              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED


                                         IN THE DISTRICT COURT OF APPEAL
                                         OF FLORIDA
                                         SECOND DISTRICT



M.P.,                                    )
                                         )
             Appellant,                  )
                                         )
v.                                       )      Case No. 2D17-871
                                         )
STATE OF FLORIDA,                        )
                                         )
             Appellee.                   )
                                         )

Opinion filed September 21, 2018.

Appeal from the Circuit Court for
Hillsborough County; Christopher Nash,
Judge.

Howard L. Dimmig, II, Public Defender,
and Anthony C. Musto, Special Assistant
Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Dawn A. Tiffin,
Assistant Attorney General, Tampa, for
Appellee.



ROTHSTEIN-YOUAKIM, Judge.

             M.P. appeals the restitution judgment entered after the trial court

adjudicated him delinquent based on his admission to committing, among other

delinquent acts, burglary and grand theft of Raul Laureano-Cheveres's motor vehicle.
The written restitution judgment orders M.P. to pay Laureano-Cheveres $5080, which

was the sum of the trial court's oral findings on Laureano-Cheveres's insurance

deductible for repairing the vehicle, the amount that he had to personally pay to replace

the vehicle's damaged tire and damaged rims, and the fair market value of items that

had been inside the vehicle when it was stolen but were missing when the police

recovered it.

                We agree with M.P.'s argument that competent substantial evidence does

not support the restitution awards for the electronic torque wrench, the Samsung Gear S

watch, and the cordless screwdriver that were missing from the vehicle, but we reject

without further comment his challenges to the trial court's findings regarding the other

items. We also agree that the trial court erred in failing to determine whether the

restitution award exceeded what M.P. could reasonably be expected to make or pay.

Therefore, as explained below, we reverse the restitution judgment and remand for

further proceedings.

                                      I. Background

                Laureano-Cheveres was the only witness at the restitution hearing. He

testified that he had to pay an insurance deductible for damage to the body of his

vehicle and had to pay out of pocket to replace one tire and two rims that had been

damaged. He also testified that upon return of his vehicle in October 2016, he had

noticed that the following items, which had been inside of the vehicle at the time of the

theft, were missing: two impact wrenches, an air impact wrench, a cordless drill, an

electronic torque wrench, a 100-round magazine for an AR-15, a Samsung Gear S

watch, a cordless screwdriver, and Halloween costumes.




                                           -2-
                 Laureano-Cheveres purchased the cordless screwdriver "[i]n the 2013

timeframe, 2014" for "[t]wo hundred and forty-some dollars, $44 -- $244 or $243," and "it

was [in] fairly good working condition" before being stolen. He purchased the electronic

torque wrench, which was "used for precision usage," "[a]round 2013, somewhere

around there" for "[f]our-hundred and fifty-some dollars." He purchased the Samsung

Gear S watch, which he described as "a phone as well," "in 2012, 2013, somewhere

around that timeframe" for $300. He also mentioned that the tools were his

"professional tools," but beyond that, his description of these three items was limited to

the foregoing.

              M.P. argued that the State failed to introduce sufficient evidence of the fair

market value of most of the stolen items because Laureano-Cheveres testified merely to

their purchase price and date, did not testify as to the condition of some items at the

time of the theft, and never mentioned depreciation. The trial court disagreed, relying

on this court's opinion in Duncan v. State, 192 So. 3d 654 (Fla. 2d DCA 2016), and

awarded restitution of $1200 for the two impact wrenches ($600 each), $400 for the air

impact wrench, $700 for the cordless drill, $200 for the AR-15 magazine, $80 for the

Halloween costumes, $1000 for the insurance deductible, and $500 for the one tire and

two rims, the sum of which is $4080. The court also awarded $450 for the electronic

torque wrench, $250 for the cordless screwdriver, and $300 for the Samsung Gear S

watch, resulting in total restitution of $5080.

              Following this oral pronouncement, M.P. objected because the trial court

had failed to make a finding regarding what M.P. could reasonably be expected to make




                                             -3-
or pay. But the court merely responded, "Okay," and then imposed the restitution as a

lien pursuant to the State's request. M.P. timely appeals.

                                       II. Analysis

              The court may order a delinquent child to pay restitution "for any damage

or loss caused by the child's offense in a reasonable amount or manner to be

determined by the court." § 985.437(2), Fla. Stat. (2016). When the trial court orders

restitution, however, "the amount of restitution may not exceed an amount the child and

the parent or guardian could reasonably be expected to pay or make." Id. The State

has the burden of proving the amount of restitution by the greater weight of the

evidence. See J.L.C. v. State, 189 So. 3d 260, 261 (Fla. 2d DCA 2016). We review for

an abuse of discretion the trial court's determination of the amount of restitution, and we

will not disturb the findings underlying that determination if competent substantial

evidence supports them. See id.

