DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

CRICKET KATHLEEN TOOLE,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D17-2115

[February 20, 2019]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Samantha Schosberg Feuer, Judge; L.T. Case No. 50-2015-

CF-011860-AXXX-MB.

Carey Haughwout, Public Defender, and Claire V. Madill, Assistant 

Public Defender, West Palm Beach, for appellant.

Ashley B. Moody, Attorney General, Tallahassee, and Mark J. Hamel

and Alexandra A. Folley, Assistant Attorneys General, West Palm Beach, 

for appellee.

ON DEFENDANT’S MOTION FOR REHEARING,

REHEARING EN BANC, AND CERTIFICATION

MAY, J.

We grant the defendant’s motion for rehearing and certification, deny 

the defendant’s motion for rehearing en banc, and substitute the following 

opinion for the opinion we issued on October 24, 2018.

The labyrinth of restitution is at issue in this appeal. The law on 

restitution is both challenging in terms of proof, yet essential to ensure 

justice for the victim. It currently requires proof of the fair market value 

of property lost or damaged. That proof was lacking in this case. We 

therefore reverse and remand the case for a new restitution hearing.

The defendant pled guilty to dealing in stolen property and false 

verification of ownership to a pawnbroker. The State nolle prossed the

grand theft charge. The plea agreement did not specify a restitution 
2

amount, but stated: “Restitution ordered for victim . . .; amount to be 

determined by agreement of parties or at restitution hearing (hearsay &

causation objections waived).” The transcript does not reflect any 

limitation on the amount of restitution. 

At the hearing, the State sought restitution not only for the items 

pawned, but for all items taken. The defendant objected and argued that 

restitution should be limited to the items pawned as she pled only to the 

dealing in stolen property and false verification of ownership to a 

pawnbroker charges. She did not plead to the grand theft charge, which 

the State nolle prossed. The court overruled the objection and proceeded 

with the hearing.

The victim testified to the items’ value by providing their original price, 

and guesstimating their replacement value.1 For example, the victim 

testified that a Samsung flat screen television “roughly” cost “probably

around” $5000 or $6000, that an X-Box 360 cost “right around” $100, 

that some stolen sweatshirts cost “around 70 dollars apiece,” that a leather 

jacket cost “[p]robably around 4- or 500 dollars,” and that a bag containing 

pool sticks was worth “right around” $1,200.

The State sought $9,984.12, an amount reached by subtracting the 

value of some recovered items from the total amount, and the victim’s

guesstimates of replacement value for the remaining items. The defendant 

not only objected to restitution for the items that had not been pawned, 

but to the victim’s guesstimates, and his qualifications to testify to present 

value. The court ordered the defendant to pay $9,984.12, which included 

the original price, not the fair market value, of many of the items.

Section 775.089(7), Florida Statutes, provides: 

Any dispute as to the proper amount or type of restitution 

shall be resolved by the court by the preponderance of the 

evidence. The burden of demonstrating the amount of the loss 

sustained by a victim as a result of the offense is on the state 

attorney. The burden of demonstrating the present financial 

resources and the absence of potential future financial 

resources of the defendant and the financial needs of the 

defendant and his or her dependents is on the defendant. The 

burden of demonstrating such other matters as the court 

deems appropriate is upon the party designated by the court 

as justice requires.

1 He provided receipts for some items. 
3

§775.089(7), Fla. Stat. (2018). 

State v. Hawthorne, 573 So. 2d 330, 333 (Fla. 1991) provides the 

formula for determining fair market value for restitution purposes. Fair 

market value should be established through direct testimony or evidence 

of the following four factors: “(1) original market cost; (2) manner in which 

the item was used; (3) the general condition and quality of the item; and 

(4) the percentage of depreciation.” Id. at 332.

There are a few more rules that apply to restitution hearings. One, 

victims are “qualified” to testify to the value of their property. Id. at 333 

n.6. Two, “[h]earsay evidence may not be used to determine the amount 

of restitution when there is a proper objection by the defense to the 

hearsay evidence.” Phillips v. State, 141 So. 3d 702, 705 (Fla. 4th DCA 

2014) (quoting Conway v. State, 115 So. 3d 1058, 1059 (Fla. 4th DCA 

2013)). Three, the burden of proof is preponderance of the evidence. 

§ 775.089(7), Fla. Stat. (2018). And four, trial courts have discretion in 

ruling on the admissibility of evidence. Phillips, 141 So. 3d at 707.

Here, the victim testified about the items’ purchase price and provided 

some receipts. This was sufficient to satisfy the first factor, the original 

cost. But, there was no testimony about the manner in which the items 

were used, their general condition and quality, and the percentage of 

depreciation. The victim merely provided replacement cost guesstimates.

This testimony was insufficient to establish fair market value. 

In Thompson v. State, 68 So. 3d 425, 427 (Fla. 4th DCA 2011) we 

reversed a restitution award because it was “based on purchase price 

without adequately calculating the fair market value of the stolen items.” 

We find the victim’s testimony from personal knowledge 

regarding the purchase price and purchase date to be 

competent evidence to substantiate the items’ original cost. 

The record, however, contains no competent evidence of the 

“general condition and quality of the items” or the percentage 

of depreciation that would permit the trial court to calculate 

market value.

Id. (citations omitted).

Contrastingly, in Yaun v. State, 898 So. 2d 1016, 1017 (Fla. 4th DCA 

2005), we affirmed a trial court’s restitution award based on the victim’s 

testimony of the items’ value. We did so, however, because restitution was 
4

part of the plea agreement. Id. The record does not reflect such an 

agreement here.

Under either Thompson or Yaun, the evidence here was insufficient.

Restitution continues to be a perplexing uphill battle for victims. 

Recently, Floridians voted to amend our constitution to in part address 

restitution. Art. I, § 16, Fla. Const. (2018) (Constitutional ballot 

Amendment 6, also known as Marsy’s Law). The amendment ensures the 

victim’s right to:

• full restitution and to be provided with assistance 

collecting restitution; 

• have any monies or property collected from any person who 

has been ordered to make restitution be first applied to the 

restitution owed to the victim before paying any amounts 

owed to the government; and 

• compensation as provided by the law. 

See Art. I, § 16, Fla. Const. (2018).

Despite 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. See, e.g.,

G.M.H. v. State, 18 So. 3d 728, 729–30 (Fla. 2d DCA 2009); I.M. v. State,

958 So. 2d 1014, 1016 (Fla. 1st DCA 2007); Smith v. State, 941 So. 2d 479, 

481 (Fla. 3d DCA 2006); Ibrahim v. State, 866 So. 2d 749, 751 (Fla. 5th 

DCA 2004). 

We have previously suggested a legislative fix by adding the following 

to section 775.089(7): “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.” See Phillips, 141 So. 3d at 706. And 

yet, the statute remains the same as does the problem--proving restitution.

Because the State failed to prove fair market value here, we reverse the 

restitution award, and remand the case for a new hearing to determine 
5

restitution using Hawthorne’s formula.2 But, because the issue persists, 

we certify the following question to the Supreme Court of Florida as one of 

great public importance.

Is Hawthorne’s formula for determining restitution based on 

the fair market value of the victim’s property still viable after 

the passage of Amendment 6 (Marsy’s Law), or should a trial 

court no longer be bound by fair market value as the sole 

standard for determining restitution amounts, and instead

exercise such discretion as required to further the purposes 

of restitution, including consideration of hearsay?

Reversed and remanded for a new restitution hearing.

GERBER, C.J., concurs.

CIKLIN, J., concurs specially with opinion.

CIKLIN, J., concurring specially.

With the fervent hope that the Florida Legislature tackles and 

addresses Florida’s broken statutory restitution scheme, I take the liberty 

of setting out most of an insightful law review article written by Florida 

attorney Adam Hapner.

DO YOU KNOW THE FAIR MARKET VALUE OF YOUR PROPERTY?: 

A CALL TO THE LEGISLATURE TO REVISE SECTION 775.089, 

FLORIDA STATUTES, GOVERNING RESTITUTION

* * * *

II. MEASUREMENTS OF PROPERTY LOSS

A. Fair Market Value

In most cases, the appropriate measure of the victim’s property loss is 

the fair market value of the property at the time of the offense.19 “Fair 

2 The defendant also suggests that restitution be limited to the items pawned 

because she did not plead to the grand theft charge. A review of the plea hearing 

and plea form reveal no limitation on the restitution amount. 

