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                                            IN THE DISTRICT COURT OF APPEAL
                                            OF FLORIDA
                                            SECOND DISTRICT



GERALD LEWIS CIANI,              )
                                 )
           Appellant,            )
                                 )
v.                               )                       Case No.    2D14-227
                                 )
STATE OF FLORIDA,                )
                                 )
           Appellee.             )
________________________________ )

Opinion filed October 9, 2015.

Appeal from the Circuit Court for
Pinellas County; Michael F. Andrews,
Judge.

Benjamin G. Deberg, St. Petersburg,
for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Wendy Buffington,
Assistant Attorney General, Tampa,
for Appellee.



KELLY, Judge.


              Gerald Ciani appeals from his judgment and sentence for grand theft. We

find merit only in his argument that the State failed to sufficiently establish the fair
market value of the stolen property. We reverse and remand for the entry of a judgment

for petit theft.

                   Mr. Ciani was charged with the theft of tools belonging to his employer,

Sam Malatia. Mr. Malatia testified at trial that Mr. Ciani failed to return a tool kit

purchased the year before for $300 or $400, a drill purchased for $289, and at least six

batteries worth $50 each. It cost him almost $600 to replace the tools Mr. Ciani stole.

Mr. Malatia claimed that he kept all of his tools in very good condition. A representative

of the hardware store where the tools were purchased confirmed that Mr. Malatia

bought the tool kit a year earlier for between $300 and $400. He estimated the cost of

the drill Mr. Malatia purchased to be $199. Based on this evidence, the trial court ruled

that the State had failed to carry its burden of proving the market value of the stolen

property. The court found, however, that Mr. Malatia's testimony that he had replaced

the tools for almost $600 was enough to show that the value of the stolen property was

more than $300.

                   In order to establish third-degree grand theft, the State must prove that the

property stolen was valued at $300 or more, but less than $5000. § 812.014(2)(c)(1),

Fla. Stat. (2013). "Value may be established by direct testimony of fair market value or

through evidence of the original market cost of the property, the manner in which the

items were used, the condition and quality of the items, and the percentage of

depreciation of the items since their purchase." Pickett v. State, 839 So. 2d 860, 861-62

(Fla. 2d DCA 2003). Because value is an element of the offense, it must be proven

beyond a reasonable doubt. Carter v. State, 77 So. 3d 849, 851 (Fla. 2d DCA 2012).




                                                -2-
              Mr. Malatia testified as to the original cost of the tools, the manner in

which they were used, and their condition. Lacking from his testimony, however, was

any opinion as to depreciation in the tools' value since the time of purchase. The trial

court correctly found that the evidence was insufficient to prove the market value of the

stolen tools. See Mitchell v. State, 917 So. 2d 1056, 1057 (Fla. 2d DCA 2006) (holding

that market value was not established by evidence of the purchase price of stolen items

where no evidence was offered as to any depreciation in value since their purchase);

Bloodsaw v. State, 994 So. 2d 378, 380 (Fla. 3d DCA 2008) (holding that, although the

State asked an electrician about the cost, manner of use, and condition of his stolen

tools, the failure to ask the owner's opinion regarding depreciation rendered the

testimony insufficient to establish the fair market value of the tools).

              The State can introduce evidence of the replacement cost of stolen

property if the market value at the time and place of the offense cannot be satisfactorily

ascertained. § 812.012(10)(a)(1). The trial court relied on Mr. Malatia's testimony that it

cost almost $600 to buy new tools as evidence of replacement value. However, this

reliance was in error since the evidence failed to establish the cost to replace the stolen

tools with similar tools that were a year old. See Newland v. State, 117 So. 3d 482, 484

(Fla. 2d DCA 2013) (holding that replacement cost evidence was insufficient where the

owner of a stolen air conditioner did not provide any testimony of the cost to replace the

stolen air conditioner unit with a similar unit about one to two years old).

              Accordingly, we reduce Mr. Ciani's conviction for grand theft to petit theft

and remand for resentencing. See § 812.014(3); Carter, 77 So. 3d at 852 (reversing

Carter's conviction for grand theft and remanding for entry of judgment for the lesser




                                             -3-
offense of petit theft where the evidence was insufficient to prove the value of the stolen

items, but was sufficient to prove that a theft had occurred).

              Reversed and remanded for resentencing.




SILBERMAN and WALLACE, JJ., Concur.




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