        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                      CRICKET KATHLEEN TOOLE,
                              Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                              No. 4D17-2115

                             [October 24, 2018]

  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.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel,
Assistant Attorney General, West Palm Beach, for appellee.

CIKLIN, J.

    The defendant entered a negotiated plea to charges of dealing in stolen
property and false verification of ownership to a pawnbroker. In exchange
for her plea, the state nolle prossed a charge for grand theft, but the plea
agreement required her to pay restitution to the theft victim. The
defendant now appeals the order of restitution and raises three issues. We
affirm on all issues, but we write to address her assertion that the state
failed to prove the value of restitution for the stolen items. Further, with
this opinion, we aim to capture the attention of the Criminal Law Section
of the Florida Bar, with the hope that it will analyze the existing convoluted
scheme for restitution in Florida and make recommendations to the
appropriate parties to bring lucidity to the process.

    The defendant contends that, while the victim submitted receipts and
provided testimony to evidence the original purchase price of many of the
items in question, which were mostly electronics, the state failed to present
evidence to establish the items’ fair market values. Because the case law
on proof for purposes of restitution has confusingly devolved to permit a
laissez-faire approach in order to compensate victims, we must affirm.
   On the one hand, we have indicated that “[g]enerally, the amount of
restitution is established through evidence of fair market value of the
stolen items at the time of the theft.” Thompson v. State, 68 So. 3d 425,
426 (Fla. 4th DCA 2011). “Fair market value is calculated by reference to
four factors: (1) the original market cost; (2) the manner in which the items
were used; (3) the general condition and quality of the items; and (4) the
percentage of depreciation.” Id.

    On the other hand, the Florida Supreme Court has stated that “such a
rigid standard of proof is not required for purposes of restitution.” State
v. Hawthorne, 573 So. 2d 330, 332 (Fla. 1991). Accordingly, Florida courts
have accepted evidence amounting to less than proof of each of the four
fair market value factors. See, e.g., Gonzalez v. State, 40 So. 3d 86, 88-89
(Fla. 4th DCA 2010) (affirming trial court’s entry of restitution award where
victim testified to original purchase price, year of purchase, and
replacement cost of stolen jewelry); Yaun v. State, 898 So. 2d 1016, 1017
(Fla. 4th DCA 2005) (affirming restitution award where victim “identified
each item and her assessment of its current market value” and produced
receipts and computer print-outs for some items). Perhaps this is because
“[w]here restitution is part of a plea bargain, it should be liberally
construed in favor of making the victim whole.” Yaun, 898 So. 2d at 1017
(quoting Hercule v. State, 655 So. 2d 1256, 1257 (Fla. 3d DCA 1995)).

  Given the broad discretion granted to trial judges with respect to
matters of restitution, see A.G. v. State, 718 So. 2d 854, 856 (Fla. 4th DCA
1998), we are compelled to affirm the trial court.

   Affirmed.

GERBER, C.J., concurs.
MAY, J., dissents with opinion.

MAY, J., dissenting.

   I respectfully disagree with the majority. While the law on restitution
may be somewhat confusing, it always requires proof of the fair market
value of items lost. That proof was lacking in this case.

   The defendant pled guilty to dealing in stolen property and false
verification of ownership to a pawnbroker. The State nolle prossed a 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).”

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   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 had nolle prossed. The court overruled the objection and
proceeded with the hearing.

    The victim testified to the value of the items, but primarily testified to
their original price, and guesstimates of replacement value. He provided
receipts for some of the items. 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.

   The majority suggests State v. Hawthorne, 573 So. 2d 330, 333 (Fla.
1991) provides a trial court with broad discretion to use any method it
choses in ordering restitution. I disagree.

   Hawthorne provides a formula for determining the fair market value of
items for restitution. Id. at 332. 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.

   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, 426 (Fla. 4th DCA 2011) we

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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. at 427 (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
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.
Because the State failed to prove fair market value, I would reverse the
restitution award, and remand the case for a new hearing to determine the
items’ fair market value using Hawthorne’s formula and subject to the
limited nature of the defendant’s plea. Let us not forget the defendant pled
only to dealing in stolen property and false verification of ownership to a
pawnbroker charges. She did not plead to the grand theft charge.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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