              Unlike criminal offenses, in which the value of the property involved is an

essential element that should be proven by establishing its fair market value at the time

of the crime, restitution does not demand "such a rigid standard of proof." See State v.

Hawthorne, 573 So. 2d 330, 332 (Fla. 1991). Thus, "a court is not tied to fair market

value as the sole standard for determining restitution amounts, but rather may exercise

such discretion as required to further the purposes of restitution." Id. at 333. But when

the court "determine[s] that a restitution amount equal to fair market value adequately

compensates the victim or otherwise serves the purposes of restitution, . . . the value

should be established either through direct testimony or through evidence of the four




                                           -4-
factors announced in Negron[1]." Id. (footnote omitted). The direct testimony can be

established by a victim who opines as to the fair market value at the time of the theft, so

long as the victim is competent to testify to such by demonstrating sufficient familiarity

with the item and its value. See S.M. v. State, 159 So. 3d 966, 968 (Fla. 2d DCA 2015).

Otherwise, the trial court should ascertain the fair market value by considering evidence

of its original market cost, its manner of use, its general condition and quality, and the

percentage of depreciation. See Hawthorne, 573 So. 2d at 332-33.

                               A. The Cordless Screwdriver

              Laureano-Cheveres testified that he purchased the cordless screwdriver

two to three years before the incident for either $243 or $244, that it was one of his

"professional tools," and that it was in fairly good working condition at the time of the

theft. This was sufficient evidence for the trial court to determine an appropriate amount

of restitution, even absent evidence of depreciation. See Duncan, 192 So. 3d at 655-56

(affirming $1300 restitution award for a smart TV based on testimony that the victim

purchased it one or two years earlier for $1300, that it was in good condition at the time

of the theft, and that the "victim purchased a replacement television for $500, but unlike

the stolen television, it was not a 'smart' television"); J.M. v. State, 661 So. 2d 1285,

1285-86 (Fla. 4th DCA 1995) (holding that the evidence was sufficient to support the

amount of restitution awarded for "a wallet, a money clip, a driver's license, antique

Roman coins, a brief case, and tools" stolen from vehicle because the victim "estimated

that it cost $100.00 to buy the Roman coins, $100.00 to buy the briefcase and $50.00 to




             Negron v. State, 306 So. 2d 104 (Fla. 1974), receded from on other
              1

grounds by F.B. v. State, 852 So. 2d 226, 229 (Fla. 2003).


                                            -5-
buy the tools[, and a]lthough he did not know the exact fair market value of the rest of

the items, [the victim] estimated that it cost approximately $10.00 to replace his wallet

and driver's license, and $75.00 to replace the money clip").

              Nevertheless, we reverse the restitution awarded for the cordless

screwdriver because competent substantial evidence does not support the trial court's

award of $250 in restitution for that item. There was no evidence that it had somehow

appreciated in value since Laureano-Cheveres purchased it. See Ibrahim v. State, 866

So. 2d 749, 751 (Fla. 5th DCA 2004) (agreeing with the State's concession "that the trial

court erroneously awarded restitution in the amount of $2,400 for an 18 [k]arat gold rope

chain, when the victim testified that the value of the chain at the time of the theft was

$2,300").

             B. The Electronic Torque Wrench and Samsung Digital Watch

              We also reverse the restitution awarded for the electronic torque wrench

and the Samsung Gear S watch because the State failed to introduce sufficient

evidence to support an award of restitution for either item. Laureano-Cheveres never

personally opined as to either item's fair market value at the time of the theft but merely

testified to the price that he had originally paid for each approximately three to four

years before the theft. With only this information and the absence of any testimony

concerning either the condition of each at the time of the theft or depreciation, the trial

court had insufficient evidence from which it could determine a fair market value at the

time of the theft. See Thompson v. State, 68 So. 3d 425, 427 (Fla. 4th DCA 2011)

(holding that the victim's testimony of the items' original purchase price was insufficient

to support the restitution award because the record contained "no competent evidence




                                            -6-
of the 'general condition and quality of the items' or the percentage of depreciation that

would permit the trial court to calculate market value"); see also Hawthorne, 573 So. 2d

at 332, 333 & n.6 (explaining that absent direct evidence such as the owner's personal

opinion of fair market value, the trial court can determine fair market value based on

consideration of item's original market cost, manner of use, general condition and

quality, and percentage of depreciation). Moreover, there was insufficient evidence to

justify reliance on a method other than fair market valuation. See Hawthorne, 573 So.

