          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                     CRICKET KATHLEEN TOOLE,
                             Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D17-2115

                           [February 20, 2019]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Samantha Schosberg Feuer, Judge; L.T. Case No. 50-2015-
CF-011860-AXXX-MB.

  Carey Haughwout, Public Defender, and Claire V. Madill, Assistant
Public Defender, West Palm Beach, for appellant.

    Ashley B. Moody, Attorney General, Tallahassee, and Mark J. Hamel
and Alexandra A. Folley, Assistant Attorneys General, West Palm Beach,
for appellee.

              ON DEFENDANT’S MOTION FOR REHEARING,
              REHEARING EN BANC, AND CERTIFICATION

MAY, J.

   We grant the defendant’s motion for rehearing and certification, deny
the defendant’s motion for rehearing en banc, and substitute the following
opinion for the opinion we issued on October 24, 2018.

   The labyrinth of restitution is at issue in this appeal. The law on
restitution is both challenging in terms of proof, yet essential to ensure
justice for the victim. It currently requires proof of the fair market value
of property lost or damaged. That proof was lacking in this case. We
therefore reverse and remand the case for a new restitution hearing.

   The defendant pled guilty to dealing in stolen property and false
verification of ownership to a pawnbroker. The State nolle prossed the
grand theft charge. The plea agreement did not specify a restitution
amount, but stated: “Restitution ordered for victim . . .; amount to be
determined by agreement of parties or at restitution hearing (hearsay &
causation objections waived).” The transcript does not reflect any
limitation on the amount of restitution.

   At the hearing, the State sought restitution not only for the items
pawned, but for all items taken. The defendant objected and argued that
restitution should be limited to the items pawned as she pled only to the
dealing in stolen property and false verification of ownership to a
pawnbroker charges. She did not plead to the grand theft charge, which
the State nolle prossed. The court overruled the objection and proceeded
with the hearing.

   The victim testified to the items’ value by providing their original price,
and guesstimating their replacement value. 1 For example, the victim
testified that a Samsung flat screen television “roughly” cost “probably
around” $5000 or $6000, that an X-Box 360 cost “right around” $100,
that some stolen sweatshirts cost “around 70 dollars apiece,” that a leather
jacket cost “[p]robably around 4- or 500 dollars,” and that a bag containing
pool sticks was worth “right around” $1,200.

   The State sought $9,984.12, an amount reached by subtracting the
value of some recovered items from the total amount, and the victim’s
guesstimates of replacement value for the remaining items. The defendant
not only objected to restitution for the items that had not been pawned,
but to the victim’s guesstimates, and his qualifications to testify to present
value. The court ordered the defendant to pay $9,984.12, which included
the original price, not the fair market value, of many of the items.

     Section 775.089(7), Florida Statutes, provides:

         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 burden of demonstrating the present financial
         resources and the absence of potential future financial
         resources of the defendant and the financial needs of the
         defendant and his or her dependents is on the defendant. The
         burden of demonstrating such other matters as the court
         deems appropriate is upon the party designated by the court
         as justice requires.

1   He provided receipts for some items.

                                           2
§775.089(7), Fla. Stat. (2018).

    State v. Hawthorne, 573 So. 2d 330, 333 (Fla. 1991) provides the
formula for determining fair market value for restitution purposes. Fair
market value should be established through direct testimony or evidence
of the following four factors: “(1) original market cost; (2) manner in which
the item was used; (3) the general condition and quality of the item; and
(4) the percentage of depreciation.” Id. at 332.

   There are a few more rules that apply to restitution hearings. One,
victims are “qualified” to testify to the value of their property. Id. at 333
n.6. Two, “[h]earsay evidence may not be used to determine the amount
of restitution when there is a proper objection by the defense to the
hearsay evidence.” Phillips v. State, 141 So. 3d 702, 705 (Fla. 4th DCA
2014) (quoting Conway v. State, 115 So. 3d 1058, 1059 (Fla. 4th DCA
2013)). Three, the burden of proof is preponderance of the evidence.
§ 775.089(7), Fla. Stat. (2018). And four, trial courts have discretion in
ruling on the admissibility of evidence. Phillips, 141 So. 3d at 707.

   Here, the victim testified about the items’ purchase price and provided
some receipts. This was sufficient to satisfy the first factor, the original
cost. But, there was no testimony about the manner in which the items
were used, their general condition and quality, and the percentage of
depreciation. The victim merely provided replacement cost guesstimates.
This testimony was insufficient to establish fair market value.

   In Thompson v. State, 68 So. 3d 425, 427 (Fla. 4th DCA 2011) we
reversed a restitution award because it was “based on purchase price
without adequately calculating the fair market value of the stolen items.”

      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.
      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.

Id. (citations omitted).

   Contrastingly, in Yaun v. State, 898 So. 2d 1016, 1017 (Fla. 4th DCA
2005), we affirmed a trial court’s restitution award based on the victim’s
testimony of the items’ value. We did so, however, because restitution was

                                     3
part of the plea agreement.      Id.    The record does not reflect such an
agreement here.

   Under either Thompson or Yaun, the evidence here was insufficient.

   Restitution continues to be a perplexing uphill battle for victims.
Recently, Floridians voted to amend our constitution to in part address
restitution.    Art. I, § 16, Fla. Const. (2018) (Constitutional ballot
Amendment 6, also known as Marsy’s Law). The amendment ensures the
victim’s right to:

      •   full restitution and to be provided with assistance
          collecting restitution;

      •   have any monies or property collected from any person who
          has been ordered to make restitution be first applied to the
          restitution owed to the victim before paying any amounts
          owed to the government; and

      •   compensation as provided by the law.

See Art. I, § 16, Fla. 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 fix by adding the following
to section 775.089(7): “The court is not bound by 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,
including consideration of hearsay.” See Phillips, 141 So. 3d at 706. And
yet, the statute remains the same as does the problem--proving restitution.

   Because the State failed to prove fair market value here, we reverse the
restitution award, and remand the case for a new hearing to determine




                                        4
restitution using Hawthorne’s formula. 2 But, because the issue persists,
we certify the following question to the Supreme Court of Florida as one of
great public importance.

        Is Hawthorne’s formula for determining restitution based on
        the fair market value of the victim’s property still viable after
        the passage of Amendment 6 (Marsy’s Law), or should a trial
        court no longer be bound by fair market value as the sole
        standard for determining restitution amounts, and instead
        exercise such discretion as required to further the purposes
        of restitution, including consideration of hearsay?

      Reversed and remanded for a new restitution hearing.

GERBER, C.J., concurs.
CIKLIN, J., concurs specially with opinion.

CIKLIN, J., concurring specially.

   With the fervent hope that the Florida Legislature tackles and
addresses Florida’s broken statutory restitution scheme, I take the liberty
of setting out most of an insightful law review article written by Florida
attorney Adam Hapner.

     DO YOU KNOW THE FAIR MARKET VALUE OF YOUR PROPERTY?:
      A CALL TO THE LEGISLATURE TO REVISE SECTION 775.089,
            FLORIDA STATUTES, GOVERNING RESTITUTION

      ****

                    II.   MEASUREMENTS OF PROPERTY LOSS

        A. Fair Market Value

   In most cases, the appropriate measure of the victim’s property loss is
the fair market value of the property at the time of the offense. 19 “Fair

2The defendant also suggests that restitution be limited to the items pawned
because she did not plead to the grand theft charge. A review of the plea hearing
and plea form reveal no limitation on the restitution amount.

19See State v. Hawthorne, 573 So. 2d 330, 333 (Fla. 1991) (“We recognize that in
most instances the victim’s loss and the fair market value of the property at the
time of the offense will be the same.”).

                                       5
market value” is defined as “[t]he price that a seller is willing to accept and
a buyer is willing to pay on the open market and in an arm’s-length
transaction.” 20 To establish fair market value, the State must present
either direct testimony or evidence of all of the following four factors: “(1)
original market cost; (2) manner in which the item was used; (3) the
general condition and quality of the item; and (4) the percentage of
depreciation.” 21

1. Replacement Value

   Normally, replacement value is an improper measure of the victim’s
loss. 22 But if a “ready market of identical items” to the property exists,23
or if replacement value is the actual loss suffered by the victim,24
replacement value and fair market value may be the same.

