G.M.H., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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G.M.H. was adjudicated delinquent for burglary and grand theft of a dirt bike and challenges a $1,062 restitution award. The appellate court reversed because the trial court admitted hearsay evidence of repair costs and remanded for a new hearing with admissible evidence of the victim's actual loss.
The court reversed the restitution award because the trial court improperly admitted hearsay evidence of repair costs. The court held that restitution must be based on admissible evidence and, where stolen property is recovered, the restitution award must account for the salvage value of the recovered property.
[1] A trial court must resolve disputes regarding the amount or type of restitution by a preponderance of the evidence.
[2] The burden of demonstrating the amount of loss sustained by a victim as a result of an offense rests on the state attorney.
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Join FLexlaw to unlock all legal intelligence“The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense is on the state attorney.”
Establishes the state's burden to prove restitution amount by preponderance of evidence under section 775.089(7).
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Join FLexlaw to unlock all legal intelligenceG.M.H. stole a used 2003 Suzuki 100cc dirt bike purchased by the victim for $1,350. When recovered, the bike had significant damage to its frame, pane…
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The trial court adjudicated G.M.H. delinquent for burglary of a dwelling and grand theft of a dirt bike. G.M.H. challenges an order awarding restitution to the victim in the amount of $1062. He argues that there is insufficient evidence to support this award.
Section 775.089, Florida Statutes (2007), provides, in pertinent part, as follows:
(6)(a) The court, in determining whether to order restitution and the amount of such restitution, shall consider the amount of the loss sustained by any victim as a result of the offense.
(7) Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense is on the state attorney....
The victim bought a used 2003 Suzuki lOOcc dirt bike for $1350. The victim and his mother identified the bike in photographs taken before its theft and after it was recovered. The recovered bike’s frame, side panels, rear fender, tires, handlebars and grips, exhaust pipe, silencer, and brake lever were damaged. A helmet, goggles, and kickstand were missing. The engine was leaking gasoline.
The victim’s mother testified that they spent $245 to replace the tires, kickstand, helmet, and goggles. Although she did not remember what they paid to replace the handlebars and brake lever, she said she had found internet prices of $199 for the handlebars and $14.99 for the brake lever. They did not repair the remaining damage. Instead, they traded the bike six months later for a used 2004 Suzuki 80cc dirt bike *730of “equal book value.” No documentation of the book value was presented.1
Based on her internet research conducted before making any repairs, the mother submitted a list of prices for all the needed repairs. She wanted $1062 in restitution. The trial court overruled G.M.H.’s hearsay objection to the damages evidence. The court set the restitution amount at $1062, reasoning that the victim would have incurred all of the repair/replacement expenses had he not traded the bike.
The State concedes that the restitution award must be reversed; the trial court should not have admitted the hearsay evidence. See T.J.N. v. State, 977 So.2d 770, 771-74 (Fla. 2d DCA 2008). However, the State argues that restitution should include any diminution in the bike’s value before it was traded. Generally, restitution is calculated based on the fair market value of the property at the time of the offense. Fletcher v. State, 800 So.2d 309, 310 (Fla. 2d DCA 2001). “Where stolen property is recovered, the amount of restitution ordered must be offset by the salvage value of the property returned.” Bowman v. State, 698 So.2d 615, 616 (Fla. 2d DCA 1997).
We reverse and remand for a new restitution hearing at which the State may present admissible evidence of the amount of loss sustained by the victim. See Williams v. State, 850 So.2d 627, 628 (Fla. 2d DCA 2003) (holding that the State can meet its burden by presenting testimony of a witness with knowledge of damages or by presenting documentary evidence); I.M. v. State, 958 So.2d 1014, 1016 (Fla. 1st DCA 2007) (holding that victim’s opinion is sufficient if victim has personal knowledge of value; written estimates may suffice if they satisfy business record requirements or are uncontested).
Reversed and remanded.
WALLACE and CRENSHAW, JJ., Concur.
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Citator
Cited By
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Phillips v. State, 141 So. 3d 702 (Fla. 4th DCA 2014)…not be used to determine the amount of restitution when there is a proper objection by the defense to the hearsay evidence.” Conway v. State, 115 So. 3d 1058, 1059 (Fla. 4th DCA 2013) (citation and quotation marks omitted); see also G.M.H. v. State, 18 So. 3d 728, 729-30 (Fla. 2d DCA 2009) (reversing and remanding for a new restitution hearing based on the state’s concession that the trial court should not have admitted the victim’s mother’s hearsay evidence of repair prices based on her internet research).…
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S.M. v. State, 159 So. 3d 966 (Fla. 2d DCA 2015)….J.R.] v. State, 139 So. 3d 458, 459 (Fla. 1st DCA 2014). It must be proven by competent, substantial evidence. Id. Restitution value is generally calculated based on the fair market value of the property at the time of the offense, G.M.H. v. State, 18 So. 3d 728, 730 (Fla. 2d DCA 2009), although the trial court ultimately has discretion in determining the amount of restitution. State v. Hawthorne, 573 So. 2d 330, 332-33 (Fla.1991). As the supreme court noted in Hawthorne, the owner of property is generally…
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Cricket Kathleen Toole v. State, 270 So. 3d 371 (Fla. 4th DCA 2019)…Const. (2018). Despite the statute, the rules, the case law, and the constitutional amendment, proving restitution continues to be difficult for victims, and receiving compensation for their loss continues to be elusive. See, e.g., G.M.H. v. State, 18 So. 3d 728, 729-30 (Fla. 2d DCA 2009) ; I.M. v. State, 958 So. 2d 1014, 1016 (Fla. 1st DCA 2007) ; Smith v. State , 941 So. 2d 479, 481 (Fla. 3d DCA 2006) ; Ibrahim v. State , 866 So. 2d 749, 751 (Fla. 5th DCA 2004). We have previously suggested a legislative…
Authorities Cited
- Williams v. State, 850 So. 2d 627 (Fla. 2d DCA 2003)
- Bowman v. State, 698 So. 2d 615 (Fla. 2d DCA 1997)
- T.J.N. v. State, 977 So. 2d 770 (Fla. 2d DCA 2008)
- I.M. v. State, 958 So. 2d 1014 (Fla. 1st DCA 2007)
- Dusti Marie Fletcher v. State, 800 So. 2d 309 (Fla. 2d DCA 2001)
- Walentukonis v. State, 932 So. 2d 1136 (Fla. 2d DCA 2006)