2d at 333 (explaining that the court has discretion to award restitution based on

approach other than fair market value if needed to adequately compensate the victim or

otherwise further the purpose of restitution).

                       C. Reasonable Expectation to Pay or Make

              We also reverse the written restitution judgment because, as M.P.

correctly argues, the trial court failed to make any findings concerning what M.P. or his

parent(s) or guardian(s) could reasonably be expected to pay or make. See §

985.437(2); K.T.M v. State, 969 So. 2d 542, 543 (Fla. 2d DCA 2007) ("[I]t is reversible

error for a trial court to order restitution to be paid by a child without making findings

concerning the child's ability to earn and ability to pay." (citing M.W.G. v. State, 945 So.

2d 597, 601 (Fla. 2d DCA 2006))).

              We disagree with the State's argument that M.P. failed to adequately

preserve this issue for review. In a criminal case, ability to pay is considered in

enforcement proceedings after the court orders restitution, see § 775.089(6), Fla. Stat.

(2016), but in a juvenile case, the court must determine before ordering restitution what

the delinquent child or his or her parent(s) or guardian(s) can be reasonably expected to




                                             -7-
both pay and make, see § 985.437(2); L.W. v. State, 163 So. 3d 598, 601 (Fla. 3d DCA

2015) ("The cases discussing and interpreting section 985.437 universally require the

trial court to make a factual finding that the child and/or his parent or guardian could

reasonably be expected to pay the amount of the loss at the time the restitution is

imposed, not merely when the court is subsequently required to enforce the order or

determine whether the juvenile violated his probation."); see also J.A.B. v. State, 993

So. 2d 1150, 1152 (Fla. 2d DCA 2008) (en banc) (noting that section 775.089(6)

previously required consideration at the restitution hearing of both the victim's losses

and the defendant's financial resources, that a subsequent amendment shifted the

consideration of the defendant's financial resources to the enforcement proceeding, and

that the juvenile statute had not been not similarly amended so that trial courts must still

consider the ability to earn and pay before ordering restitution). Especially because of

this distinction in timing, M.P. adequately preserved the issue when he objected

contemporaneously with the court's failure to make the requisite findings; he did not

need to object again after the trial court imposed the lien.

              We also disagree with the State's assertion that M.P. had the burden to

prove what he and his parents could reasonably have been expected to pay or make

and that by failing to provide any such evidence on which the court could premise such

a finding, M.P. relieved the trial court of its duty to make such a finding. It is true that

the criminal restitution statute imposes this duty on the defendant and that this court has

previously noted that the criminal statute can provide guidance when the juvenile statute

is silent on a matter. See J.A.B., 993 So. 2d at 1152. The criminal restitution statute,

however, cannot provide guidance regarding the evidentiary burden necessary to




                                             -8-
support a finding in a juvenile restitution proceeding that, as noted above, the criminal

statute does not require be made in the criminal restitution proceeding. See §

985.437(2); L.W., 163 So. 3d at 601 n.2 (noting that the restitution process applicable to

juvenile delinquency proceedings "is precisely the opposite of the restitution process for

adults, which requires the trial court to consider the defendant's ability to pay only at the

time of enforcement of the restitution order, not at the time the restitution order is

imposed"). Moreover, when the delinquent child fails to introduce evidence of what the

child or the child's parents or guardians could be reasonably expected to pay or make,

we remand for a new hearing on that issue. See K.T.M., 969 So. 2d at 543 (reversing

restitution award because the court failed to make any finding on K.T.M.'s ability to earn

or pay, despite noting that "[n]either the State nor K.T.M. offered any evidence

concerning K.T.M.'s ability to earn money or ability to pay restitution"); see also M.W.G.,

945 So. 2d at 601 ("When no evidence of what the child could reasonably be expected

to earn is presented at the restitution hearing, the trial court cannot make a finding on

this issue. In the absence of such a finding, an appellate court must reverse the

restitution order and remand for a hearing on the child's ability to earn and ability to

pay." (citations omitted)).

                                      III. Conclusion

              We reject M.P.'s challenges to the trial court's findings regarding the two

impact wrenches, the air impact wrench, the cordless drill, the AR-15 magazine, the

Halloween costumes, the car insurance deductible, the tire, and the two rims. However,

the trial court erred in its findings regarding the cordless screwdriver, electronic torque

wrench, and Samsung Gear S watch. The trial court also erred because it failed to




                                            -9-
make any findings regarding what M.P. or his parent(s) or guardian(s) could be

reasonably expected to make or pay. Accordingly, we reverse the restitution judgment

and remand for a new restitution hearing consistent with this opinion.

             Reversed and remanded.



NORTHCUTT and SALARIO, JJ., Concur.




                                          - 10 -
