Opinion
No. 1D13–4859.
2014-05-29
DJR, a child, Appellant, v. STATE of Florida, Appellee.
Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant. Pamela Jo Bondi, Attorney General, and Michael McDermott, Assistant Attorney General, Tallahassee, for Appellee.
Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant. Pamela Jo Bondi, Attorney General, and Michael McDermott, Assistant Attorney General, Tallahassee, for Appellee.
WOLF, J.
Appellant, DJR, challenges the trial court's order awarding restitution specifically as it pertains to three computers that he took from a school. He argues the trial court erred in granting restitution in the amount of the replacement value, rather than fair market value. We find that there was insufficient evidence to support the trial court's award of replacement value for the three computers and reverse and remand for a new hearing.
The State has the burden to prove the amount of restitution by the greater weight of the evidence. See State v. Childers, 979 So.2d 412, 414 (Fla. 1st DCA 2008); § 775.089(7), Fla. Stat. Restitution must be proved by competent, substantial evidence. Childers, 979 So.2d at 414. We review a restitution order for an abuse of discretion. Id.
“Unless ‘special circumstances' are shown, FMV [fair market value] (rather than replacement value) is the appropriate measure of damages in calculating restitution.” I.M. v. State, 917 So.2d 927, 934 (Fla. 1st DCA 2005) (citations omitted). See also State v. Hawthorne, 573 So.2d 330, 333 (Fla.1991) (finding “in most instances the victim's loss and the fair market value of the property at the time of the offense will be the same,” although “we can foresee instances when the market value of the property would not adequately reflect the victim's loss or when the consideration of the percentage of depreciation would be inequitable”). “[T]he restitution amount may not exceed the damage the criminal conduct caused the victim.” Gilileo v. State, 923 So.2d 612, 614 (Fla. 2d DCA 2006).
Here, the trial court awarded restitution in the amount of replacement value based on the testimony of the school principal that the computers contained instructional materials that took teachers hours to generate, and which would take them hours to recreate. However, the principal was unable to testify as to how many teacher work hours were lost or to put a monetary value on those hours. Therefore, there was not competent, substantial evidence to support the trial court's finding that the theft of the computers cost the school “literally hundreds, if not thousands, of teacher hours,” or that the State's request for restitution in the amount of replacement value was “low” in light of the lost teacher hours. Therefore, we reverse the award of restitution as to the three contested computers and remand for a new hearing, at which the State may present evidence of the number and value of lost teacher hours. See S.M. v. State, 665 So.2d 335 (Fla. 1st DCA 1995) (reversing and remanding for a new restitution hearing on several items for which the amount ordered by the trial court was not adequately supported by the evidence presented).
REVERSED AND REMANDED. LEWIS, C.J., concurs; MAKAR, J., specially concurring with opinion.
MAKAR, J., specially concurring.
This case is another in which a restitution victim—this time a public school system—must navigate the legal waters to establish its losses, ones that oftentimes are not recovered from juvenile offenders. After a hearing at which school officials testified, the trial court entered a net restitution order requiring D.J.R. to pay a total of $5,775 (in 231 monthly installments of $25) to replace electronic devices (eight computers, microphones, a metronome, and a digital camera), an acoustic guitar, and, among other items, a $2 bill that he stole from an elementary school. Adjustmentswere made for items recovered. The ripple effects of the theft deprived students and teachers of the benefit of the use and content of the computers for over nine months.
See Making Restitution Real: Five Case Studies on Improving Restitution Collection, The National Center for Victims of Crime (2011), http:// www. victims ofcrime. org/ docs/ Reports and Studies/ 2011_restitution report_web.pdf?sfvrsn=2 (highlighting Project Payback, which is a juvenile restitution program started in Alachua County in the late 1990s that focuses on restorative justice by requiring and assisting juvenile offenders to get work, obtain job skills, and repay their victims' losses).
D.J.R. challenges only the portion of the award for three stolen computers, each having instructional and other educational materials that took teachers months of their time to prepare and save on the missing machines. These are “special circumstances” that justify using a replacement cost approach rather than fair market value because the latter would not account for the value of the lost content (the cost of commercial software is not at issue because the school's vendor agreed to provide it on new computers at no extra cost).
The school relied upon the current replacement value for each computer as a rough proxy for the sum of each's fair market value plus the value of lost content. Replacement values were $1,346, $1,541, and $1,132 for the three computers. Assuming that fair market value for the circa 2009 computers is at least $300 each (a number defense counsel offered from a cell phone search during the hearing), the actual amount at issue in this case is approximately $3,000, which represents a total replacement value of $4,019 (minus total fair market value of $900). This number represents the approximate value of the lost teacher-generated content on the computers, a number the school accepts but which D.J.R. contests.
While it is true that Principal Sanders gave no exact dollar amount to support the value of the lost computer content, she did say that teachers spent, at the very least, five hours per week on the computers over the time period they were in use—from about 2009 until early 2013 when the theft occurred—but she lacked an estimate of an hourly wage. This led the trial judge to conclude that “literally hundreds, if not thousands, of teacher hours” had been expended. Even at Florida's current minimum wage of $7.93 (which is well below one estimate of the average starting teacher salary in Florida of $35,236), it seems apparent that the value of the lost teacher-generated content could easily exceed $3,000, which is why the trial judge concluded that the amount sought was “conservatively low” and entered the order at issue; and it is why remanding for a new hearing is a Pyrrhic victory for D.J.R. I concur because the restitution order should fully reflect the actual loss to the school in this case.