19 See State v. Hawthorne, 573 So. 2d 330, 333 (Fla. 1991) (“We recognize that 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.”).
6

market value” is defined as “[t]he price that a seller is willing to accept and 

a buyer is willing to pay on the open market and in an arm’s-length 

transaction.”20 To establish fair market value, the State must present 

either direct testimony or evidence of all of the following four factors: “(1) 

original market cost; (2) manner in which the item was used; (3) the 

general condition and quality of the item; and (4) the percentage of 

depreciation.”21

1.Replacement Value

Normally, replacement value is an improper measure of the victim’s 

loss.22 But if a “ready market of identical items” to the property exists,23

or if replacement value is the actual loss suffered by the victim,24

replacement value and fair market value may be the same. 

2.Retail Value

In general, retail value is also an improper measure of the victim’s 

loss.25 However, if the victim deals in the type of goods lost, stolen, or 

20 BLACK’S LAW DICTIONARY 1785 (10th ed. 2014).

21 Hawthorne, 573 So. 2d at 332; see also Mansingh v. State, 588 So. 2d 636, 

638 (Fla. Dist. Ct. App. 1991). The four fair market value factors were first 

announced in Negron v. State, 306 So. 2d 104 (Fla. 1974), in which the Supreme 

Court of Florida held that when the value of property is an essential element of a 

crime, the value must be established based on the fair market value of the 

property at the time of the offense. Id. at 108.

22 See Ibrahim v. State, 866 So. 2d 749, 750 (Fla. Dist. Ct. App. 2004) (“Generally, 

fair market value, not replacement value, is the correct measure of damages.”).

23 See Domaceti v. State, 616 So. 2d 1148, 1149 (Fla. Dist. Ct. App. 1993) 

(“Certainly where there is a ready market of identical items to the stolen item, 

restitution should be limited to its replacement.”).

24 See Dixon v. State, 601 So. 2d 606, 607 (Fla. Dist. Ct. App. 1992) (“In the 

instant case, the victim for purposes of restitution is the insurer . . . . Because 

the insurance policy involved in this matter provides coverage based upon 

replacement cost, we cannot say that the trial court abused its discretion in 

concluding that the loss caused by the appellant’s act was the replacement cost 

of the stolen items.” (citation omitted)).

25 See, e.g., Walentukonis v. State, 932 So. 2d 1136, 1137 (Fla. Dist. Ct. App. 

2006) (holding that the trial court erred in taking judicial notice of the retail value 

of a damaged truck based on a used car guide to determine the amount of 

restitution); Fletcher v. State, 800 So. 2d 309, 311 (Fla. Dist. Ct. App. 2001) (“In 

arriving at fair market value, the trial court must first consider the ‘original 

market cost’ of the stolen item, which was $1500 here. Accordingly, the $4500-

$6000 retail cost of the watch [at the time it was purchased] was irrelevant.”).
7

damaged, retail value—rather than replacement or wholesale value—may 

represent the true market value of the victim’s loss.26

B. “Fair Amount” Value

Fair market value is not the sole standard for determining restitution 

amounts.27 In State v. Hawthorne, the Supreme Court of Florida held that 

when fair market value does not adequately reflect the victim’s loss, such 

as with a family heirloom, or when consideration of depreciation would be 

inequitable, such as with a recently purchased car, the court “may exercise 

such discretion as required to further the purposes of restitution.”28 In a 

subsequent case, the Supreme Court of Florida interpreted the holding in 

Hawthorne to mean that “the trial court has discretion to take into account 

any appropriate factor in arriving at a fair amount [that] will adequately 

compensate a victim for his or her loss and further the purposes of 

restitution.”29 In other words, if the trial court finds that fair market value 

is an inappropriate measure of the victim’s loss, the appropriate measure 

is “fair amount” value.30

Not surprisingly, there is no precise definition of “fair amount” value. 

In recognition that the primary purpose of restitution is to compensate the 

victim, the measure is intentionally broad so it can encompass instances 

when the market value of the victim’s property does not adequately 

compensate the victim.31 For example, in Hawthorne, after the defendant 

was found guilty of grand theft auto, the trial court ordered him to pay 

restitution to the owner of the stolen vehicle “in the amount of $1500 for 

26 See, e.g., Nix v. State, 604 So. 2d 920, 922 (Fla. Dist. Ct. App. 1992) (holding 

that “the retail value of the gasoline is an appropriate measure of the fair market 

value” of fuel stolen from a gas station); Garrison v. State, 553 So. 2d 1377, 1379 

(Fla. Dist. Ct. App. 1989) (“Under the evidence presented to the trial court, that 

court could reasonably conclude that Mr. Garrison effectively stole thirteen retail 

sales from the victim, and that the victim was entitled to be reimbursed for those 

thirteen retail sales at the fair market value established by the retail price.”).

27 See State v. Hawthorne, 573 So. 2d 330, 333 (Fla. 1991).

28 Id. at 333 & nn.4–5.

29 Glaubius v. State, 688 So. 2d 913, 915 (Fla. 1997) (emphasis added).

30 See id.

31 See Hawthorne, 573 So. 2d at 333 (“[W]e 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 . . . . 

Therefore, we hold that a court is not tied to 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.” (footnotes omitted)).
8

the vehicle and $250 for the owner’s travel expenses.”32 This amount of 

restitution was based solely on the victim’s testimony:

At the restitution hearing, the owner testified that the auto at 

issue was a 1979 Ford Fairmount; had a book value of $1650 

in 1985 when it was purchased for $1530; was repaired 

shortly before the theft and was in good operating condition; 

was stolen 14 months after purchase; and was valued at zero 

after the theft because it had been completely burned. The 

owner further testified that she did not know the mileage of 

the car at the time it was stolen, and that she had incurred 

expenses of $250 in securing alternative transportation.33

On appeal, the First District Court of Appeal of Florida reversed the trial 

court’s award of restitution, holding that the State had failed to establish 

the fair market value of the stolen vehicle at the time of the theft because 

the State presented no evidence regarding the percentage of depreciation 

for the vehicle.34

The Supreme Court of Florida reversed the First District Court, holding 

that the amount of restitution ordered by the trial court was supported by 

competent, substantial evidence.35 Specifically, the court stated that 

because the victim testified to the “purchase price of the car, the book 

value at the time of purchase, the repairs made to the car, and the general 

condition of the car[,] . . . the amount of the restitution order was 

supported by the evidence.”36 Thus, in Hawthorne, although there was no 

precise measurement of the victim’s loss, and the victim did not testify to 

all of the fair market value factors, based on the evidence presented, the 

court found that $1500 was a “fair amount” to compensate the victim for 

the car and to further the purposes of restitution.37

III. METHODS AND PROBLEMS OF PROOF

Despite the laudable efforts made by the Hawthorne court to limit the 

inequitable results that can undoubtedly occur when the State is required 

to establish precise measurements of loss, the requirements currently 

32 Id. at 331–32.

33 Id. at 331.

34 Id. at 332 (citing Hawthorne v. State, 558 So. 2d 156, 157 (Fla. Dist. Ct. App. 

1990)).

35 Id. at 333.

36 Id.

37 See Hawthorne, 573 So. 2d at 333.
9

imposed by Florida law often make it extremely difficult, if not practically 

impossible, for the State to prove the victim’s loss.38 Regardless of which 

measurement of value is used, the methods available to the State for 

establishing the value of the victim’s property in a restitution hearing are 

limited. Moreover, as discussed below, each approach encounters 

problems due to the Florida Evidence Code.39

A. Fair Market Value

1.Direct Evidence

If the State seeks to establish fair market value via direct testimony, it 

can hire an expert witness to testify concerning the value of the property. 

However, hiring an expert witness to testify to fair market value involves 

considerable time and expense.40 In addition, when property is stolen or 

lost and the victim has little information regarding the date of purchase, 

original price, or other details of the property—such as when the victim 

receives the property as a gift—the expert will have a difficult time 

establishing his or her competency and reliability to opine as to the 

property’s value, as required by section 90.702, Florida Statutes.41 In 

such circumstances, the expert must accept the victim’s description of the 

property and speculate that a similar item has a certain value.42 However, 

Florida courts have found that such speculative expert testimony is 

insufficient to establish fair market value.43

38 See, e.g., Phillips v. State, 141 So. 3d 702, 705 (Fla. Dist. Ct. App. 2014) (per 

curiam) (“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.”).

39 See infra note 48 and accompanying text.

40 Phillips, 141 So. 3d at 706.

41 Id.; see FLA. STAT. § 90.702 (2014) (“[A] witness qualified as an expert by 

knowledge, skill, experience, training, or education may testify about it in the 

form of an opinion or otherwise, if: (1) The testimony is based upon sufficient 

facts or data; (2) The testimony is the product of reliable principles and methods; 

and (3) The witness has applied the principles and methods reliably to the facts 

of the case.”).