2. Retail Value

   In general, retail value is also an improper measure of the victim’s
loss. 25 However, if the victim deals in the type of goods lost, stolen, or


20 BLACK’S LAW DICTIONARY 1785 (10th ed. 2014).
21 Hawthorne, 573 So. 2d at 332; see also Mansingh v. State, 588 So. 2d 636,
638 (Fla. Dist. Ct. App. 1991). The four fair market value factors were first
announced in Negron v. State, 306 So. 2d 104 (Fla. 1974), in which the Supreme
Court of Florida held that when the value of property is an essential element of a
crime, the value must be established based on the fair market value of the
property at the time of the offense. Id. at 108.
22 See Ibrahim v. State, 866 So. 2d 749, 750 (Fla. Dist. Ct. App. 2004) (“Generally,

fair market value, not replacement value, is the correct measure of damages.”).
23 See Domaceti v. State, 616 So. 2d 1148, 1149 (Fla. Dist. Ct. App. 1993)

(“Certainly where there is a ready market of identical items to the stolen item,
restitution should be limited to its replacement.”).
24 See Dixon v. State, 601 So. 2d 606, 607 (Fla. Dist. Ct. App. 1992) (“In the

instant case, the victim for purposes of restitution is the insurer . . . . Because
the insurance policy involved in this matter provides coverage based upon
replacement cost, we cannot say that the trial court abused its discretion in
concluding that the loss caused by the appellant’s act was the replacement cost
of the stolen items.” (citation omitted)).
25 See, e.g., Walentukonis v. State, 932 So. 2d 1136, 1137 (Fla. Dist. Ct. App.

2006) (holding that the trial court erred in taking judicial notice of the retail value
of a damaged truck based on a used car guide to determine the amount of
restitution); Fletcher v. State, 800 So. 2d 309, 311 (Fla. Dist. Ct. App. 2001) (“In
arriving at fair market value, the trial court must first consider the ‘original
market cost’ of the stolen item, which was $1500 here. Accordingly, the $4500-
$6000 retail cost of the watch [at the time it was purchased] was irrelevant.”).

                                          6
damaged, retail value—rather than replacement or wholesale value—may
represent the true market value of the victim’s loss. 26

       B. “Fair Amount” Value

    Fair market value is not the sole standard for determining restitution
amounts. 27 In State v. Hawthorne, the Supreme Court of Florida held that
when fair market value does not adequately reflect the victim’s loss, such
as with a family heirloom, or when consideration of depreciation would be
inequitable, such as with a recently purchased car, the court “may exercise
such discretion as required to further the purposes of restitution.” 28 In a
subsequent case, the Supreme Court of Florida interpreted the holding in
Hawthorne to mean that “the trial court has discretion to take into account
any appropriate factor in arriving at a fair amount [that] will adequately
compensate a victim for his or her loss and further the purposes of
restitution.” 29 In other words, if the trial court finds that fair market value
is an inappropriate measure of the victim’s loss, the appropriate measure
is “fair amount” value. 30

   Not surprisingly, there is no precise definition of “fair amount” value.
In recognition that the primary purpose of restitution is to compensate the
victim, the measure is intentionally broad so it can encompass instances
when the market value of the victim’s property does not adequately
compensate the victim. 31 For example, in Hawthorne, after the defendant
was found guilty of grand theft auto, the trial court ordered him to pay
restitution to the owner of the stolen vehicle “in the amount of $1500 for


26 See, e.g., Nix v. State, 604 So. 2d 920, 922 (Fla. Dist. Ct. App. 1992) (holding
that “the retail value of the gasoline is an appropriate measure of the fair market
value” of fuel stolen from a gas station); Garrison v. State, 553 So. 2d 1377, 1379
(Fla. Dist. Ct. App. 1989) (“Under the evidence presented to the trial court, that
court could reasonably conclude that Mr. Garrison effectively stole thirteen retail
sales from the victim, and that the victim was entitled to be reimbursed for those
thirteen retail sales at the fair market value established by the retail price.”).
27 See State v. Hawthorne, 573 So. 2d 330, 333 (Fla. 1991).
28 Id. at 333 & nn.4–5.
29 Glaubius v. State, 688 So. 2d 913, 915 (Fla. 1997) (emphasis added).
30 See id.
31 See Hawthorne, 573 So. 2d at 333 (“[W]e can foresee instances when the market

value of the property would not adequately reflect the victim’s loss or when the
consideration of the percentage of depreciation would be inequitable . . . .
Therefore, we hold that 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.” (footnotes omitted)).

                                         7
the vehicle and $250 for the owner’s travel expenses.” 32 This amount of
restitution was based solely on the victim’s testimony:

      At the restitution hearing, the owner testified that the auto at
      issue was a 1979 Ford Fairmount; had a book value of $1650
      in 1985 when it was purchased for $1530; was repaired
      shortly before the theft and was in good operating condition;
      was stolen 14 months after purchase; and was valued at zero
      after the theft because it had been completely burned. The
      owner further testified that she did not know the mileage of
      the car at the time it was stolen, and that she had incurred
      expenses of $250 in securing alternative transportation. 33

On appeal, the First District Court of Appeal of Florida reversed the trial
court’s award of restitution, holding that the State had failed to establish
the fair market value of the stolen vehicle at the time of the theft because
the State presented no evidence regarding the percentage of depreciation
for the vehicle. 34

    The Supreme Court of Florida reversed the First District Court, holding
that the amount of restitution ordered by the trial court was supported by
competent, substantial evidence. 35 Specifically, the court stated that
because the victim testified to the “purchase price of the car, the book
value at the time of purchase, the repairs made to the car, and the general
condition of the car[,] . . . the amount of the restitution order was
supported by the evidence.” 36 Thus, in Hawthorne, although there was no
precise measurement of the victim’s loss, and the victim did not testify to
all of the fair market value factors, based on the evidence presented, the
court found that $1500 was a “fair amount” to compensate the victim for
the car and to further the purposes of restitution. 37

                  III.   METHODS AND PROBLEMS OF PROOF

   Despite the laudable efforts made by the Hawthorne court to limit the
inequitable results that can undoubtedly occur when the State is required
to establish precise measurements of loss, the requirements currently


32 Id. at 331–32.
33 Id. at 331.
34 Id. at 332 (citing Hawthorne v. State, 558 So. 2d 156, 157 (Fla. Dist. Ct. App.

1990)).
35 Id. at 333.
36 Id.
37 See Hawthorne, 573 So. 2d at 333.


                                        8
imposed by Florida law often make it extremely difficult, if not practically
impossible, for the State to prove the victim’s loss. 38 Regardless of which
measurement of value is used, the methods available to the State for
establishing the value of the victim’s property in a restitution hearing are
limited.   Moreover, as discussed below, each approach encounters
problems due to the Florida Evidence Code. 39

       A. Fair Market Value

1. Direct Evidence

   If the State seeks to establish fair market value via direct testimony, it
can hire an expert witness to testify concerning the value of the property.
However, hiring an expert witness to testify to fair market value involves
considerable time and expense. 40 In addition, when property is stolen or
lost and the victim has little information regarding the date of purchase,
original price, or other details of the property—such as when the victim
receives the property as a gift—the expert will have a difficult time
establishing his or her competency and reliability to opine as to the
property’s value, as required by section 90.702, Florida Statutes. 41 In
such circumstances, the expert must accept the victim’s description of the
property and speculate that a similar item has a certain value. 42 However,
Florida courts have found that such speculative expert testimony is
insufficient to establish fair market value. 43


38 See, e.g., Phillips v. State, 141 So. 3d 702, 705 (Fla. Dist. Ct. App. 2014) (per
curiam) (“The fact that it was practically impossible for the victim to establish the
restitution amount without relying on hearsay evidence appears to have caused
an unjust result for the victim, because she and the state appear to have no other
means by which to prove the restitution amount.”).
39 See infra note 48 and accompanying text.
40 Phillips, 141 So. 3d at 706.
41 Id.; see FLA. STAT. § 90.702 (2014) (“[A] witness qualified as an expert by

knowledge, skill, experience, training, or education may testify about it in the
form of an opinion or otherwise, if: (1) The testimony is based upon sufficient
facts or data; (2) The testimony is the product of reliable principles and methods;
and (3) The witness has applied the principles and methods reliably to the facts
of the case.”).
42 Phillips, 141 So. 3d at 706.
43 Id.; see, e.g., D.E.M. v. State, 109 So. 3d 1229, 1232 (Fla. Dist. Ct. App. 2013)

