I.M., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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I.M., a juvenile adjudicated delinquent for arson and burglary, appealed a restitution order on remand. The court affirmed the trial court's decision to impose restitution despite the child's current inability to pay, but reversed and remanded the determination of the fair market value amount because the testimony relied upon hearsay lacking personal knowledge.
The court held that testimony regarding fair market value must be based on personal knowledge and cannot rely on hearsay from vendors who do not testify. However, written vendor estimates may suffice if they qualify as business records or are uncontested. The court also held that a defendant's ability to pay is determined at the time restitution is enforced, not when it is imposed, so restitution may be deferred until the child's circumstances change.
[1] A victim's opinion of fair market value is sufficient to establish restitution, provided the victim has personal knowledge of the value and does not rely on hearsay.
[2] Testimony regarding the fair market value of damaged property is inadmissible when based on hearsay from vendors who do not testify.
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Join FLexlaw to unlock all legal intelligence“Although the victim/owner's opinion regarding the fair market value is sufficient to establish value, the victim/owner must have personal knowledge of value, and may not base his or her opinion upon hearsay”
Establishes the evidentiary standard that restitution testimony must be based on personal knowledge, not hearsay
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Join FLexlaw to unlock all legal intelligenceI.M. and friends set fire to a middle-school band room, destroying instruments, choir robes, risers, and other items. At the evidentiary hearing on re…
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PER CURIAM.
I.M. was adjudicated delinquent for committing arson and burglary based upon evidence that he and friends set fire to a middle-school band room. On appeal, this court affirmed the adjudication of delinquency and affirmed a portion of the restitution order, but reversed and remanded the remaining amount, because it represented replacement value rather than fair market value. I.M. v. State, 917 So. 2d 927, 934-35 (Fla. 1st DCA 2005).
At the evidentiary hearing on remand, the school’s Director of Facility Maintenance, Greg King, testified that he had contacted his vendors to determine the fair market value of the damaged or destroyed items, such as instruments, choir robes, risers, etc., yielding a total of $31,143. The court overruled I.M.’s objection that King’s testimony was based upon hearsay, which, by itself, was insufficient to establish the amount of restitution. This was error. Although the victim/owner’s opinion regarding the fair market value is sufficient to establish value, the victim/owner must have personal knowledge of value, and may not base his or her opinion upon hearsay; Greg King did not have personal knowledge of the value of the ruined items, but relied upon the opinions of his vendors, who did not testify. On remand, written estimates may suffice, so long as they satisfy the requirements of business records under section 90.803(6), Florida Statutes (2005), or are uncontested. See, e.g., B.L.N. v. State, 722 So. 2d 860 (Fla. 1st DCA 1998); C.S. v. State, 617 So. 2d 863 (Fla. 1st DCA 1993); Bonner v. State, 899 So. 2d 1212 (Fla. 2d DCA 2005); Davis v. State, 707 So. 2d 842 (Fla. 2d DCA 1998).
Also at the hearing below, the court deferred monthly payment of restitution until the child finishes school or turns 18. The court properly overruled LM.’s objection that restitution should not be imposed at all, because the child did not have the ability to pay. Under section 775.089(6), Florida Statutes (2005), the defendant’s ability to pay must be determined at the time the restitution order is being enforced, not when it is imposed. See Banks v. State, 732 So. 2d 1065 (Fla.1999).
AFFIRMED IN PART, REVERSED IN PART, and REMANDED for further proceedings consistent with this opinion.
BARFIELD, KAHN, and PADOVANO, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Phillips v. State, 141 So. 3d 702 (Fla. 4th DCA 2014)…esses, which courts have held cannot support the determination of a restitution amount. See, e.g., Gonzalez v. State, 40 So. 3d 86, 89 (Fla. 4th DCA 2010) (“Catalog prices alone are insufficient to establish a sufficient predicate.”); I.M. v. State, 958 So. 2d 1014, 1016 (Fla. 1st DCA 2007) (“[The witness] did not have personal knowledge of the value of the ruined items, but relied upon the opinions of his vendors, who did not testify.”). Thus, the victim’s reliance on hearsay evidence from websites was insuff…
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Butler v. State, 970 So. 2d 919 (Fla. 1st DCA 2007)…03)(reversing and remanding for a new restitution hearing). “On remand, written estimates may suffice, so long as they satisfy the requirements of business records under section 90.803(6), Florida Statutes (2005), or are uncontested.” I.M. v. State, 958 So. 2d 1014, 1016 (Fla. 1st DCA 2007). Here, Butler made a timely hearsay objection to the admissibility of the written estimate. Because the written estimate was inadmissible hearsay evidence, we hold that the trial court erred in admitting the estimate and ba…
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Conway v. State, 115 So. 3d 1058 (Fla. 4th DCA 2013)…and remand the case for a new restitution hearing. “On remand, written estimates may suffice, so long as they satisfy the requirements of business records under section 90.803(6), Florida Statutes (2005), or are uncontest [*1060] ed.” I.M. v. State, 958 So. 2d 1014, 1016 (Fla. 1st DCA 2007). Reversed and Remanded. GERBER and LEVINE, JJ., concur.…
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
- Donald B. Banks v. State, 732 So. 2d 1065 (Fla. 1999)
- I.M. a child v. State, 917 So. 2d 927 (Fla. 1st DCA 2005)
- B.L.N. v. State, 722 So. 2d 860 (Fla. 1st DCA 1998)
- C.S. v. State, 617 So. 2d 863 (Fla. 1st DCA 1993)
- Davis v. State, 707 So. 2d 842 (Fla. 2d DCA 1998)
- Sauni Monica Bonner v. State, 899 So. 2d 1212 (Fla. 2d DCA 2005)