42 Phillips, 141 So. 3d at 706.

43 Id.; see, e.g., D.E.M. v. State, 109 So. 3d 1229, 1232 (Fla. Dist. Ct. App. 2013) 

(“In the instant case, the victim testified that an appraiser gave him a 

‘guesstimated value’ of $20,000 or $30,000 for the entire coin collection, from 

which the victim came up with the $20,000 figure. The record contains no 

supporting documentation or other predicate for this speculative opinion of the 

value of the lost coin collection. A mere estimate of value, without any evidentiary 
10

Another way for the State to establish fair market value via direct 

evidence is to present the testimony of the victim. As a practical matter, 

the victim is often the State’s best (if not only) witness. In Hawthorne, the 

court noted that “an owner of property is generally qualified to testify as to 

the fair market value of his property,” whether or not the owner is qualified 

as an expert.44 This statement presumes that the owner has familiarity 

with the characteristics of the property, knowledge of its uses and 

purposes, and experience in dealing with it.45 Yet, that presumption is a 

“fragile” one.46 If it is not shown that the owner has knowledge of the 

property’s fair market value, Florida courts routinely hold that the victim’s 

mere opinion testimony of the value of his or her property is insufficient to 

establish the amount of restitution.47 Thus, unless the victim deals in the 

type of goods lost, stolen, or damaged, the victim is unlikely to be 

sufficiently qualified to provide the fair market value of his or her property. 

Of course, the cases in which a burglar takes art from the home of an art 

basis, is insufficient to prove an amount for restitution purposes.” (citation 

omitted)); see also FLA. STAT. § 90.705(2) (2014) (providing that if the defendant 

“establishes prima facie evidence that the expert does not have a sufficient basis 

for the opinion, the opinions and inferences of the expert are inadmissible unless 

the party offering the testimony establishes the underlying facts or data”).

44 State v. Hawthorne, 573 So. 2d 330, 333 n.6 (Fla. 1991).

45 Sanchez v. State, 101 So. 3d 1283, 1286 (Fla. Dist. Ct. App. 2012) (stating that 

“an owner, though presumed competent to testify to the value of stolen property, 

must demonstrate personal knowledge of the characteristics of the stolen 

property, such as the quality, cost, and condition of the property”); Craig v. Craig, 

982 So. 2d 724, 729 (Fla. Dist. Ct. App. 2008) (quoting Sun Bank/N. Fla., N.A. 

v. Edmunds, 624 So. 2d 753, 756 (Fla. Dist. Ct. App. 1993)).

46 See Sanchez, 101 So. 3d at 1286 (“The competence presumed of an owner is 

fragile, and where the owner shows a lack of familiarity with the stolen property, 

the opinion evidence will not support a determination of value. . . . Rather than 

offering a bare opinion, an owner’s estimate of the value of stolen property must 

be supported by facts that show enough familiarity with the property to lend 

credence to the opinion.”); Craig, 982 So. 2d at 729.

47 See, e.g., D.E.M., 109 So. 3d at 1232; Fernandez v. State, 98 So. 3d 730, 731 

(Fla. Dist. Ct. App. 2012) (finding that “the victim’s opinion alone was insufficient 

to support the amount awarded”); Bennett v. State, 944 So. 2d 524, 526 (Fla. 

Dist. Ct. App. 2006) (“A victim’s testimony, without documentation, is not enough 

to support an award of restitution.” (citing State v. Schuette, 782 So. 2d 935, 

937 (Fla. Dist. Ct. App. 2001))); see also 1 CHARLES W. EHRHARDT, EHRHARDT’S 

FLORIDA EVIDENCE § 701.1, at 713 (2013 ed.) (“An owner can testify to the value 

of his or her property although the witness is not qualified as an expert. Most 

decisions require the owner to have adequate knowledge upon which to base the 

opinion. Usually, mere ownership of property, however, does not automatically 

qualify an owner to testify as to the property’s value.”).
11

appraiser, an arsonist burns down the house of a realtor, or a robber takes 

a vehicle from a used-car salesperson are undeniably rare.

Even when the victim makes a good-faith effort to learn the fair market 

value of his or her property prior to testifying, the victim’s opinion may still 

be inadmissible due to the rules of evidence.48 For example, at least one 

Florida court has noted that sometimes it is “practically impossible for the 

victim to establish the restitution amount without relying on hearsay 

evidence.”49 In theory, at least at its origination, a victim’s personal 

knowledge of the value of his or her property is usually based on some 

form of hearsay, such as a receipt,50 an appraisal or estimate,51 or the 

price in a store catalog or on a store website.52 However, because there is 

no statutory exception to the general exclusion of hearsay in restitution 

proceedings,53 Florida courts have unanimously held that if the defense 

properly objects, hearsay evidence is generally inadmissible to determine 

the amount of restitution.54 Thus, because the owner must provide some 

48 See, e.g., Phillips, 141 So. 3d at 705; see also infra note 54 and accompanying 

text; see generally EHRHARDT, supra note 47, at 707.

49 Phillips, 141 So. 3d at 705.

50 Twilegar v. State, 42 So. 3d 177, 199 (Fla. 2010) (stating that a receipt is 

hearsay if “admitted for the truth of the matters asserted (the dates of the 

purchases, the amounts, the locations, and whether the purchases were made in 

cash)”).

51 Leatherwood v. State, 108 So. 3d 1154, 1154–55 (Fla. Dist. Ct. App. 2013) 

(holding that “an appraisal letter from a jeweler to establish the value of the stolen 

jewelry” was hearsay and was insufficient to establish the amount of restitution 

unless properly qualified as a business record); T.J.N. v. State, 977 So. 2d 770, 

773 (Fla. Dist. Ct. App. 2008) (“When testimony concerning the estimated cost of 

repairs to damaged property is ‘offered in evidence to prove the truth of the matter 

asserted,’ it is ‘hearsay’ unless ‘made by the declarant while testifying at the trial 

or hearing.’”); Butler v. State, 970 So. 2d 919, 921 (Fla. Dist. Ct. App. 2007) 

(“Because the written estimate was inadmissible hearsay evidence, we hold that 

the trial court erred in admitting the estimate and basing the value of the exterior 

door solely on this evidence.”).

52 See Phillips, 141 So. 3d at 705 (“Here, the victim’s reliance on hearsay evidence 

from websites resembles a witness’s reliance on hearsay evidence from a catalog 

or contacts with non-witnesses, which courts have held cannot support the 

determination of a restitution amount.”); Gonzalez v. State, 40 So. 3d 86, 89 (Fla. 

Dist. Ct. App. 2010) (“Catalog prices alone are insufficient to establish a sufficient 

predicate.”); Ricci v. State, 550 So. 2d 34, 36 (Fla. Dist. Ct. App. 1989) (“[T]he 

price on the page from the jewelry catalog is inadmissible hearsay.”).

53 See FLA. STAT. § 90.802 (2014) (“Except as provided by statute, hearsay 

evidence is inadmissible.”).

54 See, e.g., T.J.N., 977 So. 2d at 773 (“Hearsay evidence may not be used to 

determine the amount of restitution when there is a proper objection by the 
12

predicate for the valuation he or she offers,55 and hearsay evidence is an 

insufficient basis for the owner’s opinion in Florida,56 many victims will 

not be sufficiently qualified to opine as to their property’s value. 

The general exclusion of hearsay does not mean that hearsay evidence 

is never admissible in a restitution hearing, however. Even when the 

defendant objects, if the hearsay evidence meets an exception to the 

general exclusion rule and has “some minimal indicia of reliability,” the 

hearsay evidence is likely admissible.57 For example, “[w]ritten opinions 

defense to the hearsay evidence.”); Smith v. State, 941 So. 2d 479, 480 (Fla. Dist. 

Ct. App. 2006) (“We reverse and remand for a new restitution hearing because 

the State’s evidence was improperly based on hearsay.”); Johnson v. State, 856 

So. 2d 1085, 1087 (Fla. Dist. Ct. App. 2003) (noting that the testimony used to 

support the restitution award was improper, in part, because it was based on 

hearsay); Herrington v. State, 823 So. 2d 286, 286 (Fla. Dist. Ct. App. 2002) 

(stating that the trial court erred in setting the amount of restitution based on 

hearsay evidence to which the defendant properly objected); Rae v. State, 638 So. 