(“In the instant case, the victim testified that an appraiser gave him a
‘guesstimated value’ of $20,000 or $30,000 for the entire coin collection, from
which the victim came up with the $20,000 figure. The record contains no
supporting documentation or other predicate for this speculative opinion of the
value of the lost coin collection. A mere estimate of value, without any evidentiary

                                         9
    Another way for the State to establish fair market value via direct
evidence is to present the testimony of the victim. As a practical matter,
the victim is often the State’s best (if not only) witness. In Hawthorne, the
court noted that “an owner of property is generally qualified to testify as to
the fair market value of his property,” whether or not the owner is qualified
as an expert. 44 This statement presumes that the owner has familiarity
with the characteristics of the property, knowledge of its uses and
purposes, and experience in dealing with it. 45 Yet, that presumption is a
“fragile” one. 46 If it is not shown that the owner has knowledge of the
property’s fair market value, Florida courts routinely hold that the victim’s
mere opinion testimony of the value of his or her property is insufficient to
establish the amount of restitution. 47 Thus, unless the victim deals in the
type of goods lost, stolen, or damaged, the victim is unlikely to be
sufficiently qualified to provide the fair market value of his or her property.
Of course, the cases in which a burglar takes art from the home of an art


basis, is insufficient to prove an amount for restitution purposes.” (citation
omitted)); see also FLA. STAT. § 90.705(2) (2014) (providing that if the defendant
“establishes prima facie evidence that the expert does not have a sufficient basis
for the opinion, the opinions and inferences of the expert are inadmissible unless
the party offering the testimony establishes the underlying facts or data”).
44 State v. Hawthorne, 573 So. 2d 330, 333 n.6 (Fla. 1991).
45 Sanchez v. State, 101 So. 3d 1283, 1286 (Fla. Dist. Ct. App. 2012) (stating that

“an owner, though presumed competent to testify to the value of stolen property,
must demonstrate personal knowledge of the characteristics of the stolen
property, such as the quality, cost, and condition of the property”); Craig v. Craig,
982 So. 2d 724, 729 (Fla. Dist. Ct. App. 2008) (quoting Sun Bank/N. Fla., N.A.
v. Edmunds, 624 So. 2d 753, 756 (Fla. Dist. Ct. App. 1993)).
46 See Sanchez, 101 So. 3d at 1286 (“The competence presumed of an owner is

fragile, and where the owner shows a lack of familiarity with the stolen property,
the opinion evidence will not support a determination of value. . . . Rather than
offering a bare opinion, an owner’s estimate of the value of stolen property must
be supported by facts that show enough familiarity with the property to lend
credence to the opinion.”); Craig, 982 So. 2d at 729.
47 See, e.g., D.E.M., 109 So. 3d at 1232; Fernandez v. State, 98 So. 3d 730, 731

(Fla. Dist. Ct. App. 2012) (finding that “the victim’s opinion alone was insufficient
to support the amount awarded”); Bennett v. State, 944 So. 2d 524, 526 (Fla.
Dist. Ct. App. 2006) (“A victim’s testimony, without documentation, is not enough
to support an award of restitution.” (citing State v. Schuette, 782 So. 2d 935,
937 (Fla. Dist. Ct. App. 2001))); see also 1 CHARLES W. EHRHARDT, EHRHARDT’S
FLORIDA EVIDENCE § 701.1, at 713 (2013 ed.) (“An owner can testify to the value
of his or her property although the witness is not qualified as an expert. Most
decisions require the owner to have adequate knowledge upon which to base the
opinion. Usually, mere ownership of property, however, does not automatically
qualify an owner to testify as to the property’s value.”).

                                         10
appraiser, an arsonist burns down the house of a realtor, or a robber takes
a vehicle from a used-car salesperson are undeniably rare.

   Even when the victim makes a good-faith effort to learn the fair market
value of his or her property prior to testifying, the victim’s opinion may still
be inadmissible due to the rules of evidence. 48 For example, at least one
Florida court has noted that sometimes it is “practically impossible for the
victim to establish the restitution amount without relying on hearsay
evidence.” 49 In theory, at least at its origination, a victim’s personal
knowledge of the value of his or her property is usually based on some
form of hearsay, such as a receipt,50 an appraisal or estimate, 51 or the
price in a store catalog or on a store website. 52 However, because there is
no statutory exception to the general exclusion of hearsay in restitution
proceedings, 53 Florida courts have unanimously held that if the defense
properly objects, hearsay evidence is generally inadmissible to determine
the amount of restitution. 54 Thus, because the owner must provide some

48 See, e.g., Phillips, 141 So. 3d at 705; see also infra note 54 and accompanying
text; see generally EHRHARDT, supra note 47, at 707.
49 Phillips, 141 So. 3d at 705.
50 Twilegar v. State, 42 So. 3d 177, 199 (Fla. 2010) (stating that a receipt is

hearsay if “admitted for the truth of the matters asserted (the dates of the
purchases, the amounts, the locations, and whether the purchases were made in
cash)”).
51 Leatherwood v. State, 108 So. 3d 1154, 1154–55 (Fla. Dist. Ct. App. 2013)

(holding that “an appraisal letter from a jeweler to establish the value of the stolen
jewelry” was hearsay and was insufficient to establish the amount of restitution
unless properly qualified as a business record); T.J.N. v. State, 977 So. 2d 770,
773 (Fla. Dist. Ct. App. 2008) (“When testimony concerning the estimated cost of
repairs to damaged property is ‘offered in evidence to prove the truth of the matter
asserted,’ it is ‘hearsay’ unless ‘made by the declarant while testifying at the trial
or hearing.’”); Butler v. State, 970 So. 2d 919, 921 (Fla. Dist. Ct. App. 2007)
(“Because the written estimate was inadmissible hearsay evidence, we hold that
the trial court erred in admitting the estimate and basing the value of the exterior
door solely on this evidence.”).
52 See Phillips, 141 So. 3d at 705 (“Here, the victim’s reliance on hearsay evidence

from websites resembles a witness’s reliance on hearsay evidence from a catalog
or contacts with non-witnesses, which courts have held cannot support the
determination of a restitution amount.”); Gonzalez v. State, 40 So. 3d 86, 89 (Fla.
Dist. Ct. App. 2010) (“Catalog prices alone are insufficient to establish a sufficient
predicate.”); Ricci v. State, 550 So. 2d 34, 36 (Fla. Dist. Ct. App. 1989) (“[T]he
price on the page from the jewelry catalog is inadmissible hearsay.”).
53 See FLA. STAT. § 90.802 (2014) (“Except as provided by statute, hearsay

evidence is inadmissible.”).
54 See, e.g., T.J.N., 977 So. 2d at 773 (“Hearsay evidence may not be used to

determine the amount of restitution when there is a proper objection by the

                                         11
predicate for the valuation he or she offers, 55 and hearsay evidence is an
insufficient basis for the owner’s opinion in Florida, 56 many victims will
not be sufficiently qualified to opine as to their property’s value.

   The general exclusion of hearsay does not mean that hearsay evidence
is never admissible in a restitution hearing, however. Even when the
defendant objects, if the hearsay evidence meets an exception to the
general exclusion rule and has “some minimal indicia of reliability,” the
hearsay evidence is likely admissible. 57 For example, “[w]ritten opinions

defense to the hearsay evidence.”); Smith v. State, 941 So. 2d 479, 480 (Fla. Dist.
Ct. App. 2006) (“We reverse and remand for a new restitution hearing because
the State’s evidence was improperly based on hearsay.”); Johnson v. State, 856
So. 2d 1085, 1087 (Fla. Dist. Ct. App. 2003) (noting that the testimony used to
support the restitution award was improper, in part, because it was based on
hearsay); Herrington v. State, 823 So. 2d 286, 286 (Fla. Dist. Ct. App. 2002)
(stating that the trial court erred in setting the amount of restitution based on
hearsay evidence to which the defendant properly objected); Rae v. State, 638 So.
2d 597, 598 n.1 (Fla. Dist. Ct. App. 1994) (“The trial court erroneously believed
hearsay evidence was admissible in a restitution hearing. The general rule is that
hearsay testimony is not admissible in a restitution hearing unless defense
counsel fails to properly object to the evidence.”). The requirement of an objection
by the defense is more of a preservation of error requirement than an additional
requirement to the general rule excluding hearsay. See Molter v. State, 892 So.
2d 1115, 1117 (Fla. Dist. Ct. App. 2004) (stating that the defendant “waived the
hearsay objection by failing to raise it” (emphasis added)).
55 D.E.M. v. State, 109 So. 3d 1229, 1232 (Fla. Dist. Ct. App. 2013) (stating that

