TERRENCE T. FISHER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Fisher was convicted of burglary and dealing in stolen property and challenged the restitution order requiring him to pay $4,614. The court reversed the portion of the restitution order relating to jewelry value because the victim's testimony lacked sufficient specificity regarding most items taken, violating the State's burden of proving the value of stolen property by a preponderance of the evidence.
The restitution order for jewelry is reversed and remanded for a new hearing because the State failed to meet its burden of proving the value of the unidentified jewelry by a preponderance of the evidence. The victim must identify the property lost so that the trier of fact may reasonably determine the value of stolen items.
[1] When the amount of restitution is disputed, the State bears the burden of proving the value of lost property by a preponderance of the evidence.
[2] A restitution order must be supported by specific evidence or testimony as to the nature and value of the items claimed to have been taken.
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Join FLexlaw to unlock all legal intelligence“When the amount of restitution is disputed, the State has the burden of proof at the restitution hearing, but is held only to a preponderance of the evidence standard.”
Establishes the evidentiary standard the State must meet in restitution cases.
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Join FLexlaw to unlock all legal intelligenceFisher was convicted of burglary and dealing in stolen property. At the restitution hearing, the victim testified that she lost a computer, jewelry, a…
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PER CURIAM.
Appellant Terrence E. Fisher was convicted of burglary and dealing in stolen property and appeals a portion of the order entered by the trial court that he pay restitution in the total amount of $4,614. He seeks review of only that part of the restitution order related to the value of jewelry he took during the burglary. We reverse and remand for a new restitution hearing only as to that part of the order. At the restitution hearing, the victim testified that she had lost a computer, some jewelry and some business records that she had to reconstruct. On direct examination, she testified that she valued her lost jewelry at $2714 and that her insurance company covered $1000 of this loss. On cross-examination, she testified that three containers of jewelry were taken but she could not describe many of the pieces that were lost because she did not have her insurance inventory sheet with her at the hearing. She was able only to give an estimated value of four pieces of jewelry which she described and valued at $510. Appellant argues that there was insufficient evidence of value of any more than the $510 to which the victim specifically testified during the hearing. We agree.
When the amount of restitution is disputed, the State has the burden of proof at the restitution hearing, but is held only to a preponderance of the evidence standard. § 775.089(7), Fla.Stat. (1997). In a case such as this, where some items of jewelry were identified and a value placed on them, where other items of jewelry were identified but no value placed on them, and where other jewelry was not identified at all, the State must produce some specific evidence or testimony as to the nature and value of the pieces claimed to have been taken.
While the owner of property is generally determined to be competent to testify as to the value of lost property, State v. Hawthorne, 573 So. 2d 330, 332 (Fla.1991), basic 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. In this case, the victim’s loss, save those items she specifically identified, could be characterized as “one quantity of jewelry, various pieces, worth $2,204.” More specific evidence was apparently available, which evidence could and should have been presented by the State. While there is some case law extant that would permit this court in its discretion to reduce the amount of restitution for the lost jewelry to the amount for which there was competent substantial evidence, see Moore v. State, 664 So. 2d 343 (Fla. 5th DCA 1995), we opt instead to reverse and remand so that a new restitution hearing regarding the value of the jewelry can be held. See Tullis v. State, 692 So. 2d 229 (Fla. 1st DCA 1997); Smith v. State, 651 So. 2d 1218, 1219 (Fla. 2d DCA 1995); C.S. v. State, 617 So. 2d 863 (Fla. 1st DCA 1993).
Reversed and remanded for further proceedings consistent with this opinion.
MINER, WEBSTER, JJ„ and SMITH, LARRY G., Senior Judge, concur.
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Soriano v. State, 968 So. 2d 112 (Fla. 4th DCA 2007)…1 (Fla. 4th DCA 2007). The state presented no evidence of the specific items taken or their value. At a minimum, owners of stolen property [*115] should be required to identify what items were stolen in order to obtain restitution. Fisher v. State, 722 So. 2d 873, 874 (Fla. 1st DCA 1998). Although some merchandise was visible in photographs the state never offered evidence of a list of what was stolen other than what was seen in the videos. The loss prevention manager admitted that he did not see all five sh…
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Hunter v. State, 48 So. 3d 174 (Fla. 4th DCA 2010)…been taken from her home. “[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.” Fisher v. State, 722 So. 2d 873, 874 (Fla. 1st DCA 1998). In Fisher, the court reversed a restitution award for stolen jewelry because the owner was unable [*176] to identify all the property she had lost. Id. While three containers of jewelry had been taken, the owner was able to…
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Santana v. State, 795 So. 2d 1112 (Fla. 5th DCA 2001)…e. § 775.089, Fla. Stat. (1999). The state attorney has the burden of proving the loss sustained by the victim by a preponderance of the evidence rather than to the exclusion of all reasonable doubt. § 775.089(7), Fla. Stat. (1999); Fisher v. State, 722 So. 2d 873 (Fla. 1st DCA 1998); J.O.S. v. State, 668 So. 2d 1082 (Fla. 1st DCA 1996), approved, 689 So. 2d 1061 (Fla.1997). The primary objectives of restitution awards pursuant to section 775.089 are to give the criminal defendant an opportunity to make amen…
Previewing 3 of 6 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)
- Smith v. State, 651 So. 2d 1218 (Fla. 2d DCA 1995)
- C.S. v. State, 617 So. 2d 863 (Fla. 1st DCA 1993)
- Moore v. State, 664 So. 2d 343 (Fla. 5th DCA 1995)
- Tullis v. State, 692 So. 2d 229 (Fla. 1st DCA 1997)