2d 597, 598 n.1 (Fla. Dist. Ct. App. 1994) (“The trial court erroneously believed 

hearsay evidence was admissible in a restitution hearing. The general rule is that 

hearsay testimony is not admissible in a restitution hearing unless defense 

counsel fails to properly object to the evidence.”). The requirement of an objection 

by the defense is more of a preservation of error requirement than an additional 

requirement to the general rule excluding hearsay. See Molter v. State, 892 So. 

2d 1115, 1117 (Fla. Dist. Ct. App. 2004) (stating that the defendant “waived the 

hearsay objection by failing to raise it” (emphasis added)). 

55 D.E.M. v. State, 109 So. 3d 1229, 1232 (Fla. Dist. Ct. App. 2013) (stating that 

“the victim must have ‘a sufficient predicate’ on which to base an opinion 

regarding the value of the items taken”); Fino v. Nodine, 646 So. 2d 746, 748–49 

(Fla. Dist. Ct. App. 1994) (“Before lay opinion testimony can be properly admitted, 

a predicate must be laid in which the witness testifies as to the facts or 

perceptions upon which the opinion is based.” (citation omitted)).

56 See generally EHRHARDT, supra note 47, at 707 (“Lay opinion based on hearsay 

evidence is not admissible.”).

57 See Box v. State, 993 So. 2d 135, 139 (Fla. Dist. Ct. App. 2008); accord McKown 

v. State, 46 So. 3d 174, 175 (Fla. Dist. Ct. App. 2010). To the extent that the 

“minimal indicia of reliability” requirement has been interpreted by some courts 

as a “relaxed evidentiary standard in restitution hearings,” State v. Davis, 133 

So. 3d 1101, 1106 n.6 (Fla. Dist. Ct. App. 2014), these courts are mistaken. It is 

in fact an additional requirement to the admission of hearsay at sentencing 

originally created by federal courts to safeguard defendants’ right to due process 

because the Confrontation Clause does not apply at sentencing. See Box, 993 

So. 2d at 139 (“We acknowledge that despite the fact that Crawford does not 

apply to restitution hearings, the State is still not permitted to admit any and all 

hearsay. Rather, the trial court may only allow hearsay having some minimal 

indicia of reliability to be injected into the sentencing proceeding.” (citing United 

States v. Littlesun, 444 F.3d 1196, 1199, 1200 (9th Cir. 2006))). It should also 
13

or estimates may qualify as a business record exception to the hearsay 

rule under section 90.803(6), Florida Statutes . . . .”58 But for a written 

opinion or estimate to meet the business record exception, the production 

of estimates must be a regularly conducted business activity, and the State 

must either call a witness to lay the foundational requirements of section 

90.803(6) or establish the foundation by certification or declaration.59

Thus, because written opinions and estimates are unlikely to be selfauthenticating, as noted above, the State must incur the additional time 

and expense of producing an additional witness to testify concerning the 

value of the victim’s property, and even then, the witness may not be 

sufficiently qualified or have enough information to form a reliable basis 

on which to opine.60 Indeed, Florida courts routinely reverse trial courts’ 

restitution awards because the State’s evidence failed to comply with the 

foundational requirements of section 90.803(6).61

be noted that, in Box, the hearsay at issue was a “self-authenticating public 

record[]” and thus did not require an analysis of its admissibility under the 

Florida Evidence Code. Id. at 136; see FLA. STAT. § 90.803(8) (2014) (providing 

that public records and reports are admissible hearsay “unless the sources of 

information or other circumstances show their lack of trustworthiness”).

58 Butler v. State, 970 So. 2d 919, 920 (Fla. Dist. Ct. App. 2007).

59 Id. at 920–21.

60 See supra notes 40–43 and accompanying text.

61 See, e.g., Leatherwood v. State, 108 So. 3d 1154, 1154–55 (Fla. Dist. Ct. App. 

2013) (“Over Leatherwood’s objections, the State sought to introduce an appraisal 

letter from a jeweler to establish the value of the stolen jewelry. However, the 

State failed to properly qualify the letter as a business record pursuant to section 

90.803(6) and section 90.902(11), Florida Statutes (2012).”); McKown, 46 So. 3d 

at 175 (“While the victim had her bank statements with her in court, a predicate 

was not laid for their authenticity or reliability . . . . Without laying that 

foundation, the evidence is inadmissible hearsay.”); Moore v. State, 47 So. 3d 

387, 388 (Fla. Dist. Ct. App. 2010) (reversing the trial court’s restitution order 

where the victim “provided testimony regarding the prices she paid for the items 

she purchased, estimates on the items she received as gifts, and a business card 

on which an employee of a jewelry store had listed the values of the pieces of 

jewelry she purchased from that store”); T.J.N. v. State, 977 So. 2d 770, 773 (Fla. 

Dist. Ct. App. 2008) (reversing the trial court’s restitution award where the “State 

presented the testimony of the insurance adjustor regarding the estimated cost 

of repairs to the damage on the right side of the truck,” and “the insurance 

adjustor revealed that he was basing his testimony on an estimate he had 

received from an auto body shop”); House v. State, 614 So. 2d 677, 677 (Fla. Dist. 

Ct. App. 1993) (reversing the trial court’s restitution order because “[m]uch of the 

documentary evidence on which the state relied was subject to the hearsay rule 

and failed to meet the strict requirements for admissibility under the ‘business 

records’ exception, on which the state relied”).
14

2. Indirect Evidence

To establish fair market value indirectly, the State must present 

evidence of each of the following four factors: “(1) original market cost; (2) 

manner in which the item was used; (3) the general condition and quality 

of the item; and (4) the percentage of depreciation.”62 However, this 

approach undoubtedly requires the testimony of the victim, another 

witness, or both,63 and thus encounters the same evidentiary 

requirements mentioned above.64 For example, if the victim received the 

property by gift or inheritance, as is often the case with jewelry, the victim 

may not be able to testify to the original market cost without speculating 

or relying on hearsay.65 In such circumstances, even if an appraiser is 

hired, he or she will not be able to opine as to the item’s original market 

cost without knowing the details of the item.66 Furthermore, as in 

Hawthorne, many victims will have a difficult time providing the 

percentage of their property’s depreciation because such knowledge is 

typically outside the scope of most laypeople’s experience.67 Yet, if the 

State fails to prove with specificity the percentage of depreciation and the 

trial court makes a good-faith effort to depreciate the item, the appellate 

court will reverse the restitution award because it is error for the court to 

“arbitrarily” depreciate an item.68

62 State v. Hawthorne, 573 So. 2d 330, 332 (Fla. 1991).

63 The victim will often be the only witness who can testify to the manner in which 

the property was used and the general condition and quality of the property, for 

example.

64 See supra Part III.A.1.

65 See Moore, 47 So. 3d at 388 (“The victim’s testimony regarding what the jewelry 

store’s employee told her regarding the estimated value of the unrecovered jewelry 

was improperly admitted hearsay. Additionally, the victim’s testimony regarding 

the items she received as gifts was also insufficient to establish the items’ values 

because the victim did not provide testimony of her own knowledge or opinion 

regarding the values.” (citation omitted)); Peters v. State, 555 So. 2d 450, 451 

(Fla. Dist. Ct. App. 1990) (“Absent a sufficient predicate showing a basis for such 

an opinion, the mere opinion of the victims as to the value of their lost property, 

as here, is insufficient to establish that value. Even less is it sufficient when, 

again as here, the victims’ opinions to a large extent were ‘estimates.’”); Abbott v. 

State, 543 So. 2d 411, 412 (Fla. Dist. Ct. App. 1989) (reversing the trial court’s 

restitution order where “[t]he witness’ estimated figure was arrived at by 

considering the cost to replace the jewelry, relying on purchase receipts, a partial 

appraisal, magazines, and recent purchases of gold,” and where “she conceded 

her lack of knowledge of current market value”).

66 See supra notes 41–43 and accompanying text.

67 See Hawthorne, 573 So. 2d at 332.

68 Thompson v. State, 68 So. 3d 425, 427 (Fla. Dist. Ct. App. 2011) (“Application 

of such an arbitrary percentage of depreciation, without an explanation or record 
15

B. “Fair Amount” Value

“Fair amount” value is a more relaxed standard for measuring the 

victim’s loss because it allows the court to consider “any appropriate 

factor” in determining the amount of restitution to award.69 However, even

when the trial court uses the “fair amount” standard to determine the 

victim’s loss, the rules of evidence still apply.70 Consequently, the court’s 

consideration of any appropriate factor is limited by what evidence the 

State can present in accordance with the rules. 

