed restitution to the extent the evidence showed he was criminally involved in the burglary in that case, or to the extent he received unrecovered property stolen in the burglary. See also Jones v. State, 480 So. 2d 163 (Fla. 1st DCA 1985).
We return now to the amounts assessed here. We hold that the state failed in its burden to establish the fair market value of any of the property stolen as of the time of the theft, which is required. Abbott v. State, 543 So. 2d 411 (Fla. 1st DCA 1989). 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.”
Finally, we note that while the burden was on appellant to establish inability to pay the amounts assessed, see section 775.089(7), there was virtually no evidence below bearing on appellant’s ability to pay some $29,000.00 in restitution. A condition of probation, however, ought not be impossible of performance; and lest there be a likelihood of subsequent burdensome probation violation proceedings, a trial judge in the interest of judicial economy should have some feel as to whether a condition of probation can be met or is impossible.
In view of the foregoing, the order of restitution herein is reversed and the cause is remanded for further proceedings not inconsistent herewith.
DOWNEY and WALDEN, JJ., concur.
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Cited By (18 total)
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Soriano v. State, 968 So. 2d 112 (Fla. 4th DCA 2007)…lue not based upon the specific items stolen and their cost. The mere opinion of a victim as to the value of its stolen property is insufficient to establish that value, absent a sufficient predicate showing a basis for the opinion. Peters v. State, 555 So. 2d 450, 451 (Fla. 4th DCA 1990). Here, the loss prevention manager did not provide a basis for his opinion. Because the state produced no legally sufficient evidence to support the amount of restitution ordered, the trial court abused its discretion. We r…
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Williams v. State, 578 So. 2d 846 (Fla. 4th DCA 1991)…e presented on appellant’s ability to pay the amount. When restitution is made a condition of probation that appellant must perform, the trial judge should have some indication that it would not be impossible for appellant to do so. Peters v. State, 555 So. 2d 450 (Fla. 4th DCA 1990). With respect to the original sentencing hearing, we find no error in sentencing appellant where appellant was “present” by video means, since he specifically agreed in writing to the procedure and thus waived any right to be “p…
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Gonzalez v. State, 40 So. 3d 86 (Fla. 4th DCA 2010)…v. State, 968 So. 2d 112, 114 (Fla. 4th DCA 2007) (citing Rodriguez v. State, 956 So. 2d 1226, 1231 (Fla. 4th DCA 2007)). A victim must have a sufficient predicate upon which to base his or her opinion on the value of items stolen. Peters v. State, 555 So. 2d 450, 451 (Fla. 4th DCA 1990). Catalog prices alone are insufficient to establish a sufficient predicate. Fitzgerald v. State, 952 So. 2d 1250, 1251 (Fla. 4th DCA 2007). Second, a trial court is not limited to, but may rely on, fair market value in orde…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Spivey v. State, 531 So. 2d 965 (Fla. 1988)
- State v. Prusinsky, 543 So. 2d 411 (Fla. 4th DCA 1989)
- Cliburn v. State, 510 So. 2d 1155 (Fla. 3d DCA 1987)
- Jones v. State, 480 So. 2d 163 (Fla. 1st DCA 1985)