Restitution Is Tough to Prove

Some people are clueless when it comes to what things are worth. We all have that friend who claims his home is worth twice what we all know it is worth. And, these are typically the same people that decide to sell their home “By Owner”; after refusing to believe several real estate agents who have told them that their home is worth half what they think it. This (possibly genetic) inability to value things doesn’t really bother me, we criminal defense attorneys see this sort of thing all the time. People think they have won the lottery whenever they are wronged in some way. Every petit theft case, every grand theft case, every criminal mischief case, every robbery case reaches a point in which the prosecutor tries to explain their victim’s “restitution amount” with a straight face. If your client steals the jacket off someone’s back, that’s rude and unacceptable (especially on a cold night), but it’s entertaining to hear about the fact that Kurt Kobain gave him the jacket right before he killed himself and thus, it’s worth thousands of dollars (after all, people give away their stuff before they…..anyway). The stories are endless, and it is up to we defense attorneys to inject some sort of sanity into coming up with a reasonable restitution amount.

Our case of the day is Phillips v. State, 141 So. 3d 702 (Fla. 4th DCA 2014). This case will sound like a million other cases out there in which something of value was stolen, and the prosecutors call the victim to testify about the value of the stolen goods. Yes, victims are allowed to tell the court how much their stuff was worth, but no, they may not base their testimony on hearsay–what someone else told them their stuff was worth. In Phillips, jewelry was stolen, and the victim testified that she examined six different websites to arrive at the values for her stolen pieces of jewelry. Basically, the victim averaged the six prices found online to come up with what she considered the market value of her stolen jewelry. Yes, your hearsay alarms should be going off by now, as any testimony found “on a website” is 100% hearsay. And Phillips’ defense attorney objected on those grounds, but those objections were overruled. The defense appealed, and here’s what the appellate court had to say.

On appeal, the court referenced numerous cases which have held that victims may not testify in court as to what a website, or catalog, told them their stuff was worth. In Gonzalez v. State, that court held that “catalog prices alone are insufficient to establish a sufficient predicate”. 40 So. 3d 86, 89 (Fla. 4th DCA 2010). If you can’t use catalog prices as a basis of restitution, how can you use a website? So, the Phillips court overturned the restitution order of the lower court, and sent the case back for a new restitution hearing that contained some real witness testimony. This case is one of those rare instances when the court actually follows the law, even though they didn’t want to. Here’s what they said:

“In reaching our conclusion, we recognize that it was practically impossible for the victim to establish the restitution amount without relying on hearsay evidence . . . 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 . . . 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.”

And, the appeals court in Phillips proposed a solution to this problem–amend the Florida Statutes to permit trial courts to consider hearsay for purposes of restitution. Technically, they want to amend section 775.089, adding the following sentence: “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”. Id. By making this change, victims could “offer an opinion as to . . . value that is based upon hearsay.” Id.

The Phillips case has already been cited in Schenk v. State, 150 So. 3d 275 (Fla. 5th DCA 2014), another restitution appeal in which the victim testified that she looked up the prices of jewelry on the internet, and used those amounts when she testified as to the value of her stolen jewelry. However, Schenk’s attorney did not object to this testimony. Schenk appealed, with “the primary issue on appeal [being] whether the victim’s hearsay testimony of the value of her stolen jewelry is sufficient to sustain the court’s restitution order”. Id. Schenk asked the appeals court to follow the decision in Phillips, but the Schenk court upheld the restitution based upon hearsay reasoning that “here, unlike in Phillips, Schenk did not object to [the victim’s] hearsay testimony.” Yes, objections are important.