Moreover, these cases are rare because, as the court noted in 

Hawthorne, “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.”71 Consequently, 

the State must prove fair market value in the majority of cases.72

Therefore, more often than not, the State is faced with the dilemma of 

either spending considerable time and expense to prove the value of 

something that was unjustly taken from the victim or allowing the victim 

to walk away empty-handed for a second time.73

support, was an abuse of discretion.”); Kiefer v. State, 909 So. 2d 572, 574 (Fla. 

Dist. Ct. App. 2005) (stating “there must be sufficient evidence in the record to 

support application of a depreciation rate”). 

69 See Glaubius v. State, 688 So. 2d 913, 915 (Fla. 1997) (stating that “the trial 

court has discretion to take into account any appropriate factor in arriving at a 

fair amount which will adequately compensate a victim for his or her loss and 

further the purposes of restitution”).

70 See State v. Davis, 133 So. 3d 1101, 1106 n.6 (Fla. Dist. Ct. App. 2014) 

(“Although federal law explicitly provides that the federal rules of evidence do not 

apply at sentencing proceedings, the Florida Evidence Code contains no such 

parallel provision.” (citation omitted)).

71 Hawthorne, 573 So. 2d at 333.

72 See id. (“Where it is determined that a restitution amount equal to fair market 

value adequately compensates the victim or otherwise serves the purposes of 

restitution, we agree with the court below that the value should be established 

either through direct testimony or through evidence of the four factors 

announced in Negron.” (footnote omitted)); Fletcher v. State, 800 So. 2d 309, 310 

(Fla. Dist. Ct. App. 2001) (“Although courts are not bound to utilize the fair 

market value method of valuation and may exercise such discretion as is required 

to further the purposes of restitution, fair market value is to be used where it 

would adequately compensate the victim. Absent evidence that the item taken 

was a family heirloom or a new automobile, for which fair market value would 

not adequately compensate the victim, fair market value is the valuation method 

to be used.” (citation omitted)).

73 See supra Part III.A.
16

IV. THE FOURTH DISTRICT COURT OF APPEAL’S PROPOSAL

Unfortunately, when the State cannot prove the amount of a victim’s 

loss, it causes unjust results that conflict with the purposes of restitution 

proceedings. For example, in Phillips v. State, the defendant stole several 

items of jewelry from the victim.74 However, because the victim did not 

purchase many of the items, she did not have “first-hand knowledge of the 

[jewelry’s] purchase date, original value, or quality.”75 As a result, to 

determine the fair market value of her jewelry, the victim conducted online 

research, located three or four pieces that were similar, and averaged their 

prices.76 Following a restitution hearing in which she testified to the 

average prices of all of her stolen jewelry, the trial court ordered the 

defendant to pay restitution to the victim in the amount of $20,511, the 

total of her averages.77

On appeal, the Fourth District Court of Appeal of Florida (“Fourth DCA”) 

reversed and remanded for a new evidentiary hearing, finding that as the 

law currently exists, “the victim’s reliance on hearsay evidence from 

websites was insufficient to establish the restitution amount.”78 But in 

doing so, the court acknowledged that establishing the restitution amount 

without relying on hearsay was “practically impossible” and that reversal 

“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” on remand.79

In addition, the court recognized that other Florida courts recently 

reversed restitution awards, leaving “wholly innocent person[s] . . . with a 

more difficult, if not impossible, path to recover their stolen items’ value.”80

Accordingly, the Fourth DCA recommended that the Florida Legislature 

revisit section 775.089 and “consider providing trial courts with wider 

discretion in setting the restitution amount.”81 Specifically, the court 

recommended adding the following language to section 775.089(7): “The 

court is not bound by fair market value as the sole standard for 

determining restitution amounts, but rather may exercise such discretion 

74 Phillips v. State, 141 So. 3d 702, 703 (Fla. Dist. Ct. App. 2014) (per curiam).

75 Id. at 705.

76 Id. at 703.

77 Id. at 704–05.

78 Id. at 705.

79 Id.

80 Phillips, 141 So. 3d at 706.

81 Id.
17

as required to further the purposes of restitution, including consideration 

of hearsay.”82

When broken down, the Fourth DCA’s recommendation has three 

components. First, it explicitly states that the court is not required to use 

fair market value to measure the victim’s loss.83 Second, it provides the 

court with discretion necessary “to further the purposes of restitution” in 

determining restitution amounts.84 Third, it permits the use of hearsay 

evidence in restitution proceedings.85

A. Advantages

From a public policy standpoint, there are significant advantages and 

only minor disadvantages to adopting the Fourth DCA’s more relaxed 

framework to measuring and proving the amount of the victim’s loss in a 

restitution hearing. One advantage is that it would alleviate onerous 

requirements of proof in restitution hearings. Importantly, restitution is a 

post-adjudication sentencing proceeding.86 Therefore, the defendant’s 

guilt has already been stipulated to or determined beyond a reasonable 

doubt. In adopting section 775.089, it is unlikely that the Florida 

Legislature intended to turn sentencing proceedings into “complicated, 

prolonged trials of the normal civil variety.”87 Instead, restitution 

proceedings should be “expedient and reasonable, with uncertainties 

resolved with a view toward achieving fairness to the victim.”88 By giving 

82 Id. In Schenk v. State, a case similar to Phillips, the Fifth District Court of 

Appeal of Florida subsequently joined the Fourth DCA’s recommendation. 

Schenk v. State, 150 So. 3d 275, 276 (Fla. Dist. Ct. App. 2014).

83 Phillips, 141 So. 3d at 706–07.

84 Id.

85 Id.

86 See White v. State, 21 So. 3d 77, 79 (Fla. Dist. Ct. App. 2009) (“A restitution 

hearing is part of sentencing and requires the presence of counsel.” (citing 

Moment v. State, 645 So. 2d 502, 503 (Fla. Dist. Ct. App. 1994))); Kittelson v. 

State, 980 So. 2d 533, 535 (Fla. Dist. Ct. App. 2008) (stating that “[r]estitution is 

a mandated part of sentencing”).

87 Cf. United States v. Gordon, 393 F.3d 1044, 1060 (9th Cir. 2004) (Fernandez, 

J., concurring and dissenting); Dolan v. United States, 560 U.S. 605, 613 (2010) 

(stating that a federal restitution “statute seeks speed primarily to help the 

victims of crime and only secondarily to help the defendant.”); United States v. 

Faxon, 689 F. Supp. 2d 1344, 1356 (S.D. Fla. 2010) (stating that restitution “is 

not a civil matter even though restitution resembles a judgment for the benefit of 

a particular victim”).

88 Gordon, 393 F.3d at 1048 (majority opinion); see also United States v. 

Balentine, 569 F.3d 801, 804 (8th Cir. 2009) (stating that “the procedural 
18

the trial court broader discretion in determining restitution amounts, and 

by allowing hearsay evidence to prove the amount of loss sustained by the 

victim, the Fourth DCA’s proposal will save the State, the courts, and the 

victim considerable time and expense at sentencing.

Furthermore, while victims of crime may still pursue a damages award 

in a separate, civil lawsuit,89 the Florida Legislature specifically adopted 

the restitution statute for the benefit of crime victims.90 Restitution is 

“intended to provide an additional alternative to reimburse a crime victim, 

over and above traditional remedies like a civil lawsuit.”91 However, 

holding the State to the same requirements of those in a full-fledged civil 

lawsuit undermines the primary purpose of restitution because it makes 

it less likely that the victim will be compensated for their loss.92 As one 

Florida judge explained, “the goal of the criminal justice system should be 

to strive to allow full compensation to victims—not to make them victims 

twice.”93 Thus, adopting the Fourth DCA’s recommendation would not 

only save considerable time and money, it would also limit unjust results 

by better serving the primary purpose of the restitution statute.94

requirements of [restitution statutes] are intended to protect victims, ‘not the 

victimizers.’” (quoting United States v. Grimes, 173 F.3d 634, 639 (7th Cir. 

1999))); Dohrmann v. United States, 442 F.3d 1279, 1281 (11th Cir. 2006) 

(holding that “Apprendi does not apply to a restitution order”); cf. Norman v. 

State, 468 So. 2d 1063, 1065–66 (Fla. Dist. Ct. App. 1985) (Nimmons, J., 

concurring and dissenting) (“The same rigidities in proof of value which are 

required of the state in the trial of criminal cases involving value as an essential 

element of the crime should not, in my view, always be imposed in the 

determination of an appropriate amount of restitution.”).

89 FLA. STAT. § 775.089(8) (2014) (“An order of restitution hereunder will not bar 

any subsequent civil remedy or recovery, but the amount of such restitution shall 

be set off against any subsequent independent civil recovery.”).

