J.L.C., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 2016-04-06
No. 2D14-3241
VILLANTI, C.J., and SILBERMAN, J., Concur.
189 So. 3d 260 Florida District Court of Appeal, Second District (2016) Positive Treatment
Cited by 10 cases

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Holding

A victim's speculative estimate of stolen coin value, lacking a competent foundation, is insufficient to support a restitution order.


Headnotes

[1] A circuit court's determination of property value within a restitution order is reviewed for an abuse of discretion.

[2] The State bears the burden of proving the amount awarded in restitution by a preponderance of the evidence, and that evidence must be competent and substantial.

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Facts & Procedural History

J.L.C. appealed a restitution order for burglary, specifically challenging the valuation of stolen coins. The victim estimated the coins' value based …

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Opinion of the Court
LUCAS, Judge.

LUCAS, Judge.

J.L.C. appeals a restitution order entered in connection with his adjudication of delinquency for burglary of a dwelling. In his appeal, J.L.C. takes issue with the circuit court’s valuation of various items he stole from the victim, Mr. Tibbs. We affirm the court’s valuations in all respects save one.

Among the items J.L.C. misappropriated, and for which the State sought restitution, was a five-gallon water jug that *261held loose change. Mr. Tibbs testified that his jug was “half full of coins” that were, apparently, all silver change — nickels, dimes, and quarters — no pennies. He estimated that this half-full water jug held $3500 worth of coins. When asked on direct examination how he arrived at this sum, he explained, somewhat enigmatical-iy:

How I arrived at that number was through a stepdaughter of mine.... I gave her a jug of glass — five—gallon jug, glass ... which blew up on me over a cold air register.... [I]t took me five — $200 in pennies to finish out this jug. This is how come I estimated at the $3500.

Counsel for J.L.C. did not cross-examine Mr. Tibbs, and the State did not proffer any further evidence about the value of the coins. J.L.C., on the other hand, testified that when he took the jug of coins to a Comstar machiné at a local grocery store, he received about $421, after a deducted fee of approximately $58. The circuit court, in announcing its ruling, rejected J.L.C.’s testimony about the machine’s computation, accepted Mr. Tibbs’ estimation, and entered a restitution order in the amount of $4400, of which $3500 was attributed to the coins.

We review a circuit court’s determination of property value within a restitution order for abuse of discretion. Danzey v. State, 186 So.3d 1064 (Fla. 2d DCA 2016); State v. Shields, 31 So.3d 281, 282 (Fla. 2d DCA 2010). The State bears the burden of proving the amount awarded in restitution by a preponderance of the evidence. S.M. v. State, 159 So.3d 966, 968 (Fla. 2d DCA 2015). That evidence must be competent and substantial. Danzey, 186 So.3d 1064; S.M., 159 So.3d at 968.

We are not entirely clear what Mr. Tibbs was attempting to convey to the circuit court from his testimony, much, less how he ultimately arrived at his valuation for these coins.' We are certain, though, that the $3500 he' opined was in this jug of change was, at best, an estimated guess'.1 While an owner may offer an opinion of the value of his or her own property in a restitution proceeding, that opinion must be based upon a competent foundation. See Fernandez v. State, 98 So.3d 730, 732 (Fla. 2d DCA 2012) (“Even though property owners are generally qualified to testify ’ regarding the fair market value of their property, the amount of loss ‘must be established through more than mere speculation; it must be based on competent evidence.’ ” (citation omitted) (quoting Glaubius v. State, 688 So.2d 913, 916 (Fla.1997))); Gonzalez v. State, 40 So.3d 86, 89 (Fla. 4th DCA 2010) (observing that “[a] victim must have a sufficient- predicate upon which to base his or her opinion on the value of items stolen”). Mr. Tibbs’ experience filling, a five-gallon jug with pennies was not a competent- basis for him to derive the value of loose, silver change in another half-filled five-gallon jug.

Indeed, we rejected a similar attempt to value a coin collection under similar circumstances in Miller v. State, 833 So.2d 318 (Fla. 2d DCA 2003). In Miller, the victim’s son testified at a restitution hearing that-his mother had between eight and ten one-gallon bags of coins that were stolen, a trove that he thought amounted to $10,000. Id. at 319. We noted that, although the witness knew the denomina*262tions in his mother’s collection, he could not recall the number of the particular coins within the bags or whether each of the bags contained similar amounts of coins. Id. Like Mr. Tibbs, the witness in Miller attempted to draw a comparison from a prior coin-counting — in that case, a pawnbroker’s previous payment of’ $1000 for another box of coins that contained approximately'a fifth of the contents of one of the gallon bags. See id. We observed that his valuation was “speculative opinion testimony” based on hearsay and reversed the circuit court’s restitution order. Id. Here, Mr. Tibbs’ opinion about his jug of coins suffers from the same speculative shortcoming we found in Miller’s bags of coins.

In so holding, we do not in- any way impugn the sincerity of Mr. Tibbs’ attempt to estimate how much money-his jug held. But an estimate from'a guess is still just a guess. And a mere “guesstimate” of value, such as here, does not constitute competent, substantial evidencé that will support a restitution order. Cf. Bennett v. State, 944 So.2d 524, 526 (Fla. 4th DCA 2006) (“Guesstimates and speculative testimony are inappropriate evidence on which to base an award of restitution.”). Accordingly, we reverse the order of the circuit .court.

Reversed and remanded for a new restitution hearing.

VILLANTI, C.J., and SILBERMAN, J., Concur.


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Cited By

  • Duncan v. State, 192 So. 3d 654 (Fla. 2d DCA 2016)
    …on in determining a restitution amount to make the victim whole, [*658] here, there was no competent, substantial evidence to support the trial court’s award of restitution [for the gemstones].” Gonzalez, 948 So. 2d at 895; see also J.L.C. v. State, 189 So. 3d 260, 261 (Fla. 2d DCA 2016) (reversing restitution order where the victim’s testimony regarding the value of the loose change in the stolen jug “was, at best, an estimated guess”); Fernandez, 98 So. 3d at 732 (reversing restitution order based on the vi…
  • M. P. v. State, 256 So. 3d 231 (Fla. 2d DCA 2018)
  • A.J.A. v. State, 215 So. 3d 639 (Fla. 5th DCA 2017)
    …State, and the amount must be proven by a preponderance of the evidence. See § 775.089(7), Fla. Stat. (2016); Santana v. State, 795 So. 2d 1112, 1113 (Fla. 5th DCA 2001). Restitution must be proven by substantial competent evidence. J.L.C. v. State, 189 So. 3d 260, 261 (Fla. 2d DCA 2016). Repair estimates have been held to be hearsay and cannot support a restitution award if an objection is lodged. See, e.g., Williams v. State, 850 So. 2d 627, 627 (Fla. 2d DCA 2003) (“The trial court’s restitution award was […

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