DARNELL THOMPSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 2011-09-07
No. 4D08-1822
WARNER and LEVINE, JJ., concur., POLEN, J., concurs specially with opinion.
68 So. 3d 425 Florida District Court of Appeal, Fourth District (2011) Positive Treatment
Cited by 31 cases

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Synopsis

Thompson appealed a restitution award following his conviction for burglary and grand theft. The trial court awarded $68,000 in restitution by reducing the purchase price by approximately 10% without adequate evidence of fair market value or special circumstances justifying the use of purchase price.


Holding

The trial court abused its discretion. Restitution must be based on fair market value calculated using four statutory factors (original cost, manner of use, condition and quality, and depreciation), and absent special circumstances, fair market value—not purchase price—must be used. The arbitrary 10% depreciation lacked record support and evidentiary basis.


Headnotes

[1] A trial court's determination of the amount of restitution is reviewed for an abuse of discretion.

[2] The amount of restitution must be supported by competent, substantial evidence.

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Key Quotes

“absent circumstances tending to show that [fair market value] does not adequately compensate the victim or otherwise serve the purpose of restitution, fair market value should be used”

Establishes the legal standard that fair market value is the presumptive basis for restitution unless special circumstances exist

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Facts & Procedural History

Thompson was convicted of burglary and grand theft. The victim testified regarding the purchase price and purchase date of the stolen items. The trial…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The issue presented in this appeal is whether the trial court abused its discretion in awarding restitution following appellant’s conviction for burglary and grand theft. We reverse, as the trial court awarded restitution based on purchase price without adequately calculating the fair market value of the stolen items.

We review a trial court’s determination of the amount of restitution for an abuse of discretion. Soriano v. State, 968 So.2d 112, 114 (Fla. 4th DCA 2007). The amount of restitution must be supported by competent, substantial evidence. Id. Generally, the amount of restitution is established through evidence of fair market value of the stolen items at the time of the theft. Id. at 115. Fair market value is calculated by reference to four factors: (1) the original market cost; (2) the manner in which the items were used; (3) the general condition and quality of the items; and (4) the percentage of depreciation. State v. Hawthorne, 573 So.2d 330, 332 (Fla.1991). This court has consistently recognized that a trial court is not limited to consideration of fair market value, but *427“absent circumstances tending to show that [fair market value] does not adequately compensate the victim or otherwise serve the purpose of restitution,” fair market value should be used. Domaceti v. State, 616 So.2d 1148, 1149 (Fla. 4th DCA 1993) (citation omitted).

We find the victim’s testimony from personal knowledge regarding the purchase price and purchase date to be competent evidence to substantiate the items’ original cost. See Gonzalez v. State, 40 So.3d 86, 89 (Fla. 4th DCA 2010). The record, however, contains no competent evidence of the “general condition and quality of the items” or the percentage of depreciation that would permit the trial court to calculate market value. The trial court awarded $68,000 in restitution by reducing the purchase price of the items by “approximately ten percent” in a calculation the trial court termed “hardly scientific.” Application of such an arbitrary percentage of depreciation, without an explanation or record support, was an abuse of discretion. Kiefer v. State, 909 So.2d 572, 574 (Fla. 5th DCA 2005). The trial court also identified no special circumstances that would permit it to award purchase price in lieu of fair market value. See Wolff v. State, 981 So.2d 651, 653 (Fla. 4th DCA 2008).

Accordingly, we reverse the order of restitution and remand for an evidentiary hearing to determine either the fair market value of the stolen items or to identify special circumstances that would permit an award of restitution based on purchase price.

Reversed and remanded.

WARNER and LEVINE, JJ., concur.

POLEN, J., concurs specially with opinion.

POLEN, J.,

concurring specially.

I agree with the majority opinion, and write separately to address some additional aspects of the restitution sought in this case, to assist the trial court on remand.

First, by our reversal of the restitution award, we do not suggest that the amount arrived at was either too high or too low— only that the method by which the trial court determined the amount was improper.

Second, I would submit that since much of the victim’s claimed losses were gold and silver jewelry, the trial court might well take judicial notice, upon request, of the significant rise in the prices of gold and silver over the past decade.

Third, despite a number of cases which seem to make it more difficult for a victim to prove the “fair market value” of their stolen property (i.e., objections of hearsay as to sources of information as to value, absence of receipts for items bought years earlier), I believe the goal of the criminal justice system should be to strive to allow full compensation to victims — not to make them victims twice.

Finally, the trial court never specified in its restitution award whether or not it found credible the victim’s testimony that there was twenty thousand dollars in cash in the stolen safe. If it did, I believe restitution for that amount should be dollar for dollar. Either way, such a finding may assist the trial court in making its overall award, and would assist this court if the matter is again appealed.

Concurrence
POLEN, J.,

POLEN, J.,

concurring specially.

I agree with the majority opinion, and write separately to address some additional aspects of the restitution sought in this case, to assist the trial court on remand.

First, by our reversal of the restitution award, we do not suggest that the amount arrived at was either too high or too low— only that the method by which the trial court determined the amount was improper. Second, I would submit that since much of the victim’s claimed losses were gold and silver jewelry, the trial court might well take judicial notice, upon request, of the significant rise in the prices of gold and silver over the past decade.

Third, despite a number of cases which seem to make it more difficult for a victim to prove the “fair market value” of their stolen property (i.e., objections of hearsay as to sources of information as to value, absence of receipts for items bought years earlier), I believe the goal of the criminal justice system should be to strive to allow full compensation to victims — not to make them victims twice.

Finally, the trial court never specified in its restitution award whether or not it found credible the victim’s testimony that there was twenty thousand dollars in cash in the stolen safe. If it did, I believe restitution for that amount should be dollar for dollar. Either way, such a finding may assist the trial court in making its overall award, and would assist this court if the matter is again appealed.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (16 total)

  • Conway v. State, 115 So. 3d 1058 (Fla. 4th DCA 2013)
    …mony only established replacement value. “ ‘[A]bsent circumstances tending to show that fair market value does not adequately compensate the victim or otherwise serve the purpose of restitution,’ fair market value should be used.” Thompson v. State, 68 So. 3d 425, 427 (Fla. 4th DCA 2011) (quoting Domaceti v. State, 616 So. 2d 1148, 1149) (Fla. 4th DCA 1993). The trial court identified no special circumstances to justify using a value other than fair market. The victim did not know how much she had paid for t…
  • Danzey v. State, 186 So. 3d 1064 (Fla. 2d DCA 2016)
    …ring and the Omega gold watch, and she did not know the exact purchase price of the ruby- ring. There was also no testimony regarding the condition of the three jewelry pieces or testimony regarding their current market value. See Thompson v. State, 68 So. 3d 425, 426 (Fla. 4th DCA 2011) (“Fair market value is calculated by reference to four factors: (1)' the original market cost; (2) the manner in which the items were used; (3) the general .condition and quality of the items; and (4) the percentage of depre…
  • Morrill v. State, 268 So. 3d 160 (Fla. 4th DCA 2019)
    …the “guesstimated” replacement value determined to be inadequate); T.D.C. v. State, 117 So. 3d 809, 811 (Fla. 4th DCA 2013) (remanding because the court did not have evidence of the fair market value at the time of the theft); Thompson v. State, 68 So. 3d 425, 427 (Fla. 4th DCA 2011) (remanding when only evidence of purchase date and price was presented); 3 Wolff v. State, 981 So. 2d 651, 653 (Fla. 4th DCA 2008) (remanding due to “absen[ce] of any evidence of the fair market value of the stolen e…

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