90 State v. Hitchmon, 678 So. 2d 460, 462 (Fla. Dist. Ct. App. 1996).

91 Id. (citing Spivey v. State, 531 So. 2d 965, 967 (Fla. 1988)).

92 See Paroline v. United States, 134 S. Ct. 1710, 1724 (2014) (“Aside from the 

manifest procedural differences between criminal sentencing and civil tort 

lawsuits, restitution serves purposes that differ from (though they overlap with) 

the purposes of tort law. Legal fictions developed in the law of torts cannot be 

imported into criminal restitution and applied to their utmost limits without due 

consideration of these differences.” (citation omitted)); supra Part III.

93 Thompson v. State, 68 So. 3d 425, 427 (Fla. Dist. Ct. App. 2011) (Polen, J., 

concurring).

94 See Santana v. State, 795 So. 2d 1112, 1113 (Fla. Dist. Ct. App. 2001) (“The 

primary objectives of restitution awards pursuant to section 775.089 are to give 

the criminal defendant an opportunity to make amends and to make the victim 

of a crime whole, at least to the extent it is possible to do so.”).
19

Adopting the Fourth DCA’s suggestion would also give the trial court 

the discretion it needs to establish a restitution amount that adequately 

instills upon the defendant the consequences of his or her actions.95

Mandatory restitution is an important aspect of sentencing defendants, in 

part, because it “impress[es] upon offenders that their conduct produces 

concrete and devastating harms for real, identifiable victims.”96 Moreover, 

the secondary purpose of restitution is “to serve the rehabilitative, 

deterrent, and retributive goals of the criminal justice system.”97 The 

Supreme Court of Florida previously recognized that “[t]he trial court is 

best able to determine how imposing restitution may best serve those goals 

in each case.”98

However, the current state of the law severely limits the trial court’s 

ability to determine an appropriate restitution amount at sentencing. 

Florida Rule of Criminal Procedure 3.720(b) provides that “[t]he court shall 

entertain submissions and evidence by the parties that are relevant to the 

sentence.”99 To the extent that restitution is an important aspect of 

sentencing,100 hearsay evidence is often relevant to the defendant’s 

sentence because, as mentioned above, it is helpful, and sometimes 

necessary, to determine the amount of loss sustained by the victim as a 

result of the defendant’s criminal offense.101 Section 775.089 in fact 

requires the court to consider the amount of the victim’s loss in 

determining whether to order any restitution at all.102 Nonetheless, 

95 Cf. Paroline, 134 S. Ct. at 1729 (“District courts routinely exercise wide 

discretion both in sentencing as a general matter and more specifically in 

fashioning restitution orders.”); id. at 1734 (Roberts, C.J., dissenting) (“It is true 

that district courts exercise substantial discretion in awarding restitution and 

imposing sentences in general.”). 

96 Id. at 1727 (majority opinion).

97 Glaubius v. State, 688 So. 2d 913, 915 (Fla. 1997).

98 Spivey v. State, 531 So. 2d 965, 967 (Fla. 1988); see also Noel v. State, 127 So. 

3d 769, 774, 778 (Fla. Dist. Ct. App. 2013) (recognizing that “restitution to victims 

is a central ‘penological interest’ of Florida criminal law,” and concluding that it 

was not a denial of due process for the trial court to give the defendant “the 

opportunity to mitigate ‘the severity of an otherwise appropriate sentence’ by 

paying restitution to the victims in an amount he indicated he could afford”), 

review granted, 153 So. 3d 907 (Fla. 2014) (unpublished table decision).

99 FLA. R. CRIM. P. 3.720(b); see also State v. Davis, 133 So. 3d 1101, 1106 n.6 

(Fla. Dist. Ct. App. 2014) (stating that rule 3.720(b) “does not define the term 

‘submissions’ and neither expressly permits nor prohibits the admission of 

hearsay evidence”).

100 See supra notes 96–97 and accompanying text.

101 See supra notes 49–52, 55 and accompanying text.

102 FLA. STAT. § 775.089(6)(a) (2014).
20

although hearsay evidence is admissible in other sentencing proceedings 

in Florida, such as probation revocation hearings103 and capital 

sentencing proceedings,104 hearsay is still inadmissible in restitution 

hearings.105 As a result, when the State cannot prove the amount of the 

victim’s loss without relying on hearsay, the court cannot order the 

defendant to pay restitution, and the defendant may not appreciate the 

full effect of his illegal acts. 

Relatedly, once the court has determined that monetary restitution is 

appropriate in an individual case, it should have broad discretion in 

fashioning a restitution order.106 In Hawthorne, the court held that the 

trial court is not tied to fair market value as the sole standard for 

measuring the victim’s loss, but rather, it “may exercise such discretion 

as required to further the purposes of restitution.”107 However, the court 

limited its holding to instances when fair market value is an inappropriate 

measure of the victim’s loss.108 Therefore, in most instances, the trial 

court must use fair market value to determine the amount of the victim’s 

loss, which means that the State must present a witness with personal 

knowledge of the fair market value of the victim’s loss, or the State must 

present evidence of all four fair market value factors.109

While the holding in Hawthorne certainly improved the law governing 

restitution proceedings, it failed to address instances when fair market 

value may adequately reflect the victim’s loss, but the State is unable to 

meet the demanding criteria to prove fair market value. In such 

103 Russell v. State, 982 So. 2d 642, 646 (Fla. 2008) (“It is undisputed that 

hearsay evidence is admissible in a probation revocation hearing to prove a 

violation of probation.”).

104 FLA. STAT. § 921.141(1) (2014) (“Any such evidence which the court deems to 

have probative value may be received, regardless of its admissibility under the 

exclusionary rules of evidence, provided the defendant is accorded a fair 

opportunity to rebut any hearsay statements.”).

105 See sources cited supra notes 53–54.

106 Paroline v. United States, 134 S. Ct. 1710, 1727–28 (2014) (quoting 18 U.S.C. 

§ 3664(a)); see source cited supra note 95.

107 State v. Hawthorne, 573 So. 2d 330, 333 (Fla. 1991).

108 See id. (“Where it is determined that a restitution amount equal to fair market 

value adequately compensates the victim or otherwise serves the purposes of 

restitution, we agree with the court below that the value should be established 

either through direct testimony or through evidence of the four factors 

announced in Negron.” (footnote omitted)).

109 See id. (“We recognize that 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.”); supra

Part III.A.
21

circumstances, the victim is left without recourse, and the defendant 

receives a windfall for his actions. Rather than give the court broad 

discretion in rare instances when fair market value is inappropriate to 

measure the victim’s loss, the court should have discretion to take into 

account any appropriate factor in all instances.110 The Fourth DCA’s 

recommendation simply adopts the approach taken in Hawthorne, but 

permits it in all circumstances. This is a reasonable approach considering 

the fact that case law subsequent to Hawthorne suggests that the 

defendant can easily defeat the State’s presentation of evidence concerning 

fair market value by objecting to hearsay or speculation, or by noting that 

not all of the factors pertaining to fair market value have been proved by 

competent, substantial evidence.111

B. Disadvantages

A disadvantage of the Fourth DCA’s recommendation is that it failed to 

provide an alternative measure of the victim’s loss. Although the Fourth 

DCA reiterated the holding in Hawthorne that the trial court is not tied to 

“fair market value as the sole standard for determining restitution 

amounts,”112 it did not say what standard the court should use when fair 

market value is not used. Nevertheless, case law subsequent to 

110 See Paroline, 134 S. Ct. at 1728 (“There are a variety of factors district courts 

might consider in determining a proper amount of restitution, and it is neither 

necessary nor appropriate to prescribe a precise algorithm for determining the 

proper restitution amount at this point in the law’s development. Doing so would 

unduly constrain the decisionmakers closest to the facts of any given case.”); 

United States v. Boccagna, 450 F.3d 107, 116 (2d Cir. 2006) (“Notwithstanding 

the general reliability of fair market value as a measure of property value, in some 

circumstances other measures of value may more accurately serve the statutory 

purpose to ensure a crime victim’s recovery of the full amount of his loss.”).

111 See, e.g., Hunter v. State, 48 So. 3d 174, 176 (Fla. Dist. Ct. App. 2010) (“The 

trial court erred in establishing the amount of restitution because the victim 

could not identify all of the items that had been taken, relied on hearsay evidence 

to establish value, and failed to take into account depreciation.”); Mansingh v. 

State, 588 So. 2d 636, 638 (Fla. Dist. Ct. App. 1991) (reversing the trial court’s 

restitution order “because the state presented evidence on only one of the 

[Negron] four factors”); see also Thompson v. State, 68 So. 3d 425, 427 (Fla. Dist. 

