       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT
                             January Term 2014

                         KATRINA R. PHILLIPS,
                              Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                              No. 4D13-1046

                               [July 2, 2014]

   Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Robert L. Pegg, Judge; L.T. Case No.
312012CF001603A.

  Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L.
Melear, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

    The defendant appeals from a restitution order following her conviction
and sentence for various crimes involving the victim’s stolen jewelry. The
defendant primarily argues that the circuit court erred in determining the
restitution amount based on hearsay evidence which the victim obtained
from websites. Based on case law, we are compelled to agree with the
defendant, and thus reverse and remand for a new restitution hearing.

   At the restitution hearing, the victim testified that, after she prepared
the list of stolen jewelry, the prosecutor asked her to research how much
the jewelry was worth. The victim testified that she researched online the
jewelry’s value as follows:

      I got high and low prices. Some items I found three or four
      pieces that were similar, added them together and divided
      them by whether I got three or four prices. . . . [A]ll the prices
      that I got were just middle prices. . . . .
   The defendant objected on hearsay grounds to the victim testifying
about any online values. The circuit court overruled the objection. The
court commented, “I think it’s a valid method of attempting to obtain a
market value.”

   After the court’s ruling, the following exchange occurred between the
prosecutor and the victim regarding the victim’s estimated value for each
item:

      Q. . . . [F]irst item that you mentioned, the one-carat
      diamond, what was the amount you were able to determine?

      A. The average was $6,200.

      Q. . . . [S]econd item, the tennis bracelet . . . what was the
      amount you were able to determine?

      A. [$2,950].

      ....

      Q. . . . [T]hird item, the [amethyst charm] . . . how much were
      you able to determine that was worth?

      A. . . . [T]hat one was difficult because it had been passed
      through my family for numerous generations. We got it back
      in the 1800s and as far as similar stuff, I got [$2,748].

      ....

      Q. . . . [N]umber 4 [the amethyst bracelet], how . . . much
      were you able to determine for that?

      A. [$3,895].

      ....

      Q. . . . [N]umber 5 . . . amethyst earrings.

      A. . . . This I only got one price for because I saw a picture of
      the earrings that looked exactly like mine and [they were]
      $721.


                                     2
Q. . . . [N]umber 6, gold chain necklace?

A. $449.

Q. . . . [N]umber 7, rope bracelet.

A. $349.

....

Q. . . . [N]umber 8, [the one-quarter carat] diamond earrings?

A. . . . I went with the quarter carat because I do believe that
they were quarter carat. My ex-husband said they were half
carat each but I was pretty sure they were quarter carats.
. . . $724.

Q. . . . [N]umber 9, gold wedding band.

A. $648 . . . .

Q. . . . [N]umber 10, aquamarine [and] gold bracelet . . . .

A. . . . $123. And that item is irreplaceable too.

Q. . . . Item 11, which is a gold heart ring with a [quarter]
carat diamond in each heart.

A. $1,477.

Q. And . . . all of these items . . . this is your replacement
value if you were to go out and try to get . . . the same type of
items that were stolen from you –

....

A. Right. Similar . . . as I could find.

....

Q. Item 12 [the gold flower ring].

A. $142.


                               3
The victim testified that the total amount which she was seeking for the
jewelry was $20,511.

   On cross-examination, the victim recounted the names of the six
websites she used to perform her research. She also testified that she
performed her research on two separate days – the first day approximately
two months before the restitution hearing, and the second day
approximately two weeks before the restitution hearing. She conceded
that she did not purchase any of the items and, for most of the items, had
no first-hand knowledge of their purchase date, original value, or quality.
She also conceded that, at the defendant’s sentencing hearing two months
earlier, she estimated the items’ total value to be $14,000, and had
changed her estimate based on her internet research.

   During closing arguments, the defendant contended that the victim’s
estimate of the items’ values from the internet was not sufficient to
establish the restitution amount because it was inadmissible hearsay.

   The circuit court found that the victim’s testimony was sufficient to
establish the restitution amount. The court reasoned:

      [Sage v. State, 988 So. 2d 150 (Fla. 4th DCA 2008),] tells us
      how we figure out what restitution should be. And the four
      factors that set forth what we can consider and ascertain the
      fair market value are the original market cost, the manner in
      which the item was used, the general condition and the
      quality of the item, and the percentage of depreciation. I’m
      not sure that jewelry ever depreciates, but the defendant
      should not get the benefit of a bargain by . . . stealing
      something that’s antique or that’s old, that it’s no longer
      capable of somebody just finding an exact duplicate like you
      could an automobile or a stereo or something like that. Also
      [Sage] stands for the proposition that an owner of property is
      generally qualified to testify as to fair market value of the
      property. The burden is certainly on the State to do that, but
      also [Sage] tells us that when a plea agreement is reached and
      a defendant agrees to pay restitution, it should be liberally
      construed in favor of making the victim whole again, and
      that’s what I intend to do in this case. I recognize that some
      of these items may not be exactly capable of being an exact
      value . . . because she just didn’t buy these things. She
      doesn’t have receipts for when she actually bought them
      because the jewelry, as oftentimes is, is a gift. So I choose to
      resolve the credibility as a fact finder in favor of . . . the victim.

                                        4
      . . . I’m going to find restitution in the total amount in this
      case of $20,511.

    After the circuit court entered a written restitution order, this appeal
followed. The defendant primarily argues that the circuit court erred in
determining the restitution amount based on hearsay evidence which the
victim obtained from websites. We review the court’s determination of the
restitution amount for an abuse of discretion. T.D.C. v. State, 117 So. 3d
809, 811 (Fla. 4th DCA 2013).

