Conway v. State
115 So. 3d 1058
Fla. Dist. Ct. App.2013Background
- Defendant pled guilty to dealing in stolen property and giving false verification of ownership.
- A restitution order totaling $17,812 was entered, based on replacement value provided at restitution hearing.
- Victim testified she bought the stolen set in 1948; the set was later melted by a pawnshop that had purchased it from the defendant for $500.
- The victim’s son obtained a replacement-value estimate from International Sterling Silver Company, identifying the set as a collector’s item.
- Defense objected to hearsay and to using replacement value rather than fair market value; the court overruled the objection and ordered restitution.
- On review, the court held the restitution amount was improperly based on hearsay replacement value and not on fair market value, and remanded for a new restitution hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether hearsay evidence supported restitution amount | State relied on replacement value via hearsay statements | Defense objected to hearsay; replacement value insufficient | Yes; hearsay improperly supported the amount |
| Whether replacement value was appropriate over fair market value | Replacement value justified by evidence of loss | Fair market value should be used absent special circumstances | Replacement value not justified; court must use fair market value absent special circumstances |
| Remedy for improper restitution calculation | N/A | N/A | Remanded for new restitution hearing; may use written estimates meeting business-record requirements |
Key Cases Cited
- Bennett v. State, 944 So.2d 524 (Fla. 4th DCA 2006) (burden of proving restitution by preponderance; substantial competent evidence required)
- T.J.N. v. State, 977 So.2d 770 (Fla. 2d DCA 2008) (hearsay not admissible to determine restitution amount when properly objected)
- Thompson v. State, 68 So.3d 425 (Fla. 4th DCA 2011) (fair market value preferred absent circumstances showing replacement value adequate)
- Domaceti v. State, 616 So.2d 1149 (Fla. 4th DCA 1993) (court should use fair market value absent countervailing reasons)
- I.M. v. State, 958 So.2d 1014 (Fla. 1st DCA 2007) (remand permissible with admissible written estimates or uncontested evidence)