       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                               E.G., a child,
                                Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                       Nos. 4D14-1499, 4D14-1500
                             and 4D14-1501

                            [December 9, 2015]

   Consolidated appeals from the Circuit Court for the Fifteenth Judicial
Circuit, Palm Beach County; Kathleen J. Kroll, Judge; L.T. Case Nos.
502012CJ003823A, 502013CJ001598A, and 502014CJ000133A.

  Carey Haughwout, Public Defender, and Zainabu Rumala, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers,
Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

   We reverse appellant’s conviction of grand theft because the state failed
to offer sufficient evidence that the value of the stolen cell phone was $300
or more. § 812.014(2)(c), Fla. Stat. (2014). Although the victim testified
that he had his original sales receipt, the state neglected to ask him about
the original purchase price of the phone, a fact which, when combined
with testimony about the phone’s age, condition, and how it had been
customized, would have supported a finding that the “market value” of the
phone “at the time and place of the offense” was at least $300. §
812.012(10)(a)(1), Fla. Stat. (2014).

   The state may not rely on the evidence presented about the replacement
cost of the phone. Replacement cost “‘is not appropriate under the theft
statute unless the state first presents evidence that the market value could
not be satisfactorily ascertained.’” Tindal v. State, 145 So. 3d 915, 920
(Fla. 4th DCA 2014) (quoting A.D. v. State, 30 So. 3d 676, 678 (Fla. 3d
DCA 2010)). “‘This step [is] necessary to justify the value of the loss being
ascertained by the cost of replacement of the property.’” A.D., 30 So. 3d at
678 (quoting Robinson v. State, 686 So. 3d 1370, 1373 (Fla. 5th DCA
1997)). The state presented no evidence that the market value of the phone
could not be satisfactorily ascertained.

   We reverse the finding of grand theft and remand for the entry of a
conviction for petit theft. The circuit court shall reconsider its ruling on
the violation of probation in light of the petit theft conviction. We affirm
the restitution order because “the proper amount or type of restitution
shall be resolved by the court by the preponderance of the evidence,” and
not beyond a reasonable doubt. § 775.089(7), Fla. Stat. (2014); see §
985.437, Fla. Stat. (2014); A.G. v. State, 718 So. 2d 854, 855 (Fla. 4th DCA
1998) (stating that restitution in a juvenile proceeding under section
39.054(1)(f), Florida Statutes (1995), the predecessor to current section
985.437, “is treated the same as restitution in adult proceedings under
section 775.089”). Under the lower standard of proof, there was sufficient
evidence of value to support the restitution award.

   Reversed in part, affirmed in part, and remanded.

GROSS, MAY and CONNER, JJ., concour.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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