GEORGE DOMACETI, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed a restitution order requiring appellant to reimburse the victim for the original cost of stolen computers. Because technological advancements made replacement computers available at less than half the original cost, the court held that restitution should be limited to replacement value rather than original cost.
Restitution should be limited to the replacement value of identical stolen items where a ready market exists, not the original cost paid by the victim. Fair market value at the time of theft is the proper standard absent special circumstances showing original cost better serves the purpose of restitution.
[1] The amount of restitution should be established through evidence of fair market value at the time of the theft, absent circumstances showing fair market value does not ad…
[2] Fair market value for restitution purposes may be established through evidence of original cost, manner of use, general condition and quality, and percentage of depreciat…
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Join FLexlaw to unlock all legal intelligence“it is axiomatic that it is the state's burden to show the amount of loss sustained”
Establishes that the prosecution bears the burden of proving the amount of restitution owed
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Join FLexlaw to unlock all legal intelligenceAppellant Domaceti was convicted of theft of computers. At the restitution hearing, the victim testified to the original cost of the stolen computers …
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PER CURIAM.
We reverse the order of restitution requiring appellant to reimburse the victim the original cost of stolen computers. At the hearing the victim testified to their original cost and that the same computer could be purchased today for less than half of what the victim originally paid for it. Because of advancements in technology when the victim bought replacements, he purchased upgraded versions.
We adopt the reasoning of the First District in Mansingh v. State, 588 So. 2d 636 (Fla. 1st DCA 1991):
Turning next to the sufficiency of the evidence presented to prove the amount of restitution for the items found in appellant’s possession, it is axiomatic that it is the state’s burden to show the amount of loss sustained. § 775.089(7), Fla.Stat. (Supp.1988). A trial court is not tied to fair market value (FMV) as the sole standard for determining the amount of restitution, and may, in fact, exercise discretion in determining that amount. State v. Hawthorne, 573 So. 2d 330, 332-33 (Fla.1991). Nevertheless, absent circumstances tending to show that FMV does not adequately compensate the victim or otherwise serve the purpose of restitution, such as theft of a family heirloom or a new automobile, id. at 333 nn. 4-5, or theft of an older car that had been repaired shortly before the theft, as was the case in Hawthorne, the amount of restitution should be established through evidence of FMV at the time of the theft. Id. at 333. Fair market value may be established either through direct testimony or through production of evidence relating to all of the following four criteria: (1) the original cost, (2) the manner in which the items were used, (3) their general condition and quality, and (4) the percentage of depreciation. Id. at 332-33; Abbott v. State, 543 So. 2d 411, 412 (Fla. 1st DCA 1989).
588 So. 2d at 638.
Here, there was no evidence of the fair market value of a used computer of the type stolen, but the victim testified that replacement cost of the computer was now less than half of the original cost, given the technological advancements in new computers. Certainly where there is a ready market of identical items to the stolen item, restitution should be limited to its replacement.
Reversed and remanded for further proceedings.
HERSEY and WARNER, JJ., and WALDEN, JAMES H., Senior Judge, concur.
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Citator
Cited By (20 total)
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Thompson v. State, 68 So. 3d 425 (Fla. 4th DCA 2011)…sideration of fair market value, but [*427] “absent circumstances tending to show that [fair market value] does not adequately compensate the victim or otherwise serve the purpose of restitution,” fair market value should be used. Domaceti v. State, 616 So. 2d 1148, 1149 (Fla. 4th DCA 1993) (citation omitted). 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. See Gonzalez v. State, 40 So. 3d…
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Soriano v. State, 968 So. 2d 112 (Fla. 4th DCA 2007)…, the state presented legally insufficient proof for a $10,000 award of restitution. Generally, the amount of restitution is established through evidence of fair market value at the time of the theft. Hawthorne, 573 So. 2d at 333; Domaceti v. State, 616 So. 2d 1148, 1149 (Fla. 4th DCA 1993). “Fair market value may be established either through direct testimony or through production of evidence relating to all of the following four criteria: (1) the original cost, (2) the manner in which the items were used, (3…
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I.M. a child v. State, 917 So. 2d 927 (Fla. 1st DCA 2005)…eserved for our review. Unless “special circumstances” are shown, FMV (rather than replacement value) is the appropriate measure of damages in calculating restitution. See Walters v. State, 888 So. 2d 150, 151 (Fla. 5th DCA 2004); Domaceti v. State, 616 So. 2d 1148 (Fla. 4th DCA 1993) (stating that restitution amount should be established with evidence of FMV at time of theft, absent circumstances showing FMV would not adequately compensate victim or otherwise serve purpose of restitution); Hercule v. State, 6…
Previewing 3 of 20 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Hawthorne, 573 So. 2d 330 (Fla. 1991)
- Mansingh v. State, 588 So. 2d 636 (Fla. 1st DCA 1991)
- State v. Prusinsky, 543 So. 2d 411 (Fla. 4th DCA 1989)