PBCBA BAR BULLETINS pbcba_bulletin_JulAug 2019 | Page 7

APPELLATE PRACTICE CORNER
Restitution After Amendment 6
MELYNDA MELEAR
The Fourth District Court of Appeal is
the first district court to contemplate the
impact of last year’s affirmative vote on
Amendment 6 to the Florida Constitution,
also known as Marsy’s Law, Art. I, §16,
Fla. Const. (2018), which sets out victims’
rights. The Fourth District certified a
question of great public importance to the
Florida Supreme Court in Toole v. State , 44
Fla. L. Weekly D512a (Fla. 4th DCA Feb. 20,
2019) and asked whether the formula for
determining restitution to victims based
on fair market value is still viable after
the passage of Amendment 6 or if the
trial courts now have greater discretion in
determining restitution amounts, including
the considering hearsay. It noted that the
amendment assures the victim’s right to full
restitution and assistance with collecting
restitution, having restitution paid to
the victim prior to amounts owed to the
government being paid, and compensation
as provided by law.

In Toole , a case involving dealing in stolen
property and false verification of ownership
to a pawnbroker, the victim testified to the
original prices of items that had been stolen
and guesstimated their replacement values.
Under the fair market value formula set out
in State v. Hawthorne , 573 So 2d 330, 333 (Fla.
1991), the victim’s testimony did not suffice
to establish a restitution amount because
it did not explain the manner in which the
items were used, their general conditions
and the percentage of depreciation.

The Fourth District also found that the
evidence in support of the restitution award
was not sufficient in Morrill v. State , 44 Fla.
L. Weekly 843a (Fla. Apr. 3, 2019), in which
the victim based the estimate of his jewelry
on a comparison to other similar pieces.
The Fourth District reversed the case for a
new restitution hearing. In doing so, it noted
that Amendment 6 requires that victims
be provided with assistance in collecting
restitution but said that the State had not
helped the victim in Morrill retrieve the
photo of his jewelry from law enforcement
prior to the restitution hearing or help the
victim establish a replacement cost on
something more than a guesstimate.
Restitution is intended to compensate the
victim, as well as serving other criminal
justice goals, like deterrence and retribution.
Davis v. State, 244 So. 3d 374, 377-378 (Fla.
4th DCA 2018). The fair market value of an
item is usually adequate to cover a victim’s
loss and is considered first in determining
restitution. Id.; T.D.C. v. State , 117 So. 3d 809,
811 (Fla. 4th DCA 2013). However, there are
circumstances in which the fair market
value does not sufficiently compensate
the victim, such as where an heirloom has
been stolen or a damaged vehicle has been
recently repaired. Id. In such circumstances,
the replacement or repair value may serve
as the restitution amount. Id . And then
there are circumstances in which the fair
market value might not address the full
extent of the victim’s loss. For instance, the
dissent in Tolbert v. State , 44 Fla. L. Weekly
D1009 (Fla. 1st DCA April 22, 2019) disagreed
that the fair market value of the totaled
vehicle fairly compensated the victim since
she had an outstanding loan balance on
the vehicle that exceeded the fair market
amount. It suggested that a more flexible
standard was required because the loan
carried an extraordinarily high interest rate
and it would be inequitable to require the
victim to shoulder the balance of the loan
when she no longer had use of the vehicle.
To date, while a victim’s testimony can be
sufficient to support a finding on the value
of stolen items, it must be supported by
documentation. See Gonzalez v. State , 40
So. 3d 86, 89 (Fla. 4th DCA 2010). Hearsay
cannot be used to establish restitution. See,
e.g., O.W. v. State , 227 So. 3d 654, 655-656 (Fla.
1st DCA 2017)(internet research to show
value of jewelry); A.J.A. v. State , 215 So. 3d
639 (Fla. 5th DCA 2017)(repair estimate for
car bumper). In the past, the Fourth District
has noted that there are times, such as
when a stolen item was given to the victim
as a gift and the original cost is unknown,
that it is practically impossible for a victim
to show the restitution amount without
relying on hearsay. See Phillips v. State , 141
So. 3d 702, 705 (Fla. 4th DCA 2014).
Amendment 6 has prompted government
officials to place victim rights at the
forefront. However, it is not clear how the
PBCBA BAR BULLETIN
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amendment should be applied to honor
those rights. In The Florida Bar News, Vol.
46 No.2 (Feb. 2019), a senior editor recently
observed that the self-implementing
Marsy’s Law needs some assistance in
guiding the criminal justice system. The
Fourth District has taken a step in seeking
such guidance by advancing the question
to the high court on how the amendment
impacts victim-restitution.

Melynda Melear is a Senior Assistant
Attorney General in the Criminal Appeals
Division of the West Palm Beach office. She
has practiced criminal appellate law for
twenty-seven years and is certified with the
Florida Bar in Criminal Appellate law.
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