Ct. App. 2011) (Polen, J., concurring) (stating that “objections of hearsay as to 

sources of information as to value [and the] absence of receipts for items bought 

years earlier” “make it more difficult for a victim to prove the ‘fair market value’ 

of their stolen property”); cf. Matthew C. Lucas, Valuing the Marital Home, 88, 

no.4 FLA. B.J., 8, 9 (2014) (stating that “[d]ivining the most probable price for a 

property’s fair market value poses an interesting challenge in the law” in part 

because “the analysis inherently requires elements of speculation”).

112 Hawthorne, 573 So. 2d at 333.
22

Hawthorne established that “fair amount” value is the appropriate, 

alternative measure to fair market value.113 As with replacement value 

and retail value, “fair amount” value may ultimately be the same as fair 

market value.114 Yet, the method of proof of “fair amount” value is much 

more conducive to accomplishing the purposes of restitution because it is 

intentionally broad and allows the court to consider any appropriate factor 

in determining the amount of restitution to award.115 Thus, the fact that 

the Fourth DCA did not provide an alternative measure of value should 

not prevent adoption of the Fourth DCA’s proposal; “fair amount” value is 

implicitly the measure of value under the Fourth DCA’s proposal.

A related disadvantage of the Fourth DCA’s proposal is that without a

definite standard to guide the court’s determination of the victim’s loss, 

the trial court may appear to have too much discretion, which may result 

in a windfall for the victim. However, at least in theft cases, it is highly 

unlikely that a trial court’s restitution award would exceed any possible 

judgment in a civil action because, in a civil action, the victim may claim 

treble damages and attorneys’ fees in addition to the property loss.116

Moreover, safeguards in the law already protect against trial courts 

abusing their discretion. For example, even when the court uses “fair 

amount” value to determine the victim’s loss, the trial court’s restitution 

order must still be supported by competent, substantial evidence.117 In 

addition, the trial court may only award restitution in an amount causally 

connected to the defendant’s crime.118 Thus, even with more discretion, 

courts would not be able to award restitution in an arbitrary amount that 

favors the victim at the expense of the defendant’s right to due process.119

Moreover, while the purpose of restitution is not to create a windfall for 

the victim,120 it is certainly not to create one for the defendant either. In 

113 See Glaubius v. State, 688 So. 2d 913, 915 (Fla. 1997).

114 See supra notes 23–24, 26 and accompanying text.

115 See Glaubius, 688 So. 2d at 915; text accompanying supra note 31.

Importantly, section 775.089, Florida Statutes, is not subject to a void-forvagueness challenge because it does not penalize any conduct. See State v. 

Brake, 796 So. 2d 522, 527 (Fla. 2001) (“In order for a criminal statute to 

withstand a void-for-vagueness challenge, the language of the statute must 

provide adequate notice of the conduct it prohibits when measured by common 

understanding and practice.”).

116 See S.M. v. State, 159 So. 3d 966, 968 n.1 (Fla. Dist. Ct. App. 2015) (citing § 

772.11(1), Fla. Stat. (2012)).

117 See supra note 18 and accompanying text.

118 See supra note 11 and accompanying text.

119 See supra note 17 and accompanying text.

120 Glaubius, 688 So. 2d at 916.
23

other contexts, Florida laws are much more forgiving where one party is 

the cause of a lack of evidence favorable to the other party. For example, 

section 90.804, Florida Statutes, provides that hearsay evidence is 

admissible if the opposing party “wrongfully caused, or acquiesced in 

wrongfully causing, the declarant’s unavailability as a witness, and did so 

intending that result.”121 Case law provides that criminal charges must 

be dismissed if the prosecution destroys exculpatory evidence in bad 

faith.122 There are even independent causes of action, both civil and 

criminal, for intentionally destroying evidence that hinders the opposing 

party’s ability to prove its case.123 The principle that supports all of these 

laws is that the party responsible for the intentional destruction of 

evidence should not benefit from its bad-faith actions, and the party 

relying on the evidence should not be penalized for the bad-faith acts of 

another. Similarly, in the context of restitution proceedings, the State has 

proven or the defendant concedes that he has wrongfully caused loss or 

damage to property that could otherwise be used to determine its value. 

Thus, in light of the aforementioned principle, the law should be less 

concerned with providing windfalls to victims, and more tolerant of victims’ 

inability to testify to the amount of restitution when their inability is due 

largely to no fault of their own. The Fourth DCA’s suggestion simply 

acknowledges this principle by alleviating strict requirements of proof in a 

restitution hearing.

Another potential disadvantage of the Fourth DCA’s suggestion 

concerns the admission of hearsay. When hearsay is permissible as the 

121 FLA. STAT. § 90.804(f) (2014).

122 State v. Milo, 596 So. 2d 722, 723 (Fla. Dist. Ct. App. 1992) (“Willful, 

intentional destruction of evidence requires sanctions. Bad faith destruction of 

evidence requires dismissal of the charges.” (citing Louissaint v. State, 576 So. 

2d 316 (Fla. Dist. Ct. App. 1990))).

123 See FLA. STAT. § 918.13 (2014) (providing that it is a third-degree felony for 

any “person, knowing that a criminal trial or proceeding or an investigation by a 

duly constituted prosecuting authority, law enforcement agency, grand jury or 

legislative committee of this state is pending or is about to be instituted, [to] . . . 

[a]lter, destroy, conceal, or remove any record, document, or thing with the 

purpose to impair its verity or availability in such proceeding or investigation”); 

Royal & Sunalliance v. Lauderdale Marine Ctr., 877 So. 2d 843, 845 (Fla. Dist. 

Ct. App. 2004) (“The essential elements of a [civil] spoliation of evidence claim 

are: ‘(1) existence of a potential civil action, (2) a legal or contractual duty to 

preserve evidence which is relevant to the potential civil action, (3) destruction of 

that evidence, (4) significant impairment in the ability to prove the lawsuit, (5) a 

causal relationship between the evidence destruction and the inability to prove 

the lawsuit, and (6) damages.’” (quoting Hagopian v. Publix Supermarkets, Inc., 

788 So. 2d 1088, 1091 (Fla. Dist. Ct. App. 2001))). 
24

only evidence offered to support the trial court’s award of restitution, the 

result may be questionable. For example, whether due to poor memory, 

improper incentive, or other reasons, victims may exaggerate the true 

value of their property.124 The reliability of evidence is in fact the core 

concern underlying the general exclusion of hearsay evidence.125

Concern for the reliability of hearsay evidence should not prevent 

adoption of the Fourth DCA’s proposal, however, because Florida courts 

already require that for hearsay to be admissible, it must contain “some 

minimal indicia of reliability.”126 In addition, not all hearsay is a verbal 

assertion by the witness. In many instances, the State offers documentary 

evidence of value, which is generally considered more reliable than oral 

hearsay,127 and is verifiable by the defendant and the court, but the 

evidence is nevertheless turned away due to the general exclusion of 

hearsay in restitution proceedings.128 In such circumstances, if the trial 

court finds the documentary evidence to be sufficiently reliable, it is 

unclear why the victim or the State is nonetheless required to incur the 

expense and inconvenience of presenting an additional witness to recount 

what is already stated in the document.

A related disadvantage of allowing hearsay, including documentary 

hearsay, is that the defendant may not have the opportunity to crossexamine the declarant on matters such as the declarant’s qualifications 

124 Schering Corp. v. Pfizer Inc., 189 F.3d 218, 232 (2d Cir.), as amended on reh’g, 

(Sept. 29, 1999) (“The hearsay rule is generally said to exclude out-of-court 

statements offered for the truth of the matter asserted because there are four 

classes of risk peculiar to this kind of evidence: those of (1) insincerity, (2) faulty 

perception, (3) faulty memory and (4) faulty narration, each of which decreases 

the reliability of the inference from the statement made to the conclusion for 

which it is offered.” (citations omitted)).

125 See id.; Lee v. Illinois, 476 U.S. 530, 543 (1986) (stating that hearsay evidence 

that “does not fall within ‘a firmly rooted hearsay exception’ . . . is thus 

presumptively unreliable”).

126 Box v. State, 993 So. 2d 135, 139 (Fla. Dist. Ct. App. 2008); accord McKown 

v. State, 46 So. 3d 174, 175 (Fla. Dist. Ct. App. 2010).

127 See United States v. Redd, 318 F.3d 778, 784 (8th Cir. 2003) (“Documentary 

hearsay evidence generally provides greater indicia of reliability than oral 

hearsay. This distinction is reflected in numerous long-standing exceptions to 

the hearsay rule.”).