“the victim must have ‘a sufficient predicate’ on which to base an opinion
regarding the value of the items taken”); Fino v. Nodine, 646 So. 2d 746, 748–49
(Fla. Dist. Ct. App. 1994) (“Before lay opinion testimony can be properly admitted,
a predicate must be laid in which the witness testifies as to the facts or
perceptions upon which the opinion is based.” (citation omitted)).
56 See generally EHRHARDT, supra note 47, at 707 (“Lay opinion based on hearsay

evidence is not admissible.”).
57 See Box v. State, 993 So. 2d 135, 139 (Fla. Dist. Ct. App. 2008); accord McKown

v. State, 46 So. 3d 174, 175 (Fla. Dist. Ct. App. 2010). To the extent that the
“minimal indicia of reliability” requirement has been interpreted by some courts
as a “relaxed evidentiary standard in restitution hearings,” State v. Davis, 133
So. 3d 1101, 1106 n.6 (Fla. Dist. Ct. App. 2014), these courts are mistaken. It is
in fact an additional requirement to the admission of hearsay at sentencing
originally created by federal courts to safeguard defendants’ right to due process
because the Confrontation Clause does not apply at sentencing. See Box, 993
So. 2d at 139 (“We acknowledge that despite the fact that Crawford does not
apply to restitution hearings, the State is still not permitted to admit any and all
hearsay. Rather, the trial court may only allow hearsay having some minimal
indicia of reliability to be injected into the sentencing proceeding.” (citing United
States v. Littlesun, 444 F.3d 1196, 1199, 1200 (9th Cir. 2006))). It should also

                                         12
or estimates may qualify as a business record exception to the hearsay
rule under section 90.803(6), Florida Statutes . . . .” 58 But for a written
opinion or estimate to meet the business record exception, the production
of estimates must be a regularly conducted business activity, and the State
must either call a witness to lay the foundational requirements of section
90.803(6) or establish the foundation by certification or declaration.59
Thus, because written opinions and estimates are unlikely to be self-
authenticating, as noted above, the State must incur the additional time
and expense of producing an additional witness to testify concerning the
value of the victim’s property, and even then, the witness may not be
sufficiently qualified or have enough information to form a reliable basis
on which to opine. 60 Indeed, Florida courts routinely reverse trial courts’
restitution awards because the State’s evidence failed to comply with the
foundational requirements of section 90.803(6). 61



be noted that, in Box, the hearsay at issue was a “self-authenticating public
record[]” and thus did not require an analysis of its admissibility under the
Florida Evidence Code. Id. at 136; see FLA. STAT. § 90.803(8) (2014) (providing
that public records and reports are admissible hearsay “unless the sources of
information or other circumstances show their lack of trustworthiness”).
58 Butler v. State, 970 So. 2d 919, 920 (Fla. Dist. Ct. App. 2007).
59 Id. at 920–21.
60 See supra notes 40–43 and accompanying text.
61 See, e.g., Leatherwood v. State, 108 So. 3d 1154, 1154–55 (Fla. Dist. Ct. App.

2013) (“Over Leatherwood’s objections, the State sought to introduce an appraisal
letter from a jeweler to establish the value of the stolen jewelry. However, the
State failed to properly qualify the letter as a business record pursuant to section
90.803(6) and section 90.902(11), Florida Statutes (2012).”); McKown, 46 So. 3d
at 175 (“While the victim had her bank statements with her in court, a predicate
was not laid for their authenticity or reliability . . . . Without laying that
foundation, the evidence is inadmissible hearsay.”); Moore v. State, 47 So. 3d
387, 388 (Fla. Dist. Ct. App. 2010) (reversing the trial court’s restitution order
where the victim “provided testimony regarding the prices she paid for the items
she purchased, estimates on the items she received as gifts, and a business card
on which an employee of a jewelry store had listed the values of the pieces of
jewelry she purchased from that store”); T.J.N. v. State, 977 So. 2d 770, 773 (Fla.
Dist. Ct. App. 2008) (reversing the trial court’s restitution award where the “State
presented the testimony of the insurance adjustor regarding the estimated cost
of repairs to the damage on the right side of the truck,” and “the insurance
adjustor revealed that he was basing his testimony on an estimate he had
received from an auto body shop”); House v. State, 614 So. 2d 677, 677 (Fla. Dist.
Ct. App. 1993) (reversing the trial court’s restitution order because “[m]uch of the
documentary evidence on which the state relied was subject to the hearsay rule
and failed to meet the strict requirements for admissibility under the ‘business
records’ exception, on which the state relied”).

                                        13
2. Indirect Evidence

    To establish fair market value indirectly, the State must present
evidence of each of the following four factors: “(1) original market cost; (2)
manner in which the item was used; (3) the general condition and quality
of the item; and (4) the percentage of depreciation.” 62 However, this
approach undoubtedly requires the testimony of the victim, another
witness, or both, 63 and thus encounters the same evidentiary
requirements mentioned above. 64 For example, if the victim received the
property by gift or inheritance, as is often the case with jewelry, the victim
may not be able to testify to the original market cost without speculating
or relying on hearsay. 65 In such circumstances, even if an appraiser is
hired, he or she will not be able to opine as to the item’s original market
cost without knowing the details of the item. 66 Furthermore, as in
Hawthorne, many victims will have a difficult time providing the
percentage of their property’s depreciation because such knowledge is
typically outside the scope of most laypeople’s experience. 67 Yet, if the
State fails to prove with specificity the percentage of depreciation and the
trial court makes a good-faith effort to depreciate the item, the appellate
court will reverse the restitution award because it is error for the court to
“arbitrarily” depreciate an item. 68

62 State v. Hawthorne, 573 So. 2d 330, 332 (Fla. 1991).
63 The victim will often be the only witness who can testify to the manner in which
the property was used and the general condition and quality of the property, for
example.
64 See supra Part III.A.1.
65 See Moore, 47 So. 3d at 388 (“The victim’s testimony regarding what the jewelry

store’s employee told her regarding the estimated value of the unrecovered jewelry
was improperly admitted hearsay. Additionally, the victim’s testimony regarding
the items she received as gifts was also insufficient to establish the items’ values
because the victim did not provide testimony of her own knowledge or opinion
regarding the values.” (citation omitted)); Peters v. State, 555 So. 2d 450, 451
(Fla. Dist. Ct. App. 1990) (“Absent a sufficient predicate showing a basis for such
an opinion, the mere opinion of the victims as to the value of their lost property,
as here, is insufficient to establish that value. Even less is it sufficient when,
again as here, the victims’ opinions to a large extent were ‘estimates.’”); Abbott v.
State, 543 So. 2d 411, 412 (Fla. Dist. Ct. App. 1989) (reversing the trial court’s
restitution order where “[t]he witness’ estimated figure was arrived at by
considering the cost to replace the jewelry, relying on purchase receipts, a partial
appraisal, magazines, and recent purchases of gold,” and where “she conceded
her lack of knowledge of current market value”).
66 See supra notes 41–43 and accompanying text.
67 See Hawthorne, 573 So. 2d at 332.
68 Thompson v. State, 68 So. 3d 425, 427 (Fla. Dist. Ct. App. 2011) (“Application

of such an arbitrary percentage of depreciation, without an explanation or record

                                         14
       B. “Fair Amount” Value

   “Fair amount” value is a more relaxed standard for measuring the
victim’s loss because it allows the court to consider “any appropriate
factor” in determining the amount of restitution to award. 69 However, even
when the trial court uses the “fair amount” standard to determine the
victim’s loss, the rules of evidence still apply. 70 Consequently, the court’s
consideration of any appropriate factor is limited by what evidence the
State can present in accordance with the rules.

