LINDA KORICA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Linda Korica appealed a restitution order imposed after pleading no contest to burglary and grand theft. The court reversed and remanded because the State's evidence of the stolen items' value was based entirely on inadmissible hearsay testimony from the victim's daughter who lacked personal knowledge of the items' worth.
The testimony was inadmissible hearsay and insufficient to establish value for restitution. The court also noted that restitution should be based on fair market value (considering depreciation and condition, not just purchase price) and that the victim's insurance status should be considered.
[1] Hearsay testimony, lacking personal knowledge, is incompetent to establish the value of stolen items for restitution purposes.
[2] Restitution should generally be based on the fair market value of the property, considering its condition and depreciation, unless such amount will not fully compensate t…
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Join FLexlaw to unlock all legal intelligence“We agree that Amy Boyd's testimony was hearsay and was not competent to establish the value of the stolen items for purposes of restitution.”
Core holding that the trial court erred in admitting the daughter's hearsay testimony about item values.
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Join FLexlaw to unlock all legal intelligenceKorica was evicted from Lá-veme Boyd's St. Petersburg home sometime between July and October 1999, and allegedly committed a burglary and grand theft …
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NORTHCUTT, Acting Chief Judge.
Linda Korica challenges the amount of restitution imposed after she pleaded no contest to burglary and grand theft. We reverse because the State’s evidence regarding the value of the items taken was based entirely on hearsay.
The burglary and grand theft occurred at the St. Petersburg home of Lá-veme Boyd sometime between July and October 1999, when Korica was evicted from the premises. At the restitution hearing, the State presented only one witness, Amy Boyd, the daughter of the victim. She had no personal knowledge of the worth of any of the missing items. Her testimony concerning value was based on telephone conversations with her mother and representatives of the stores where her mother had purchased the goods. She did not produce any documents to support her testimony. Korica objected that Amy Boyd’s testimony was hearsay, but her objection was overruled.
We agree that Amy Boyd’s testimony was hearsay and was not competent to establish the value of the stolen items for purposes of restitution. See Moore v. State, 694 So. 2d 836 (Fla. 2d DCA 1997) (holding that testimony based on information received from non-testifying accountants and on documents the accountants examined but which were not introduced at the hearing was inadmissible to prove value); Branker v. State, 650 So. 2d 195 (Fla. 4th DCA 1995) (explaining that when witness had no personal knowledge about missing property, estimates obtained from experts about the property’s value were hearsay and could not be used to establish the value for purposes of restitution). We reverse and remand for a new restitution hearing. Moore; Williams v. State, 645 So. 2d 594 (Fla. 2d DCA 1994).
Because the court will conduct a new hearing, we also point out several other problems. For one thing, the court valued the majority of the missing items based on their purchase prices. Generally,
restitution should be based on the fair market value of the property, unless that amount will not fully compensate the victim. State v. Hawthorne, 573 So. 2d 330 (Fla.1991). Fair market value takes into consideration not only the purchase price, but the manner in which the item was used, its condition and depreciation. Id. at 332. Also, Amy Boyd did not know whether her mother had filed an insurance claim for the theft or whether she had received any insurance proceeds that could affect the amount of restitution owed. If, at the new hearing, the State can present a witness with personal knowledge of the value of the items taken, these points should also be addressed. Finally, Korica maintained that many of the missing items either belonged to her or were not in the home when she began living there. We will not address this argument because of our resolution of this case on the hearsay issue, but Korica is free to raise it again at the new hearing.
Reversed and remanded.
CASANUEVA and DAVIS, JJ., Concur.
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K.W. v. State, 983 So. 2d 713 (Fla. 2d DCA 2008)…852 So. 2d 226 (Fla.2003), and Butterworth v. Fluellen, 389 So. 2d 968 (Fla.1980)). “Fair market value takes into consideration not only the purchase price, but the manner in which the item was used, its condition and depreciation.” Korica v. State, 791 So. 2d 543, 544 (Fla. 2d DCA 2001). At K.W.’s adjudicatory hearing, the victim testified that K.W. stole the Nextel cell phone in July 2006. The victim’s mother testified that she paid $450 for the phone in May 2006. She testified that when the phone was stol…
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Aboyoun v. State, 842 So. 2d 238 (Fla. 2d DCA 2003)…they told him how much they paid for these items. This was the only evidence offered to establish their value. The State properly concedes that this hearsay testimony was insufficient to establish value for restitution purposes. See Korica v. State, 791 So. 2d 543 (Fla. 2d DCA 2001). Therefore, a new restitution hearing is appropriate to determine the fair market value of the necklaces. See id. at 544; Fletcher v. State, 800 So. 2d 309, 311 (Fla. 2d DCA 2001). With respect to the other gold jewelry, the vict…
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Immon Nabil Ibrahim v. State, 866 So. 2d 749 (Fla. 5th DCA 2004)…orrect measure of damages. J.F.H. v. State, 849 So. 2d 1151, 1152 (Fla. 5th DCA 2003). Fan-market value takes into consideration not only the purchase price, but the manner in which the item was used, its condition and depreciation. Korica v. State, 791 So. 2d 543, 544 (Fla. 2d DCA 2001). Fair market value of the property should be used for restitution purposes, unless that amount will not fully compensate the victim. State [*751] v. Hawthorne, 573 So. 2d 330 (Fla.1991).1 Additionally, the State concedes that…
Previewing 3 of 10 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)
- Moore v. State, 694 So. 2d 836 (Fla. 2d DCA 1997)
- Williams v. State, 645 So. 2d 594 (Fla. 2d DCA 1994)
- Loraine Branker v. State, 650 So. 2d 195 (Fla. 4th DCA 1995)