County Criminal Court: CRIMINAL PROCEDURE – Restitution – Mere speculation or opinion as to the amount of a loss is insufficient to sustain a restitution order-Judgment affirmed. State v. Ploof, No. CRC08-3960CFAES,  (Fla. 6th Cir.App.Ct. April 22, 2009).

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

 

IN THE CIRCUIT COURT SIXTH JUDICIAL CIRCUIT

IN AND FOR PASCO COUNTY, FLORIDA

 

STATE OF FLORDA

            Appellant,

 

Vs                                                                                Appellate Case No.:     08-3960CFAES

                                                                                    UCN:  512008CF003960A000ES

                                                                                    Lower Court Case No.: 08-1617MMAES

 

NATHAN LAWRENCE PLOOF

            Appellee.

________________________/

 

(D. DISKEY, J.)

ORDER AND OPINION

            This matter is before the Court on State of Florida/Appellant’s appeal of the trial court’s Order of Restitution setting restitution at zero dollars. 

 

FACTUAL AND PROCEDURAL HISTORY

            On or about January 28, 2008, the defendant herein was arrested for grand theft.  On March 5, 2008, the State of Florida charged the defendant with petit theft by Information specifically alleging the theft of “personal property, of the value of $100.00 or more but less than $300.00…”.  On March 31, 2008, the Court entered an Order appointing the Public Defender to represent the defendant herein.  On April 17, 2008, the defendant entered a nolo contendre plea to the charge of petit theft and formal adjudication of guilt was withheld and the defendant was placed on one year of probation, ordered to pay court costs of $190.00 and ordered to pay restitution.  The exact amount of restitution was not specifically stated in the Judgment and Sentence.  A restitution hearing was held on June 10, 2008, and the trial court entered its written Order June 10, 2008.  The trial court’s written Order finds as follows:

            1.  On April 17, 2008, the above defendant pled no contest to stealing “personal property” of a value of $100.00 or more but less than $300.00.

            2.  On June 10, 2008, the owner of the property testified:

            a.  He does not know how many pounds of steel were stolen.

            b.  He does not know how much money he paid for the stolen property, nor could he testify to a replacement value.

            3.  The defendant was arrested for grand theft, the offense of petit theft was filed.

            4.  Deputy A. Gardner, who arrested the defendant, was not present.

            5.  There was no attempt to produce proof as to how much steel the defendant sold to a scrap dealer or what he was paid for it.  No competent evidence was presented by the State and restitution is denied.

            The State of Florida, now Appellant, now asserts that the trial court’s Order denying restitution should be reversed because restitution was proven by “a preponderance of the evidence” and that the trial court failed to state clear and compelling reasons for not ordering restitution. 

            A review of the transcript of the restitution hearing indicates that the State of Florida called to testify two separate witnesses at the restitution hearing.  The first witness was one Michael Miller who testified that he is the owner and general manager of a steel fabrication and erection facility named Seminole Machine and Welding.  Mr. Miller testified that unused sections of steel have been shipped to Zephyrhills, Pasco County, Florida, for storage on ten acres of property.  See transcript page 10, lines 12 – 22.  Mr. Miller testified that the steel was stored in “numerous piles”.  See transcript page 13, lines 7.  Mr. Miller testified that a “couple piles” of steel is gone.  See transcript page 15, lines 15 – 17.  During cross-examination, Mr. Miller acknowledged that he did not know how many pounds were stolen.  See transcript page 17, lines 10 – 12.  Further, Mr. Miller stated that he did not have an “exact inventory” of what was “out there”.  See transcript, page 18, lines 8 – 9. 

The State of Florida/Appellant also called one James Rathel, who testified that he was “pretty much put in charge” to watch a piece of property owned by Dean Miller in Zephyrhills.  See transcript page 19, lines 15 – 21.  Mr. Rathel testified that the property was a “vacant lot that was pretty much growed up… and we have problems with people coming in and trying to steal and trailer and stuff…”.  See transcript page 19, line 25 through page 20, line 3.  Mr. Rathel testified that he heard noises coming from the property and that on the next day, he checked and could see “vacant spots in the grass”.  See transcript page 21, lines 1 – 8.  Mr. Rathel testified that a spot approximately 15 feet wide and 10 feet long consisted of smaller rebar and “stuff like that”…”smaller eye beams and things like that” “smaller stuff”.  See transcript page 21, lines 23 through page 22, line 1.  Mr. Rathel further testified that there was a second pile of items missing which consisted of “large square tubing and larger poles”.  See transcript page 23, lines 21 – 25.  Mr. Rathel further testified that he “tried to accumulate and put into a pile about the size, I went and, what I did is, I took a 20 foot goose-neck trailer that was the equivalent to its, I believe,  8 foot wide, and what we did is we tried to stack the amount of steel on the goose-neck to see about how much weight wise that was”.  See transcript page 26, lines 1 – 6.  Mr. Rathel testified that the steel that he put on the trailer and scrapped from the trailer weighed 11,000 pounds.  See transcript page 31, lines 22 – 23.  Mr. Rathel further testified that he scrapped two more trailer loads with the second trailer load weighing 14,100 pounds and the third trailer load weighing 14,120 pounds.  See transcript page 32, lines 12 – 22. 

