       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                           ROBERT MORRILL,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                               No. 4D18-781

                               [April 3, 2019]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Timothy L. Bailey, Judge; L.T. Case No.
17000131CF10A.

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

  Ashley B. Moody, Attorney General, Tallahassee, and Joseph D.
Coronato, Jr., Assistant Attorney General, West Palm Beach, for appellee.

FORST, J.

    Appellant Robert Morrill pled guilty to dealing in stolen property, false
ownership, grand theft, and possession of a controlled substance. He
pleaded in exchange for a withhold of adjudication, three years’ probation,
and his agreement to pay restitution. He raises four issues on appeal, and
we reverse on one (and affirm without discussion regarding the other
issues). We agree that the trial court erred in determining that the State
met its burden of proving a stolen necklace was worth $2,200, and remand
for further proceedings.

                               Background

   At the change of plea hearing, the victim testified that his twenty-four
inch, eighteen karat gold, Gucci necklace was taken. He noted that it had
been given to him by his deceased partner as a gift, and thus had
“extreme[]” sentimental value. As it was a gift, he did not have a sales
receipt. The victim estimated its value at $2,200, explaining that “I priced
other ones out for replacements and that was between 22 and 2400.”
   When asked, “Did you ever have it valued by any jeweler or any other
way?,” the victim responded that he “went on to comparison of what I
had[,] that is how I got the evaluation, value of it.” He did not proffer any
documentation or evidence of the necklace’s price, hearsay or otherwise.
The victim did, however, note that he had possessed a photo of the
necklace prior to the theft, but he had given it to law enforcement and it
had not been returned.

   Defense counsel objected, arguing the testimony did not establish the
necklace’s fair market value and was based on hearsay. The trial court
found that property owners are generally qualified to testify as to their
property’s value. It concluded the victim corroborated his opinion with
online research and ordered $2,200 in restitution for the necklace. This
appeal followed.

                                  Analysis

   “A trial court’s determination of the amount of restitution is reviewed
for an abuse of discretion. The state bears the burden of proving the
amount of restitution, and the restitution award must be supported by
competent substantial evidence.” Davis v. State, 244 So. 3d 374, 377 (Fla.
4th DCA 2018) (citation omitted). The evidence of restitution “must be
established through more than mere speculation; it must be based on
competent evidence.” Bennett v. State, 944 So. 2d 524, 525 (Fla. 4th DCA
2006) (quoting Glaubius v. State, 688 So.2d 913, 916 (Fla. 1997)).

    Fair market value is the standard for restitution, unless it would
inadequately compensate the victim, such as theft of a family heirloom.
Davis, 244 So. 3d at 377. While victims are qualified to testify to the value
of their property, they must testify directly to fair market value or establish
it with 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.” State v. Hawthorne,
573 So. 2d 330, 332 (Fla. 1991).

   This Court has remanded after the failure to prove some of the four
elements numerous times. See, e.g., Toole v. State, 44 Fla. L. Weekly D512
(Fla. 4th DCA Feb. 20, 2019) (testimony as to the original price and the
“guesstimated” replacement value determined to be inadequate); T.D.C. v.
State, 117 So. 3d 809, 811 (Fla. 4th DCA 2013) (remanding because the
court did not have evidence of the fair market value at the time of the
theft); Thompson v. State, 68 So. 3d 425, 427 (Fla. 4th DCA 2011)
(remanding when only evidence of purchase date and price was presented);

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Wolff v. State, 981 So. 2d 651, 653 (Fla. 4th DCA 2008) (remanding due to
“absen[ce] of any evidence of the fair market value of the stolen
equipment”).

    “Where restitution is part of a plea bargain, it should be liberally
construed in favor of making the victim whole.” Yaun v. State, 898 So. 2d
1016, 1017 (Fla. 4th DCA 2005) (quoting Hercule v. State, 655 So. 2d 1256,
1257 (Fla. 3d DCA 1995)). Additionally, “where a plea agreement leaves
restitution to the trial court’s discretion, reversal is not warranted absent
a clear showing that the trial court abused its discretion.” Id. (citing
Montalvo v. State, 705 So. 2d 984, 986 (Fla. 3d DCA 1998)). Nonetheless,
even under this more liberal standard of review, as the State in this case
failed to provide competent evidence as to any of the Hawthorne factors,
we must conclude that the trial court’s holding constitutes an abuse of
discretion.

    The victim expressly testified to an estimated replacement value of the
necklace, not the original market cost (which was unknown). This
“estimate” was based merely on the victim noting that he had “priced other
ones out for replacements and that was between 22 and 2400.” Although
the court found that victim corroborated his opinion with online research,
the victim did not identify the sources that he relied upon for his estimates.
If he did, in fact, use the internet, there was no evidence of the details of
his internet search and the results of that search. Regardless of how the
victim made the comparison to reach his estimate, the victim appears to
have relied entirely on hearsay.

   Using websites, catalogs, or contacts with non-witnesses to price the
value of an item constitutes reliance on hearsay. Phillips v. State, 141 So.
3d 702, 704 (Fla. 4th DCA 2014). “Hearsay evidence may not be used to
determine the amount of restitution when there is a proper objection by
the defense to the hearsay evidence.” Id. (quoting Conway v. State, 115
So. 3d 1058, 1059 (4th DCA 2013)). Here, defense counsel made several
hearsay objections to the State’s evidence regarding the necklace’s value.

   The State presented no testimony as to the condition, depreciation, or
the manner of use. Importantly, the State did not provide the weight of
the necklace (which may have been estimated from a competent
description of the necklace), nor did it seek to establish the price of gold at
the time of the theft.

   Our recent decision in Toole recognized that “proving restitution
continues to be difficult for victims, and receiving compensation for their
loss continues to be elusive.” 44 Fla. L. Weekly D512. The Toole opinion

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acknowledges the recent amendment of the Florida Constitution to
incorporate “Marsy’s Law,” and the opinion certifies, as a question of great
public importance, whether the Hawthorne “formula for determining
restitution based on the fair market value of the victim’s property [is] still
viable after the passage of Amendment 6 (Marsy’s Law) . . . .” Id. at D513
(citing Art. I, § 16, Fla. Const. (2018)).

   In the meantime, we note Amendment 6 includes a requirement that
victims are to be “provided with assistance collecting restitution.” Id. at
D512 (citing Art. I, § 16). Here, the State did not satisfactorily provide this
assistance. In fact, there is no evidence that the State attempted to retrieve
a photo of the stolen necklace from local law enforcement. The photo may
have assisted the victim in establishing the condition and the thickness
and/or weight of the stolen necklace. Nor did the State provide support
for the victim’s effort to establish the replacement cost as more than a
mere “guesstimate.” See id. (holding that the lack of testimony about
manner of use, general condition, quality and depreciation, as well as the
“guesstimates” of replacement cost was insufficient to establish fair
market value.).

                                 Conclusion

    We recognize that imposing evidentiary hurdles to the establishment of
the value of a stolen item somewhat serves to put the victim on trial.
Nonetheless, as set forth above, the evidence presented of the necklace’s
fair market value was negligible. We thus reverse and remand to the trial
court for a new restitution hearing. See, e.g., McInerney v. State, 213 So.
3d 933, 936 (Fla. 4th DCA 2017) (reversing and remanding for a new
hearing on the amount of restitution); David v. State, 187 So. 3d 947, 947
(Fla. 4th DCA 2016) (same).

   Affirmed in part, reversed in part, and remanded for a new restitution
hearing.

GROSS and CONNER, JJ., concur.

                             *        *         *

   Not final until disposition of timely filed motion for rehearing.




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