    Moreover, these cases are rare because, as the court noted in
Hawthorne, “in most instances the victim’s loss and the fair market value
of the property at the time of the offense will be the same.” 71 Consequently,
the State must prove fair market value in the majority of cases.72
Therefore, more often than not, the State is faced with the dilemma of
either spending considerable time and expense to prove the value of
something that was unjustly taken from the victim or allowing the victim
to walk away empty-handed for a second time. 73


support, was an abuse of discretion.”); Kiefer v. State, 909 So. 2d 572, 574 (Fla.
Dist. Ct. App. 2005) (stating “there must be sufficient evidence in the record to
support application of a depreciation rate”).
69 See Glaubius v. State, 688 So. 2d 913, 915 (Fla. 1997) (stating that “the trial

court has discretion to take into account any appropriate factor in arriving at a
fair amount which will adequately compensate a victim for his or her loss and
further the purposes of restitution”).
70 See State v. Davis, 133 So. 3d 1101, 1106 n.6 (Fla. Dist. Ct. App. 2014)

(“Although federal law explicitly provides that the federal rules of evidence do not
apply at sentencing proceedings, the Florida Evidence Code contains no such
parallel provision.” (citation omitted)).
71 Hawthorne, 573 So. 2d at 333.
72 See id. (“Where it is determined that a restitution amount equal to fair market

value adequately compensates the victim or otherwise serves the purposes of
restitution, we agree with the court below that the value should be established
either through direct testimony or through evidence of the four factors
announced in Negron.” (footnote omitted)); Fletcher v. State, 800 So. 2d 309, 310
(Fla. Dist. Ct. App. 2001) (“Although courts are not bound to utilize the fair
market value method of valuation and may exercise such discretion as is required
to further the purposes of restitution, fair market value is to be used where it
would adequately compensate the victim. Absent evidence that the item taken
was a family heirloom or a new automobile, for which fair market value would
not adequately compensate the victim, fair market value is the valuation method
to be used.” (citation omitted)).
73 See supra Part III.A.


                                        15
            IV.    THE FOURTH DISTRICT COURT OF APPEAL’S PROPOSAL

   Unfortunately, when the State cannot prove the amount of a victim’s
loss, it causes unjust results that conflict with the purposes of restitution
proceedings. For example, in Phillips v. State, the defendant stole several
items of jewelry from the victim. 74 However, because the victim did not
purchase many of the items, she did not have “first-hand knowledge of the
[jewelry’s] purchase date, original value, or quality.” 75 As a result, to
determine the fair market value of her jewelry, the victim conducted online
research, located three or four pieces that were similar, and averaged their
prices. 76 Following a restitution hearing in which she testified to the
average prices of all of her stolen jewelry, the trial court ordered the
defendant to pay restitution to the victim in the amount of $20,511, the
total of her averages. 77

   On appeal, the Fourth District Court of Appeal of Florida (“Fourth DCA”)
reversed and remanded for a new evidentiary hearing, finding that as the
law currently exists, “the victim’s reliance on hearsay evidence from
websites was insufficient to establish the restitution amount.” 78 But in
doing so, the court acknowledged that establishing the restitution amount
without relying on hearsay was “practically impossible” and that reversal
“appears to have caused an unjust result for the victim, because she and
the state appear to have no other means by which to prove the restitution
amount” on remand. 79

   In addition, the court recognized that other Florida courts recently
reversed restitution awards, leaving “wholly innocent person[s] . . . with a
more difficult, if not impossible, path to recover their stolen items’ value.”80
Accordingly, the Fourth DCA recommended that the Florida Legislature
revisit section 775.089 and “consider providing trial courts with wider
discretion in setting the restitution amount.” 81 Specifically, the court
recommended adding the following language to section 775.089(7): “The
court is not bound by fair market value as the sole standard for
determining restitution amounts, but rather may exercise such discretion



74   Phillips v. State, 141 So. 3d 702, 703 (Fla. Dist. Ct. App. 2014) (per curiam).
75   Id. at 705.
76   Id. at 703.
77   Id. at 704–05.
78   Id. at 705.
79   Id.
80   Phillips, 141 So. 3d at 706.
81   Id.

                                           16
as required to further the purposes of restitution, including consideration
of hearsay.” 82

    When broken down, the Fourth DCA’s recommendation has three
components. First, it explicitly states that the court is not required to use
fair market value to measure the victim’s loss. 83 Second, it provides the
court with discretion necessary “to further the purposes of restitution” in
determining restitution amounts. 84 Third, it permits the use of hearsay
evidence in restitution proceedings. 85

       A. Advantages

   From a public policy standpoint, there are significant advantages and
only minor disadvantages to adopting the Fourth DCA’s more relaxed
framework to measuring and proving the amount of the victim’s loss in a
restitution hearing. One advantage is that it would alleviate onerous
requirements of proof in restitution hearings. Importantly, restitution is a
post-adjudication sentencing proceeding. 86 Therefore, the defendant’s
guilt has already been stipulated to or determined beyond a reasonable
doubt. In adopting section 775.089, it is unlikely that the Florida
Legislature intended to turn sentencing proceedings into “complicated,
prolonged trials of the normal civil variety.” 87     Instead, restitution
proceedings should be “expedient and reasonable, with uncertainties
resolved with a view toward achieving fairness to the victim.” 88 By giving


82 Id. In Schenk v. State, a case similar to Phillips, the Fifth District Court of
Appeal of Florida subsequently joined the Fourth DCA’s recommendation.
Schenk v. State, 150 So. 3d 275, 276 (Fla. Dist. Ct. App. 2014).
83 Phillips, 141 So. 3d at 706–07.
84 Id.
85 Id.
86 See White v. State, 21 So. 3d 77, 79 (Fla. Dist. Ct. App. 2009) (“A restitution

hearing is part of sentencing and requires the presence of counsel.” (citing
Moment v. State, 645 So. 2d 502, 503 (Fla. Dist. Ct. App. 1994))); Kittelson v.
State, 980 So. 2d 533, 535 (Fla. Dist. Ct. App. 2008) (stating that “[r]estitution is
a mandated part of sentencing”).
87 Cf. United States v. Gordon, 393 F.3d 1044, 1060 (9th Cir. 2004) (Fernandez,

J., concurring and dissenting); Dolan v. United States, 560 U.S. 605, 613 (2010)
(stating that a federal restitution “statute seeks speed primarily to help the
victims of crime and only secondarily to help the defendant.”); United States v.
Faxon, 689 F. Supp. 2d 1344, 1356 (S.D. Fla. 2010) (stating that restitution “is
not a civil matter even though restitution resembles a judgment for the benefit of
a particular victim”).
88 Gordon, 393 F.3d at 1048 (majority opinion); see also United States v.

Balentine, 569 F.3d 801, 804 (8th Cir. 2009) (stating that “the procedural

                                         17
the trial court broader discretion in determining restitution amounts, and
by allowing hearsay evidence to prove the amount of loss sustained by the
victim, the Fourth DCA’s proposal will save the State, the courts, and the
victim considerable time and expense at sentencing.

    Furthermore, while victims of crime may still pursue a damages award
in a separate, civil lawsuit, 89 the Florida Legislature specifically adopted
the restitution statute for the benefit of crime victims. 90 Restitution is
“intended to provide an additional alternative to reimburse a crime victim,
over and above traditional remedies like a civil lawsuit.”91 However,
holding the State to the same requirements of those in a full-fledged civil
lawsuit undermines the primary purpose of restitution because it makes
it less likely that the victim will be compensated for their loss. 92 As one
Florida judge explained, “the goal of the criminal justice system should be
to strive to allow full compensation to victims—not to make them victims
twice.” 93 Thus, adopting the Fourth DCA’s recommendation would not
only save considerable time and money, it would also limit unjust results
by better serving the primary purpose of the restitution statute. 94


requirements of [restitution statutes] are intended to protect victims, ‘not the
victimizers.’” (quoting United States v. Grimes, 173 F.3d 634, 639 (7th Cir.
1999))); Dohrmann v. United States, 442 F.3d 1279, 1281 (11th Cir. 2006)
(holding that “Apprendi does not apply to a restitution order”); cf. Norman v.
State, 468 So. 2d 1063, 1065–66 (Fla. Dist. Ct. App. 1985) (Nimmons, J.,
concurring and dissenting) (“The same rigidities in proof of value which are
required of the state in the trial of criminal cases involving value as an essential
element of the crime should not, in my view, always be imposed in the
determination of an appropriate amount of restitution.”).
89 FLA. STAT. § 775.089(8) (2014) (“An order of restitution hereunder will not bar

any subsequent civil remedy or recovery, but the amount of such restitution shall
be set off against any subsequent independent civil recovery.”).
90 State v. Hitchmon, 678 So. 2d 460, 462 (Fla. Dist. Ct. App. 1996).
91 Id. (citing Spivey v. State, 531 So. 2d 965, 967 (Fla. 1988)).
92 See Paroline v. United States, 134 S. Ct. 1710, 1724 (2014) (“Aside from the

manifest procedural differences between criminal sentencing and civil tort
lawsuits, restitution serves purposes that differ from (though they overlap with)
the purposes of tort law. Legal fictions developed in the law of torts cannot be
imported into criminal restitution and applied to their utmost limits without due
consideration of these differences.” (citation omitted)); supra Part III.
93 Thompson v. State, 68 So. 3d 425, 427 (Fla. Dist. Ct. App. 2011) (Polen, J.,

concurring).
94 See Santana v. State, 795 So. 2d 1112, 1113 (Fla. Dist. Ct. App. 2001) (“The

primary objectives of restitution awards pursuant to section 775.089 are to give
the criminal defendant an opportunity to make amends and to make the victim
of a crime whole, at least to the extent it is possible to do so.”).

