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


                                              IN THE DISTRICT COURT OF APPEAL
                                              OF FLORIDA
                                              SECOND DISTRICT



TIMOTHY WAYNE WIECHERT,                       )
                                              )
              Appellant,                      )
                                              )
v.                                            )       Case No. 2D14-1937
                                              )
STATE OF FLORIDA,                             )
                                              )
              Appellee.                       )
                                              )

Opinion filed July 1, 2015.

Appeal from the Circuit Court for Lee
County; Bruce E. Kyle, Judge.

Howard L. Dimmig, II, Public Defender, and
Allyn M. Giambalvo, Assistant Public
Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Jason M. Miller, Assistant
Attorney General, Tampa, for Appellee.



VILLANTI, Chief Judge.


              Timothy Wayne Wiechert appeals his convictions for one count of burglary

of an unoccupied dwelling and one count of third-degree grand theft. We affirm

Wiechert's burglary conviction without comment. However, because the State failed to

introduce sufficient evidence to prove the value of the stolen items beyond a reasonable
doubt, as statutorily required, we must reverse Wiechert's conviction for third-degree

grand theft and remand for entry of a conviction for petit theft and resentencing.

              The State chose to charge Wiechert with grand theft under section

812.014(2)(c)(1), Florida Statutes (2013), which requires the State to prove through

competent, substantial evidence that the value of the property stolen was "$300 or

more, but less than $5,000."1 At trial, the victim testified that a safe was stolen from his

residence, for which he had paid "around a hundred dollars or so, a hundred-fifty at

Home Depot." He believed that he had purchased the safe about two years before the

theft. Inside the safe were "birth certificates, Social Security cards, titles to vehicles –

you know, important paperwork, stuff like that." He said that if he had to replace the

items, it would be "whatever the Tax Collector's Office would charge you which is about

a hundred, hundred-and-a-half or so." He testified that he had replaced one of the titles

and that he recalled having to pay "a hundred dollars or so," but he also testified that

"[a]t the time I was transferring the title over to my son, so I don't know exactly how

much" was for the transfer rather than the replacement of the title.

              In addition to the safe and its contents, the victim testified that the thief

took one pair of "work" Levi's jeans, two jackets, one t-shirt, and a grey duffle bag from

his house. The victim had paid $200 each for the jackets, one of which was purchased

in 2008 and the other in 2007. He paid about $20 for the t-shirt the same year it was

stolen. He did not recall when he purchased the jeans or for how much, and he



              1
               We note that the State could have chosen to charge Wiechert with third-
degree grand theft under section 812.014(2)(d), Florida Statutes (2013), which makes it
a third-degree felony to steal property valued at $100 or more, but less than $300, from
a dwelling. However, the State did not charge Wiechert under this statute; therefore, it
was obligated to prove that the value of the items stolen was $300 or more.


                                             -2-
believed that the duffle bag had been a promotional gift from one of his suppliers. The

State did not elicit any testimony concerning the condition of any of the clothing or its

replacement cost or current value.

              At the close of the State's case, Wiechert moved for a judgment of

acquittal, arguing that the State had failed to present sufficient evidence of value to

support a conviction for grand theft. The trial court denied this motion, and Wiechert

was convicted as charged. He now appeals, arguing that the trial court erred by

denying his motion for judgment of acquittal on the grand theft charge because the

State's proof of value was legally insufficient.

              The degree of a theft conviction generally depends on proof of the value of

the items stolen, and hence the value of the stolen goods constitutes an element of the

crime that the State must prove beyond a reasonable doubt. See, e.g., Negron v. State,

306 So. 2d 104, 108 (Fla. 1974), receded from on other grounds by F.B. v. State, 852

So. 2d 226 (Fla. 2003); Carter v. State, 77 So. 3d 849, 851 (Fla. 2d DCA 2012). "Value

means the market value of the property at the time and place of the offense or, if such

cannot be satisfactorily ascertained, the cost of replacement of the property within a

reasonable time after the offense." § 812.012(10)(a)(1). When direct testimony

concerning fair market value is not available, the State may establish value through

evidence of "(1) original market cost; (2) the 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). Hence, "[f]air market value takes into

consideration not only the purchase price, but the manner in which the item was used,

its condition and depreciation." Korica v. State, 791 So. 2d 543, 544 (Fla. 2d DCA




                                             -3-
2001). Even considering these options for proving value, "[i]f the value of property

cannot be ascertained, the trier of fact may find the value to be not less than a certain

amount; if no such minimum value can be ascertained, the value is an amount less than

$100." § 812.012(10)(b). Theft of property valued at less than $100 constitutes petit

theft, which is a second-degree misdemeanor. See § 812.014(3)(a).

              To obtain Wiechert's conviction under section 812.014(2)(c)(1), the State

was required to prove beyond a reasonable doubt that the value of the property he stole

was at least $300. However, the State's evidence was legally insufficient to establish

this value. The victim offered no evidence as to the market value of the safe or the

clothing at the time of the offense. Instead, he testified only to purchase prices that

were from two to seven years ago. The State also did not offer any evidence of the

replacement cost of the safe or the clothing, nor did it offer any evidence of the manner

in which the items were used, their general condition or quality, or any applicable

depreciation. Arguably, the State presented some evidence of the replacement cost of

the vehicle titles; however, that evidence was limited to the victim's "guesstimate" that

some portion of approximately $100 he paid to transfer the vehicle title to his son was

for the replacement of the title. This evidence, standing alone, was insufficient to

constitute proof beyond a reasonable doubt that the cumulative value of the stolen items

exceeded $100, much less that it exceeded the $300 necessary to obtain a conviction

under section 812.014(2)(c)(1). Therefore, the trial court should have granted

Wiechert's motion for judgment of acquittal on the charge of third-degree grand theft,

and its refusal to do so was error.




                                            -4-
              Accordingly, we reverse Wiechert's grand theft conviction and remand with

directions that the trial court reduce that conviction to one for second-degree petit theft.

See § 924.34, Fla. Stat. (2013) (providing that when the evidence does not prove the

offense for which the defendant was found guilty but does establish guilt of a lesser

offense, "the appellate court shall reverse the judgment and direct the trial court to enter

judgment for the lesser . . . offense"); see also Carter, 77 So. 3d at 852 (reducing

defendant's conviction from grand theft to petit theft when the State failed to prove the

value of the items stolen); Jones v. State, 958 So. 2d 585, 586 (Fla. 2d DCA 2007)

(same). In addition, because this change in convictions will affect Wiechert's Criminal

Punishment Code scoresheet, on remand the trial court must resentence Wiechert

using a corrected scoresheet.

              Affirmed in part, reversed in part, and remanded for further proceedings.




ALTENBERND and KELLY, JJ., Concur.




                                            -5-
