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 7 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. SAVE THE DATE Construction Law Seminar “Community Association Turnover Claims” Friday, September 20, 2019 8:30 AM - 12:00 PM PBCBA Office