                                        18
   Adopting the Fourth DCA’s suggestion would also give the trial court
the discretion it needs to establish a restitution amount that adequately
instills upon the defendant the consequences of his or her actions.95
Mandatory restitution is an important aspect of sentencing defendants, in
part, because it “impress[es] upon offenders that their conduct produces
concrete and devastating harms for real, identifiable victims.” 96 Moreover,
the secondary purpose of restitution is “to serve the rehabilitative,
deterrent, and retributive goals of the criminal justice system.” 97 The
Supreme Court of Florida previously recognized that “[t]he trial court is
best able to determine how imposing restitution may best serve those goals
in each case.” 98

   However, the current state of the law severely limits the trial court’s
ability to determine an appropriate restitution amount at sentencing.
Florida Rule of Criminal Procedure 3.720(b) provides that “[t]he court shall
entertain submissions and evidence by the parties that are relevant to the
sentence.” 99 To the extent that restitution is an important aspect of
sentencing, 100 hearsay evidence is often relevant to the defendant’s
sentence because, as mentioned above, it is helpful, and sometimes
necessary, to determine the amount of loss sustained by the victim as a
result of the defendant’s criminal offense. 101 Section 775.089 in fact
requires the court to consider the amount of the victim’s loss in
determining whether to order any restitution at all. 102 Nonetheless,


95  Cf. Paroline, 134 S. Ct. at 1729 (“District courts routinely exercise wide
discretion both in sentencing as a general matter and more specifically in
fashioning restitution orders.”); id. at 1734 (Roberts, C.J., dissenting) (“It is true
that district courts exercise substantial discretion in awarding restitution and
imposing sentences in general.”).
96 Id. at 1727 (majority opinion).
97 Glaubius v. State, 688 So. 2d 913, 915 (Fla. 1997).
98 Spivey v. State, 531 So. 2d 965, 967 (Fla. 1988); see also Noel v. State, 127 So.

3d 769, 774, 778 (Fla. Dist. Ct. App. 2013) (recognizing that “restitution to victims
is a central ‘penological interest’ of Florida criminal law,” and concluding that it
was not a denial of due process for the trial court to give the defendant “the
opportunity to mitigate ‘the severity of an otherwise appropriate sentence’ by
paying restitution to the victims in an amount he indicated he could afford”),
review granted, 153 So. 3d 907 (Fla. 2014) (unpublished table decision).
99 FLA. R. CRIM. P. 3.720(b); see also State v. Davis, 133 So. 3d 1101, 1106 n.6

(Fla. Dist. Ct. App. 2014) (stating that rule 3.720(b) “does not define the term
‘submissions’ and neither expressly permits nor prohibits the admission of
hearsay evidence”).
100 See supra notes 96–97 and accompanying text.
101 See supra notes 49–52, 55 and accompanying text.
102 FLA. STAT. § 775.089(6)(a) (2014).


                                         19
although hearsay evidence is admissible in other sentencing proceedings
in Florida, such as probation revocation hearings 103 and capital
sentencing proceedings, 104 hearsay is still inadmissible in restitution
hearings. 105 As a result, when the State cannot prove the amount of the
victim’s loss without relying on hearsay, the court cannot order the
defendant to pay restitution, and the defendant may not appreciate the
full effect of his illegal acts.

    Relatedly, once the court has determined that monetary restitution is
appropriate in an individual case, it should have broad discretion in
fashioning a restitution order. 106 In Hawthorne, the court held that the
trial court is not tied to fair market value as the sole standard for
measuring the victim’s loss, but rather, it “may exercise such discretion
as required to further the purposes of restitution.” 107 However, the court
limited its holding to instances when fair market value is an inappropriate
measure of the victim’s loss. 108 Therefore, in most instances, the trial
court must use fair market value to determine the amount of the victim’s
loss, which means that the State must present a witness with personal
knowledge of the fair market value of the victim’s loss, or the State must
present evidence of all four fair market value factors. 109

   While the holding in Hawthorne certainly improved          the law governing
restitution proceedings, it failed to address instances       when fair market
value may adequately reflect the victim’s loss, but the       State is unable to
meet the demanding criteria to prove fair market               value. In such

103 Russell v. State, 982 So. 2d 642, 646 (Fla. 2008) (“It is undisputed that
hearsay evidence is admissible in a probation revocation hearing to prove a
violation of probation.”).
104 FLA. STAT. § 921.141(1) (2014) (“Any such evidence which the court deems to

have probative value may be received, regardless of its admissibility under the
exclusionary rules of evidence, provided the defendant is accorded a fair
opportunity to rebut any hearsay statements.”).
105 See sources cited supra notes 53–54.
106 Paroline v. United States, 134 S. Ct. 1710, 1727–28 (2014) (quoting 18 U.S.C.

§ 3664(a)); see source cited supra note 95.
107 State v. Hawthorne, 573 So. 2d 330, 333 (Fla. 1991).
108 See id. (“Where it is determined that a restitution amount equal to fair market

value adequately compensates the victim or otherwise serves the purposes of
restitution, we agree with the court below that the value should be established
either through direct testimony or through evidence of the four factors
announced in Negron.” (footnote omitted)).
109 See id. (“We recognize that in most instances the victim’s loss and the fair

market value of the property at the time of the offense will be the same.”); supra
Part III.A.

                                        20
circumstances, the victim is left without recourse, and the defendant
receives a windfall for his actions. Rather than give the court broad
discretion in rare instances when fair market value is inappropriate to
measure the victim’s loss, the court should have discretion to take into
account any appropriate factor in all instances. 110 The Fourth DCA’s
recommendation simply adopts the approach taken in Hawthorne, but
permits it in all circumstances. This is a reasonable approach considering
the fact that case law subsequent to Hawthorne suggests that the
defendant can easily defeat the State’s presentation of evidence concerning
fair market value by objecting to hearsay or speculation, or by noting that
not all of the factors pertaining to fair market value have been proved by
competent, substantial evidence. 111

       B. Disadvantages

    A disadvantage of the Fourth DCA’s recommendation is that it failed to
provide an alternative measure of the victim’s loss. Although the Fourth
DCA reiterated the holding in Hawthorne that the trial court is not tied to
“fair market value as the sole standard for determining restitution
amounts,” 112 it did not say what standard the court should use when fair
market value is not used.        Nevertheless, case law subsequent to

110 See Paroline, 134 S. Ct. at 1728 (“There are a variety of factors district courts
might consider in determining a proper amount of restitution, and it is neither
necessary nor appropriate to prescribe a precise algorithm for determining the
proper restitution amount at this point in the law’s development. Doing so would
unduly constrain the decisionmakers closest to the facts of any given case.”);
United States v. Boccagna, 450 F.3d 107, 116 (2d Cir. 2006) (“Notwithstanding
the general reliability of fair market value as a measure of property value, in some
circumstances other measures of value may more accurately serve the statutory
purpose to ensure a crime victim’s recovery of the full amount of his loss.”).
111 See, e.g., Hunter v. State, 48 So. 3d 174, 176 (Fla. Dist. Ct. App. 2010) (“The

trial court erred in establishing the amount of restitution because the victim
could not identify all of the items that had been taken, relied on hearsay evidence
to establish value, and failed to take into account depreciation.”); Mansingh v.
State, 588 So. 2d 636, 638 (Fla. Dist. Ct. App. 1991) (reversing the trial court’s
restitution order “because the state presented evidence on only one of the
[Negron] four factors”); see also Thompson v. State, 68 So. 3d 425, 427 (Fla. Dist.
Ct. App. 2011) (Polen, J., concurring) (stating that “objections of hearsay as to
sources of information as to value [and the] absence of receipts for items bought
years earlier” “make it more difficult for a victim to prove the ‘fair market value’
of their stolen property”); cf. Matthew C. Lucas, Valuing the Marital Home, 88,
no.4 FLA. B.J., 8, 9 (2014) (stating that “[d]ivining the most probable price for a
property’s fair market value poses an interesting challenge in the law” in part
because “the analysis inherently requires elements of speculation”).
112 Hawthorne, 573 So. 2d at 333.


