DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

ROBERT MORRILL,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D18-781

[April 3, 2019]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Timothy L. Bailey, Judge; L.T. Case No. 

17000131CF10A.

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

Public Defender, West Palm Beach, for appellant.

Ashley B. Moody, Attorney General, Tallahassee, and Joseph D. 

Coronato, Jr., Assistant Attorney General, West Palm Beach, for appellee.

FORST, J.

Appellant Robert Morrill pled guilty to dealing in stolen property, false 

ownership, grand theft, and possession of a controlled substance. He 

pleaded in exchange for a withhold of adjudication, three years’ probation, 

and his agreement to pay restitution. He raises four issues on appeal, and 

we reverse on one (and affirm without discussion regarding the other 

issues). We agree that the trial court erred in determining that the State 

met its burden of proving a stolen necklace was worth $2,200, and remand 

for further proceedings.

Background

At the change of plea hearing, the victim testified that his twenty-four 

inch, eighteen karat gold, Gucci necklace was taken. He noted that it had 

been given to him by his deceased partner as a gift, and thus had 

“extreme[]” sentimental value. As it was a gift, he did not have a sales 

receipt. The victim estimated its value at $2,200, explaining that “I priced 

other ones out for replacements and that was between 22 and 2400.” 
2

When asked, “Did you ever have it valued by any jeweler or any other 

way?,” the victim responded that he “went on to comparison of what I 

had[,] that is how I got the evaluation, value of it.” He did not proffer any 

documentation or evidence of the necklace’s price, hearsay or otherwise. 

The victim did, however, note that he had possessed a photo of the 

necklace prior to the theft, but he had given it to law enforcement and it 

had not been returned.

Defense counsel objected, arguing the testimony did not establish the 

necklace’s fair market value and was based on hearsay. The trial court 

found that property owners are generally qualified to testify as to their 

property’s value. It concluded the victim corroborated his opinion with 

online research and ordered $2,200 in restitution for the necklace. This 

appeal followed.

Analysis

“A trial court’s determination of the amount of restitution is reviewed 

for an abuse of discretion. The state bears the burden of proving the 

amount of restitution, and the restitution award must be supported by 

competent substantial evidence.” Davis v. State, 244 So. 3d 374, 377 (Fla. 

4th DCA 2018) (citation omitted). The evidence of restitution “must be 

established through more than mere speculation; it must be based on 

competent evidence.” Bennett v. State, 944 So. 2d 524, 525 (Fla. 4th DCA 

2006) (quoting Glaubius v. State, 688 So.2d 913, 916 (Fla. 1997)).

Fair market value is the standard for restitution, unless it would 

inadequately compensate the victim, such as theft of a family heirloom. 

Davis, 244 So. 3d at 377. While victims are qualified to testify to the value 

of their property, they must testify directly to fair market value or establish 

it with 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.” State v. Hawthorne, 

573 So. 2d 330, 332 (Fla. 1991).

This Court has remanded after the failure to prove some of the four 

elements numerous times. See, e.g., Toole v. State, 44 Fla. L. Weekly D512

(Fla. 4th DCA Feb. 20, 2019) (testimony as to the original price and the 

“guesstimated” replacement value determined to be inadequate); T.D.C. v. 

State, 117 So. 3d 809, 811 (Fla. 4th DCA 2013) (remanding because the 

court did not have evidence of the fair market value at the time of the 

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

(remanding when only evidence of purchase date and price was presented); 
3

Wolff v. State, 981 So. 2d 651, 653 (Fla. 4th DCA 2008) (remanding due to 

“absen[ce] of any evidence of the fair market value of the stolen 

equipment”).

“Where restitution is part of a plea bargain, it should be liberally 

construed in favor of making the victim whole.” Yaun v. State, 898 So. 2d 

1016, 1017 (Fla. 4th DCA 2005) (quoting Hercule v. State, 655 So. 2d 1256, 

1257 (Fla. 3d DCA 1995)). Additionally, “where a plea agreement leaves 

restitution to the trial court’s discretion, reversal is not warranted absent 

a clear showing that the trial court abused its discretion.” Id. (citing 

Montalvo v. State, 705 So. 2d 984, 986 (Fla. 3d DCA 1998)). Nonetheless, 

even under this more liberal standard of review, as the State in this case

failed to provide competent evidence as to any of the Hawthorne factors,

we must conclude that the trial court’s holding constitutes an abuse of 

discretion. 

The victim expressly testified to an estimated replacement value of the 

necklace, not the original market cost (which was unknown). This 

“estimate” was based merely on the victim noting that he had “priced other 

ones out for replacements and that was between 22 and 2400.” Although 

the court found that victim corroborated his opinion with online research, 

the victim did not identify the sources that he relied upon for his estimates. 

If he did, in fact, use the internet, there was no evidence of the details of 

his internet search and the results of that search. Regardless of how the 

victim made the comparison to reach his estimate, the victim appears to 

have relied entirely on hearsay. 

Using websites, catalogs, or contacts with non-witnesses to price the

value of an item constitutes reliance on hearsay. Phillips v. State, 141 So. 

3d 702, 704 (Fla. 4th DCA 2014). “Hearsay evidence may not be used to 

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

the defense to the hearsay evidence.” Id. (quoting Conway v. State, 115 

So. 3d 1058, 1059 (4th DCA 2013)). Here, defense counsel made several 

hearsay objections to the State’s evidence regarding the necklace’s value. 

The State presented no testimony as to the condition, depreciation, or 

the manner of use. Importantly, the State did not provide the weight of 

the necklace (which may have been estimated from a competent 

description of the necklace), nor did it seek to establish the price of gold at 

the time of the theft. 

Our recent decision in Toole recognized that “proving restitution 

continues to be difficult for victims, and receiving compensation for their 

loss continues to be elusive.” 44 Fla. L. Weekly D512. The Toole opinion 
4

acknowledges the recent amendment of the Florida Constitution to 

incorporate “Marsy’s Law,” and the opinion certifies, as a question of great 

public importance, whether the Hawthorne “formula for determining 

restitution based on the fair market value of the victim’s property [is] still 

viable after the passage of Amendment 6 (Marsy’s Law) . . . .” Id. at D513

(citing Art. I, § 16, Fla. Const. (2018)).

In the meantime, we note Amendment 6 includes a requirement that 

victims are to be “provided with assistance collecting restitution.” Id. at 

D512 (citing Art. I, § 16). Here, the State did not satisfactorily provide this 

assistance. In fact, there is no evidence that the State attempted to retrieve 

a photo of the stolen necklace from local law enforcement. The photo may 

have assisted the victim in establishing the condition and the thickness 

and/or weight of the stolen necklace. Nor did the State provide support 

for the victim’s effort to establish the replacement cost as more than a 

mere “guesstimate.” See id. (holding that the lack of testimony about 

manner of use, general condition, quality and depreciation, as well as the 

“guesstimates” of replacement cost was insufficient to establish fair 

market value.).

Conclusion

We recognize that imposing evidentiary hurdles to the establishment of 

the value of a stolen item somewhat serves to put the victim on trial. 

Nonetheless, as set forth above, the evidence presented of the necklace’s 

fair market value was negligible. We thus reverse and remand to the trial 

court for a new restitution hearing. See, e.g., McInerney v. State, 213 So. 

3d 933, 936 (Fla. 4th DCA 2017) (reversing and remanding for a new 

hearing on the amount of restitution); David v. State, 187 So. 3d 947, 947

(Fla. 4th DCA 2016) (same).

Affirmed in part, reversed in part, and remanded for a new restitution 

hearing.

GROSS and CONNER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.