ANDREW SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that restitution for stolen property must be based on fair market value, not replacement cost, especially for an older item like a safe.
Andrew Smith pleaded guilty to grand theft after burglarizing a home and stealing a safe. The trial court ordered restitution exceeding $40,000, inclu…
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PER CURIAM.
Andrew Smith appeals the amount of restitution imposed on him after pleading guilty to grand theft. Smith and his co-defendants burglarized the victim’s home, stealing a safe containing valuables. After a hearing, the trial court ordered restitution in excess of $40,000 for the items taken.
We find merit only in Smith’s contention that the trial court imposed restitution for the safe based upon the replacement cost of a new and more secure safe. It is undisputed that the original safe cost only $350. There was no testimony as to the fair market value of the original safe at the time it was stolen.
Consistent with our holding in co-defendant Immon Nabil Ibrahim’s case, we reverse the ordered restitution for the stolen safe; fair market value, not replacement value is the correct measure of damages. See Ibrahim v. State, 866 So. 2d 749, 29 Fla. L. Weekly D410 (Fla. 5th DCA Feb.13, 2004).
We affirm the restitution order except as to the stolen safe and remand to allow the State to request a new restitution hearing to establish the fair market value of the safe, if it chooses. See J.F.H. v. State of Florida, 849 So. 2d 1151, 1152 (Fla. 5th DCA 2003). If the State does not request a new restitution hearing, the trial court shall reduce the amount of restitution by $1,007.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
PETERSON, PALMER and ORFINGER, JJ., concur.
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White v. State, 21 So. 3d 77 (Fla. 1st DCA 2009)…n the proceedings. Traylor, 596 So. 2d at 968; see Tubwell v. State, 886 So. 2d 433, 433 (Fla. 1st DCA 2004) (reversing for resentencing because the offer to provide appointed counsel was not renewed prior to the sentencing hearing); Moore v. State, 868 So. 2d 683, 684 (Fla. 5th DCA 2004) (reversing and remanding because the trial court did not offer an indigent defendant assistance of counsel at a restitution hearing). A restitution hearing is part of sentencing and requires the presence of counsel. Moment…
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Long v. State, 876 So. 2d 718 (Fla. 5th DCA 2004)…represented by counsel at the hearing. Restitution is part of sentencing. A criminal defendant is entitled have counsel representing him or her at sentencing, including that part of sentencing during which restitution is imposed. See Moore v. State, 868 So. 2d 683 (Fla. 5th DCA 2004); Moment v. State, 645 So. 2d 502 (Fla. 4th DCA 1994). Accordingly, the order must be reversed. [*719] Mr. Long also argues that the trial court lacked jurisdiction to impose the requirement of restitution against him. Given the p…
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Morgan v. State, 963 So. 2d 930 (Fla. 5th DCA 2007)…t sentencing proceedings. Carter v. State, 408 So. 2d 766 (Fla. 5th DCA 1982). Sentencing proceedings include hearings in which the restitution amount is to be determined. See Long v. State, 876 So. 2d [*931] 718 (Fla. 5th DCA 2004); Moore v. State, 868 So. 2d 683 (Fla. 5th DCA 2004). The State is commended for its proper concession of error. REVERSED and REMANDED. GRIFFIN, ORFINGER and EVANDER, JJ., concur.…
Authorities Cited
- Immon Nabil Ibrahim v. State, 866 So. 2d 749 (Fla. 5th DCA 2004)
- J.F.H. v. State, 849 So. 2d 1151 (Fla. 5th DCA 2003)