                                         21
Hawthorne established that “fair amount” value is the appropriate,
alternative measure to fair market value. 113 As with replacement value
and retail value, “fair amount” value may ultimately be the same as fair
market value. 114 Yet, the method of proof of “fair amount” value is much
more conducive to accomplishing the purposes of restitution because it is
intentionally broad and allows the court to consider any appropriate factor
in determining the amount of restitution to award. 115 Thus, the fact that
the Fourth DCA did not provide an alternative measure of value should
not prevent adoption of the Fourth DCA’s proposal; “fair amount” value is
implicitly the measure of value under the Fourth DCA’s proposal.

   A related disadvantage of the Fourth DCA’s proposal is that without a
definite standard to guide the court’s determination of the victim’s loss,
the trial court may appear to have too much discretion, which may result
in a windfall for the victim. However, at least in theft cases, it is highly
unlikely that a trial court’s restitution award would exceed any possible
judgment in a civil action because, in a civil action, the victim may claim
treble damages and attorneys’ fees in addition to the property loss.116
Moreover, safeguards in the law already protect against trial courts
abusing their discretion. For example, even when the court uses “fair
amount” value to determine the victim’s loss, the trial court’s restitution
order must still be supported by competent, substantial evidence. 117 In
addition, the trial court may only award restitution in an amount causally
connected to the defendant’s crime. 118 Thus, even with more discretion,
courts would not be able to award restitution in an arbitrary amount that
favors the victim at the expense of the defendant’s right to due process. 119

   Moreover, while the purpose of restitution is not to create a windfall for
the victim, 120 it is certainly not to create one for the defendant either. In

113 See Glaubius v. State, 688 So. 2d 913, 915 (Fla. 1997).
114 See supra notes 23–24, 26 and accompanying text.
115 See Glaubius, 688 So. 2d at 915; text accompanying supra note 31.

Importantly, section 775.089, Florida Statutes, is not subject to a void-for-
vagueness challenge because it does not penalize any conduct. See State v.
Brake, 796 So. 2d 522, 527 (Fla. 2001) (“In order for a criminal statute to
withstand a void-for-vagueness challenge, the language of the statute must
provide adequate notice of the conduct it prohibits when measured by common
understanding and practice.”).
116 See S.M. v. State, 159 So. 3d 966, 968 n.1 (Fla. Dist. Ct. App. 2015) (citing §

772.11(1), Fla. Stat. (2012)).
117 See supra note 18 and accompanying text.
118 See supra note 11 and accompanying text.
119 See supra note 17 and accompanying text.
120 Glaubius, 688 So. 2d at 916.


                                        22
other contexts, Florida laws are much more forgiving where one party is
the cause of a lack of evidence favorable to the other party. For example,
section 90.804, Florida Statutes, provides that hearsay evidence is
admissible if the opposing party “wrongfully caused, or acquiesced in
wrongfully causing, the declarant’s unavailability as a witness, and did so
intending that result.” 121 Case law provides that criminal charges must
be dismissed if the prosecution destroys exculpatory evidence in bad
faith. 122 There are even independent causes of action, both civil and
criminal, for intentionally destroying evidence that hinders the opposing
party’s ability to prove its case. 123 The principle that supports all of these
laws is that the party responsible for the intentional destruction of
evidence should not benefit from its bad-faith actions, and the party
relying on the evidence should not be penalized for the bad-faith acts of
another. Similarly, in the context of restitution proceedings, the State has
proven or the defendant concedes that he has wrongfully caused loss or
damage to property that could otherwise be used to determine its value.
Thus, in light of the aforementioned principle, the law should be less
concerned with providing windfalls to victims, and more tolerant of victims’
inability to testify to the amount of restitution when their inability is due
largely to no fault of their own. The Fourth DCA’s suggestion simply
acknowledges this principle by alleviating strict requirements of proof in a
restitution hearing.

   Another potential disadvantage of the Fourth DCA’s suggestion
concerns the admission of hearsay. When hearsay is permissible as the

121 FLA. STAT. § 90.804(f) (2014).
122  State v. Milo, 596 So. 2d 722, 723 (Fla. Dist. Ct. App. 1992) (“Willful,
intentional destruction of evidence requires sanctions. Bad faith destruction of
evidence requires dismissal of the charges.” (citing Louissaint v. State, 576 So.
2d 316 (Fla. Dist. Ct. App. 1990))).
123 See FLA. STAT. § 918.13 (2014) (providing that it is a third-degree felony for

any “person, knowing that a criminal trial or proceeding or an investigation by a
duly constituted prosecuting authority, law enforcement agency, grand jury or
legislative committee of this state is pending or is about to be instituted, [to] . . .
[a]lter, destroy, conceal, or remove any record, document, or thing with the
purpose to impair its verity or availability in such proceeding or investigation”);
Royal & Sunalliance v. Lauderdale Marine Ctr., 877 So. 2d 843, 845 (Fla. Dist.
Ct. App. 2004) (“The essential elements of a [civil] spoliation of evidence claim
are: ‘(1) existence of a potential civil action, (2) a legal or contractual duty to
preserve evidence which is relevant to the potential civil action, (3) destruction of
that evidence, (4) significant impairment in the ability to prove the lawsuit, (5) a
causal relationship between the evidence destruction and the inability to prove
the lawsuit, and (6) damages.’” (quoting Hagopian v. Publix Supermarkets, Inc.,
788 So. 2d 1088, 1091 (Fla. Dist. Ct. App. 2001))).

                                          23
only evidence offered to support the trial court’s award of restitution, the
result may be questionable. For example, whether due to poor memory,
improper incentive, or other reasons, victims may exaggerate the true
value of their property. 124 The reliability of evidence is in fact the core
concern underlying the general exclusion of hearsay evidence. 125

   Concern for the reliability of hearsay evidence should not prevent
adoption of the Fourth DCA’s proposal, however, because Florida courts
already require that for hearsay to be admissible, it must contain “some
minimal indicia of reliability.” 126 In addition, not all hearsay is a verbal
assertion by the witness. In many instances, the State offers documentary
evidence of value, which is generally considered more reliable than oral
hearsay, 127 and is verifiable by the defendant and the court, but the
evidence is nevertheless turned away due to the general exclusion of
hearsay in restitution proceedings. 128 In such circumstances, if the trial
court finds the documentary evidence to be sufficiently reliable, it is
unclear why the victim or the State is nonetheless required to incur the
expense and inconvenience of presenting an additional witness to recount
what is already stated in the document.

   A related disadvantage of allowing hearsay, including documentary
hearsay, is that the defendant may not have the opportunity to cross-
examine the declarant on matters such as the declarant’s qualifications



124 Schering Corp. v. Pfizer Inc., 189 F.3d 218, 232 (2d Cir.), as amended on reh’g,
(Sept. 29, 1999) (“The hearsay rule is generally said to exclude out-of-court
statements offered for the truth of the matter asserted because there are four
classes of risk peculiar to this kind of evidence: those of (1) insincerity, (2) faulty
perception, (3) faulty memory and (4) faulty narration, each of which decreases
the reliability of the inference from the statement made to the conclusion for
which it is offered.” (citations omitted)).
125 See id.; Lee v. Illinois, 476 U.S. 530, 543 (1986) (stating that hearsay evidence

that “does not fall within ‘a firmly rooted hearsay exception’ . . . is thus
presumptively unreliable”).
126 Box v. State, 993 So. 2d 135, 139 (Fla. Dist. Ct. App. 2008); accord McKown

v. State, 46 So. 3d 174, 175 (Fla. Dist. Ct. App. 2010).
127 See United States v. Redd, 318 F.3d 778, 784 (8th Cir. 2003) (“Documentary

hearsay evidence generally provides greater indicia of reliability than oral
hearsay. This distinction is reflected in numerous long-standing exceptions to
the hearsay rule.”).
128 See, e.g., Butler v. State, 970 So. 2d 919, 921 (Fla. Dist. Ct. App. 2007)

(“Because the written estimate was inadmissible hearsay evidence, we hold that
the trial court erred in admitting the estimate and basing the value of the exterior
door solely on this evidence.”).