   Based on case law, we are compelled to agree with the defendant’s
argument. “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.” Conway v. State, 115 So. 3d 1058, 1059 (Fla. 4th DCA
2013) (citation and quotation marks omitted); see also G.M.H. v. State, 18
So. 3d 728, 729-30 (Fla. 2d DCA 2009) (reversing and remanding for a new
restitution hearing based on the state’s concession that the trial court
should not have admitted the victim’s mother’s hearsay evidence of repair
prices based on her internet research). 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. See, e.g.,
Gonzalez v. State, 40 So. 3d 86, 89 (Fla. 4th DCA 2010) (“Catalog prices
alone are insufficient to establish a sufficient predicate.”); I.M. v. State, 958
So. 2d 1014, 1016 (Fla. 1st DCA 2007) (“[The witness] did not have
personal knowledge of the value of the ruined items, but relied upon the
opinions of his vendors, who did not testify.”). Thus, the victim’s reliance
on hearsay evidence from websites was insufficient to establish the
restitution amount.

    In reaching our conclusion, we recognize that it was practically
impossible for the victim to establish the restitution amount without
relying on hearsay evidence. As the victim conceded, she did not purchase
any of the items and, for most of the items, had no first-hand knowledge
of their purchase date, original value, or quality. Therefore, in her good-
faith effort to establish the values of the items, she relied on her memory
of the items’ appearance, her understanding of the quality, and her ability
to find similar items on the internet. She went so far as to visit multiple
websites in order to determine an average price for the items.

   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.

                                       5
   This case is distinguishable from the situation we faced in Conway,
where the victim could have presented a competent witness to testify as to
the stolen item’s restitution amount. In Conway, the stolen item was an
antique silverware set. The set was melted down by the pawnshop which
purchased it from the defendant. However, the victim’s son testified that
he contacted a silver company representative who was able to identify and
determine a restitution amount for the set. The amount was relied upon
by the trial court to determine restitution. We reversed because the son’s
testimony was based on hearsay – merely reciting his conversation with
the silver company representative. 115 So. 3d at 1059. Presumably, if the
victim or the state had incurred the expense of presenting the silver
company representative as a witness at the restitution hearing, then the
hearsay objection would have been resolved, allowing the restitution
amount to be awarded.

    Here, however, it is highly unlikely that the victim could have presented
representatives from the various websites she researched to testify as to
the restitution amount. Putting aside the time and expense of such an
endeavor, such representatives would have a difficult time establishing
their competency or reliability to opine as to the stolen items’ value. Unlike
the recognizable antique silverware set in Conway, the stolen items here
were not unique and, because the items were gifts, the victim had no
reason to possess any knowledge regarding the items’ purchase date,
original value, or quality. Thus, the testifying representatives would be
left to accept the victim’s non-descript description of the stolen items and
merely speculate that a similar-looking item had a certain value. Such
speculative testimony likely would be insufficient to establish the
restitution amount.       See id. (the amount of restitution “must be
established through more than mere speculation”) (citation and quotations
marks omitted). Thus, although we are obligated to remand for a new
restitution hearing, we are doubtful that the new hearing will provide the
victim with any relief.

    We surmise that the victim here is not alone. This court and our sister
courts recently have issued multiple opinions reversing restitution awards
where the victim and the state have not presented competent, substantial
evidence supporting the amount awarded. See, e.g., T.D.C., 117 So. 3d at
811 (“[A]bsent circumstances tending to show that [fair market value] does
not adequately compensate the victim or otherwise serve the purpose of
restitution . . . the amount of restitution should be established through
evidence of [fair market value] at the time of the theft.”) (citation and
quotation marks omitted). In each case, a wholly innocent person has
been left with a more difficult, if not impossible, path to recover their stolen

                                       6
items’ value. The circuit court in this case recognized this unjust result
in honorably attempting to justify its determination of the restitution
amount here.

   Based on the foregoing, we recommend that our state legislature revisit
section 775.089, Florida Statutes (2012), and consider providing trial
courts with wider discretion in setting the restitution amount. We
recommend the following underlined revision to section 775.089(7):

       Any dispute as to the proper amount or type of restitution
       shall be resolved by the court by the preponderance of the
       evidence. 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.
       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.

See State v. Hawthorne, 573 So. 2d 330, 333 (Fla. 1991) (“[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.”) (emphasis added); Noel v. State, 127 So. 3d 769,
774 (Fla. 4th DCA 2013) (“[R]estitution to victims is a central ‘penological
interest’ of Florida criminal law.”); § 90.802, Fla. Stat. (2012) (“Except as
provided by statute, hearsay evidence is inadmissible.”) (emphasis added).
This proposed statutory change would permit a victim-owner of property
to offer an opinion as to its value that is based upon hearsay.

   In the meantime, we will enforce the law as it currently exists. We
reverse and remand for a new restitution hearing.

    Reversed and remanded for a new restitution hearing.1

1  The defendant also argues that the circuit court erred in setting the restitution
amount based on the stolen items’ purchase price instead of their fair market
value. We disagree. The record indicates that the court determined the
restitution amount based on the stolen items’ fair market value, albeit improperly

                                         7
GROSS, GERBER and FORST, JJ., concur.

                              *          *          *

   Not final until disposition of timely filed motion for rehearing.




based upon hearsay evidence from websites. See T.D.C., 117 So. 3d at 811
(“Generally, the amount of restitution is established through evidence of fair
market value of the stolen items at the time of the theft.”) (citation and quotation
marks omitted).



                                         8