128 See, e.g., Butler v. State, 970 So. 2d 919, 921 (Fla. Dist. Ct. App. 2007) 

(“Because the written estimate was inadmissible hearsay evidence, we hold that 

the trial court erred in admitting the estimate and basing the value of the exterior 

door solely on this evidence.”).
25

and his or her methods or factors used to value the property.129 However, 

this concern should also not prevent adoption of the Fourth DCA’s 

proposal for at least two reasons. First, at least one Florida court has 

previously concluded that the Sixth Amendment’s Confrontation Clause 

“does not apply in restitution hearings because restitution proceedings are 

an aspect of sentencing.”130 Therefore, the defendant does not have a 

constitutional right to confront witnesses against him in a restitution 

hearing.131

Second, the trial court’s ability to discern truth from falsity and to 

assign weight to evidence in a restitution hearing should not be 

underestimated or substituted. For the same reason appellate courts defer 

to the trial court’s determinations of facts in general, the trial court’s 

decisions concerning the credibility of witnesses and the weight to give to 

evidence in restitution proceedings should not be second-guessed on 

appeal.132 While sitting as trier of fact, the trial court is in the best position 

to evaluate the victim’s testimony or other evidence offered by the State.133

129 See Hochstadt v. Sanctuary Homeowner’s Ass’n, Inc., 761 So. 2d 1163, 1165 

(Fla. Dist. Ct. App. 2000) (stating that “the opinion of the appraiser as a witness 

would be subject to cross-examination as to qualifications, as well as in other 

areas, and that safeguard alleviates the concerns we have about admitting only 

the records”); see also BLACK’S LAW DICTIONARY 838 (10th ed. 2014) (stating that 

“[t]he chief reasons for the [hearsay] rule are that out-of-court statements 

amounting to hearsay are not made under oath and are not subject to crossexamination”).

130 Box v. State, 993 So. 2d 135, 139 (Fla. Dist. Ct. App. 2008). The court also 

reiterated that “the State is still not permitted to admit any and all hearsay” and 

that “the trial court may only allow hearsay having some minimal indicia of 

reliability.” Id.

131 Id.

132 See Shaw v. Shaw, 334 So. 2d 13, 16 (Fla. 1976) (“It is clear that the function 

of the trial court is to evaluate and weigh the testimony and evidence based upon 

its observation of the bearing, demeanor and credibility of the witnesses 

appearing in the cause. It is not the function of the appellate court to substitute 

its judgment for that of the trial court through re-evaluation of the testimony and 

evidence from the record on appeal before it. The test . . . is whether the judgment 

of the trial court is supported by competent evidence. Subject to the appellate 

court’s right to reject ‘inherently incredible and improbable testimony or 

evidence,’ it is not the prerogative of an appellate court, upon a de novo 

consideration of the record, to substitute its judgment for that of the trial court.” 

(footnote omitted)).

133 See Stephens v. State, 748 So. 2d 1028, 1034 (Fla. 1999) (“We recognize and 

honor the trial court’s superior vantage point in assessing the credibility of 

witnesses and in making findings of fact. The deference that appellate courts 

afford findings of fact based on competent, substantial evidence is an important 
26

Moreover, even when hearsay is admissible in a restitution proceeding, the 

defendant may cross-examine any witness that does testify and may 

introduce contrary evidence—including reliable hearsay evidence—in his 

or her defense.134 Thus, with these considerations in mind, the 

admissibility of hearsay in a restitution proceeding should not prevent the 

adoption of the Fourth DCA’s recommendation.

* * * *

CONCLUSION

Due to the unjust results that can occur when the court has limited 

discretion and when the State must meet onerous requirements to prove 

the amount of loss sustained by the victim of a crime, the Florida 

Legislature should revise section 775.089 to better conform to the 

purposes of restitution proceedings, which are both compensatory and 

punitive. Recognizing that many victims cannot testify to the fair market 

value of their property, the Fourth DCA recommended providing the trial 

court with broader discretion to further the purposes of restitution. In 

addition, the Fourth DCA’s proposal does not require the court to use fair 

market value in determining the amount of the victim’s loss and expressly 

permits the admission of hearsay evidence in restitution proceedings. As 

such, the Fourth DCA’s proposal offers a great starting point in revising 

section 775.089 because it relaxes both the measurement of value and the 

method of proof in restitution proceedings. However, the Fourth DCA’s 

proposal does not explicitly address important concerns, such as the 

appropriate measure of value, the lack of reliability of hearsay evidence, 

and the defendant’s right to due process. Thus, in light of the concerns 

mentioned above, the Florida Legislature should adopt the Fourth DCA’s 

proposal, but with the following three caveats that incorporate aspects of 

the federal standard.141

principle of appellate review.” (citations omitted)); see, e.g., Henry v. State, 840 

So. 2d 1170, 1171 (Fla. Dist. Ct. App. 2003) (stating that the trial court concluded 

that the defendant’s testimony concerning the amount of money she 

misappropriated “lacked credibility”).

134 See Del Valle v. State, 80 So. 3d 999, 1020 (Fla. 2011) (Lewis, J., dissenting) 

(“A defendant has the ability to defeat the imposition of a restitution order, or the 

amount, if he or she successfully contests the validity of any damage or loss 

allegedly caused to a victim by the defendant’s crime.”); Faurisma v. State, 61 So. 

3d 497, 497–98 (Fla. Dist. Ct. App. 2011 ) (per curiam) (reversing the trial court’s 

restitution order because the defendant was not given an opportunity to be 

heard).

141 As with any change in statutory law, there may be unanticipated problems 

that arise in the future. However, because the recommendation mirrors the 
27

First, because the Fourth DCA’s proposal does not provide an 

alternative measure to fair market value, the statute should explain that 

the court may use “fair amount” value to determine the amount of the 

victim’s loss in all circumstances.142 Second, although some Florida 

courts already provide that hearsay must contain “some minimal indicia 

of reliability” to be admissible in a restitution hearing, it would be wise to 

include this language explicitly in the statute as well.143 Third, because 

the Confrontation Clause does not apply at sentencing, the Legislature 

should consider providing the defendant with an opportunity to rebut or 

refute any hearsay evidence that is offered by the State, as is already done 

in Florida capital sentencing proceedings.144

In accordance with the Fourth DCA’s recommendation, and the caveats 

mentioned above, section 775.089(7) should ultimately read as follows, 

with the suggested changes in italics:

Any dispute as to the proper amount or type of restitution 

shall be resolved by the court by the preponderance of the 

evidence. In determining restitution amounts, the court may 

exercise discretion as required to further the purposes of 

restitution. The court may consider any appropriate factor in 

awarding a fair amount that adequately compensates the 

victim. The burden of demonstrating the amount of the loss 

sustained by a victim as a result of the offense is on the state 

attorney. The burden of demonstrating the present financial 

resources and the absence of potential future financial 

resources of the defendant and the financial needs of the 

defendant and his or her dependents is on the defendant. The 

burden of demonstrating such other matters as the court 

federal standard, there is an entire body of federal case law that will aid in 

addressing these problems. 

142 For purposes of this Article, “fair amount” value and a “reasonable 

approximation” of value are treated as the same, at least in terms of monetary 

value measurements. See supra note 137.

143 This does not mean that the hearsay evidence must meet an established 

exception. See supra note 139. “To show that the evidence lacks ‘minimal indicia 

of reliability’ a defendant must establish ‘(1) that the challenged evidence is 

materially false, and (2) that it actually served as a basis for the [restitution 

order].’” Bourne, 130 F.3d at 1447 (quoting Hairston, 888 F.2d at 1353).

“Whether hearsay evidence is reliable, and thus admissible, is a determination 

left to the discretion of the sentencing judge.” United States v. Gerstein, 104 F.3d 

973, 978 (7th Cir. 1997).

144 See supra notes 57, 104, 130, 139.
28

deems appropriate is upon the party designated by the court 

as justice requires. Hearsay evidence is admissible in 

restitution proceedings if the hearsay evidence is found by the 

court to have a minimal indicia of reliability. The defendant 

may refute hearsay evidence offered by the state attorney.

In addition, because the above proposal permits the court to use discretion 

“to further the purposes of restitution,” but the purposes of restitution do 

not appear anywhere in section 775.089, the Florida Legislature should 

explicitly include the purposes of restitution at the forefront of the statute. 

With the implementation of these suggested changes, the purposes of 

section 775.089 are more likely to be accomplished, which means that 

defendants who cause loss to innocent victims are less likely to receive a 

windfall for their criminal actions and that victims of crime are more likely 

to be compensated for their losses. 

* * *

Not final until disposition of timely filed motion for rehearing.