                                          24
and his or her methods or factors used to value the property. 129 However,
this concern should also not prevent adoption of the Fourth DCA’s
proposal for at least two reasons. First, at least one Florida court has
previously concluded that the Sixth Amendment’s Confrontation Clause
“does not apply in restitution hearings because restitution proceedings are
an aspect of sentencing.” 130 Therefore, the defendant does not have a
constitutional right to confront witnesses against him in a restitution
hearing. 131

    Second, the trial court’s ability to discern truth from falsity and to
assign weight to evidence in a restitution hearing should not be
underestimated or substituted. For the same reason appellate courts defer
to the trial court’s determinations of facts in general, the trial court’s
decisions concerning the credibility of witnesses and the weight to give to
evidence in restitution proceedings should not be second-guessed on
appeal. 132 While sitting as trier of fact, the trial court is in the best position
to evaluate the victim’s testimony or other evidence offered by the State.133

129 See Hochstadt v. Sanctuary Homeowner’s Ass’n, Inc., 761 So. 2d 1163, 1165
(Fla. Dist. Ct. App. 2000) (stating that “the opinion of the appraiser as a witness
would be subject to cross-examination as to qualifications, as well as in other
areas, and that safeguard alleviates the concerns we have about admitting only
the records”); see also BLACK’S LAW DICTIONARY 838 (10th ed. 2014) (stating that
“[t]he chief reasons for the [hearsay] rule are that out-of-court statements
amounting to hearsay are not made under oath and are not subject to cross-
examination”).
130 Box v. State, 993 So. 2d 135, 139 (Fla. Dist. Ct. App. 2008). The court also

reiterated that “the State is still not permitted to admit any and all hearsay” and
that “the trial court may only allow hearsay having some minimal indicia of
reliability.” Id.
131 Id.
132 See Shaw v. Shaw, 334 So. 2d 13, 16 (Fla. 1976) (“It is clear that the function

of the trial court is to evaluate and weigh the testimony and evidence based upon
its observation of the bearing, demeanor and credibility of the witnesses
appearing in the cause. It is not the function of the appellate court to substitute
its judgment for that of the trial court through re-evaluation of the testimony and
evidence from the record on appeal before it. The test . . . is whether the judgment
of the trial court is supported by competent evidence. Subject to the appellate
court’s right to reject ‘inherently incredible and improbable testimony or
evidence,’ it is not the prerogative of an appellate court, upon a de novo
consideration of the record, to substitute its judgment for that of the trial court.”
(footnote omitted)).
133 See Stephens v. State, 748 So. 2d 1028, 1034 (Fla. 1999) (“We recognize and

honor the trial court’s superior vantage point in assessing the credibility of
witnesses and in making findings of fact. The deference that appellate courts
afford findings of fact based on competent, substantial evidence is an important

                                         25
Moreover, even when hearsay is admissible in a restitution proceeding, the
defendant may cross-examine any witness that does testify and may
introduce contrary evidence—including reliable hearsay evidence—in his
or her defense. 134    Thus, with these considerations in mind, the
admissibility of hearsay in a restitution proceeding should not prevent the
adoption of the Fourth DCA’s recommendation.

   ****

                                   CONCLUSION

   Due to the unjust results that can occur when the court has limited
discretion and when the State must meet onerous requirements to prove
the amount of loss sustained by the victim of a crime, the Florida
Legislature should revise section 775.089 to better conform to the
purposes of restitution proceedings, which are both compensatory and
punitive. Recognizing that many victims cannot testify to the fair market
value of their property, the Fourth DCA recommended providing the trial
court with broader discretion to further the purposes of restitution. In
addition, the Fourth DCA’s proposal does not require the court to use fair
market value in determining the amount of the victim’s loss and expressly
permits the admission of hearsay evidence in restitution proceedings. As
such, the Fourth DCA’s proposal offers a great starting point in revising
section 775.089 because it relaxes both the measurement of value and the
method of proof in restitution proceedings. However, the Fourth DCA’s
proposal does not explicitly address important concerns, such as the
appropriate measure of value, the lack of reliability of hearsay evidence,
and the defendant’s right to due process. Thus, in light of the concerns
mentioned above, the Florida Legislature should adopt the Fourth DCA’s
proposal, but with the following three caveats that incorporate aspects of
the federal standard. 141

principle of appellate review.” (citations omitted)); see, e.g., Henry v. State, 840
So. 2d 1170, 1171 (Fla. Dist. Ct. App. 2003) (stating that the trial court concluded
that the defendant’s testimony concerning the amount of money she
misappropriated “lacked credibility”).
134 See Del Valle v. State, 80 So. 3d 999, 1020 (Fla. 2011) (Lewis, J., dissenting)

(“A defendant has the ability to defeat the imposition of a restitution order, or the
amount, if he or she successfully contests the validity of any damage or loss
allegedly caused to a victim by the defendant’s crime.”); Faurisma v. State, 61 So.
3d 497, 497–98 (Fla. Dist. Ct. App. 2011 ) (per curiam) (reversing the trial court’s
restitution order because the defendant was not given an opportunity to be
heard).
141 As with any change in statutory law, there may be unanticipated problems

that arise in the future. However, because the recommendation mirrors the

                                         26
    First, because the Fourth DCA’s proposal does not provide an
alternative measure to fair market value, the statute should explain that
the court may use “fair amount” value to determine the amount of the
victim’s loss in all circumstances. 142 Second, although some Florida
courts already provide that hearsay must contain “some minimal indicia
of reliability” to be admissible in a restitution hearing, it would be wise to
include this language explicitly in the statute as well. 143 Third, because
the Confrontation Clause does not apply at sentencing, the Legislature
should consider providing the defendant with an opportunity to rebut or
refute any hearsay evidence that is offered by the State, as is already done
in Florida capital sentencing proceedings. 144

   In accordance with the Fourth DCA’s recommendation, and the caveats
mentioned above, section 775.089(7) should ultimately read as follows,
with the suggested changes in italics:

      Any dispute as to the proper amount or type of restitution
      shall be resolved by the court by the preponderance of the
      evidence. In determining restitution amounts, the court may
      exercise discretion as required to further the purposes of
      restitution. The court may consider any appropriate factor in
      awarding a fair amount that adequately compensates the
      victim. 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 burden of demonstrating the present financial
      resources and the absence of potential future financial
      resources of the defendant and the financial needs of the
      defendant and his or her dependents is on the defendant. The
      burden of demonstrating such other matters as the court

federal standard, there is an entire body of federal case law that will aid in
addressing these problems.
142 For purposes of this Article, “fair amount” value and a “reasonable

approximation” of value are treated as the same, at least in terms of monetary
value measurements. See supra note 137.
143 This does not mean that the hearsay evidence must meet an established

exception. See supra note 139. “To show that the evidence lacks ‘minimal indicia
of reliability’ a defendant must establish ‘(1) that the challenged evidence is
materially false, and (2) that it actually served as a basis for the [restitution
order].’” Bourne, 130 F.3d at 1447 (quoting Hairston, 888 F.2d at 1353).
“Whether hearsay evidence is reliable, and thus admissible, is a determination
left to the discretion of the sentencing judge.” United States v. Gerstein, 104 F.3d
973, 978 (7th Cir. 1997).
144 See supra notes 57, 104, 130, 139.


                                        27
      deems appropriate is upon the party designated by the court
      as justice requires.      Hearsay evidence is admissible in
      restitution proceedings if the hearsay evidence is found by the
      court to have a minimal indicia of reliability. The defendant
      may refute hearsay evidence offered by the state attorney.

In addition, because the above proposal permits the court to use discretion
“to further the purposes of restitution,” but the purposes of restitution do
not appear anywhere in section 775.089, the Florida Legislature should
explicitly include the purposes of restitution at the forefront of the statute.
With the implementation of these suggested changes, the purposes of
section 775.089 are more likely to be accomplished, which means that
defendants who cause loss to innocent victims are less likely to receive a
windfall for their criminal actions and that victims of crime are more likely
to be compensated for their losses.

                             *        *         *

   Not final until disposition of timely filed motion for rehearing.




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