Toole v. State, --- So. 3d ---, No. 4D17-2115, 2019 WL 761620 (Fla. Dist. Ct. App. Feb. 20, 2019).
March 28, 2019
Defendant pleaded guilty to dealing in stolen property and false verification or ownership to a pawnbroker and was ordered to pay close to $10,000 in restitution. Defendant appealed the restitution order, arguing that the restitution amount was not only for items pawned, but for all items missing by the victim (outside of the those relevant to the charges), and that the victim merely “guesstimated” the replacement value of items rather than providing the true fair market value of replacement. The court explained that under Florida law, the state bears the burden of demonstrating the amount of loss sustained by the victim as a result of the offense. Fair market value can be established by direct testimony using four factors: (1) the 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. The victim here met the first factor, but not the others. Accordingly, the testimony was insufficient to establish fair market value. The court noted that restitution “continues to be a perplexing uphill battle for victims,” and that Floridians recently amended the Constitution in part to address restitution. However, “[d]espite the statute, the rules, the case law, and the constitutional amendment, proving restitution continues to be difficult for victims, and receiving compensation for their loss continues to be elusive.” The court noted that it had previously suggested a legislative fix by adding language into the restitution statute that the court is not bound by fair market value as the sole standard for determining restitution amounts, but rather may exercise its discretion to further the purposes of restitution. However, the statute has not yet been amended. Accordingly, the court reversed the restitution award, but certified the following question to the Florida Supreme Court as a matter of great public importance: Is the formula for determining restitution based on the fair market value of the victim’s property still viable after the passage of the Constitutional victims’ rights amendment, or should a trial court no longer be bound by fair market value as the sole standard for determining restitution amounts, and instead exercise discretion to further the purposes of restitution? Reversed.