The assistant state attorney specifically asked Mr. Rathel if he had “an estimate of what was stolen steel…how much it weighed”.  See transcript page 33, lines 1 – 3.  After objection, Mr. Rathel testified as follows at page 33, line 7 – 11: “As an estimate wise of what was stolen, you know, it’s pretty much hard to say an exact weight.  It is.  Because whenever you get into a different gauge of steel, different thicknesses, and stuff like that, you’re going to have a different weight between different pieces”.   In cross-examination, Mr. Rathel acknowledged that his assessment of the weight of the steel was an estimate.  Mr. Rathel stated at page 35, line 22 through page 37, line 4, as follows: “Pretty much that’s what we were trying to do is estimate about the size and stuff.  But I like I said, you know, between the size and stuff that I was actually loading and the size of the stuff that I was actually taking this to, you know, is going to vary, it’s going to vary.   It’s going to fluctuate no matter which way you, you know.  Because, you know, every pile was – consisted of heavy, thick, thin all the way through.”  The questioning of Mr. Rathel by defense attorney continued, as follows on page 37, line 5:   

    Question: Okay.  So you have no idea how many beams were actually stolen?

Answer:  No.

At page 37, line 17:

Question:  Okay.  So you have no idea of what an accurate inventory of that steel was?

Answer:  No.

Question:  Okay.  You have no idea of what it weighed?

Answer:  Off the top of my head, no, because you’re figuring, you know, off of what I’ve taken in compared to what was there.  You’re looking at a lot larger amount that was there that somebody had taken compared to what I could pull in.

Question:  But you have no – you have no idea how much it weighed?

Answer:  No. 

            The Court itself engaged in the following questioning of Mr. Rathel, beginning transcript page 27, line 16:

            The Court:  Do you know who stole this steel?

            The witness:  Do I know the person who did it?

            The Court: Yeah.

            The witness:  Actually no, I don’t know the person who did it. 

            The Court:  Well, I mean, do you know who stole it, you didn’t see anybody steal it, I surmise.  But what happened is, you went out and the steel, these various piles, were gone?

            The witness: Yes

            The Court: Okay.  How much – more than one pile?

            The witness:  Yes.

            The Court:  Okay.  Do you know if all the thefts took place at one time:

            The witness:  At one time, no.  Because, you know, it’s not as in, you know, over a period of time –“

            The Court in its written Order of June 10, 2008, specifically found that the State of Florida/Appellant had failed to establish how many pounds of steel were stolen.  The State of Florida/Appellant’s own witnesses acknowledged that there could be only be an “estimate” of the amount of steel stolen and that the estimate was subject to the variables of size and gauge of steel.  Further, the State of Florida/Appellant’s witnesses acknowledge that not all of the steel may have been removed by the defendant herein. 

After hearing the testimony herein the trial court inquired of the assistant state attorney, transcript page 29, line 17: “Have you ever heard of the term ‘wild-ass guess’?  That’s what you’re asking me to do, in this particular case.” 

Mere speculation or opinion as to the amount of a loss is insufficient to sustain a restitution order.  See Glaubius v State, 688 So2d 913 (Florida 1997).  In Fisher v State, 722 So2d 873 (Florida 1st DCA 1998), at a restitution hearing, the victim testified that she lost “some jewelry”.  She testified she had three containers of jewelry that were taken but could not describe many of the pieces that were lost.  Although she claims the total value was $2,714.00, she was only able to describe four pieces of jewelry which were valued at a total of $510.00.  The First DCA held that when the amount of restitution is disputed, the State of Florida has the burden of proof at a restitution hearing and that the State must produce some specific evidence or testimony as to the nature and value of the pieces claimed to have been taken. 

In the case at bar, the testimony of the State of Florida/Appellant’s witnesses are at best an estimate as to weight of items taken and as to weight of items removed and as to whether or not the defendant in the case at bar removed all of the items.  A defendant cannot be ordered to pay restitution for an amount exceeding the actual damages suffered by the victim as a result of the charged criminal activity.  See Fresneda v State 347 So2d 1021 (Florida 1977).  A trial court’s restitution order is reviewed under an abuse of discretion standard.  See Bellott v State 964 So2d 857 (Fl 2nd DCA 2007).  This Court finds no abuse of discretion by the trial court herein.  Accordingly, it is

ORDERED AND ADJUDGED that the court’s order of June 10, 2008, denying restitution is affirmed. 

            DONE AND ORDERED in Chambers, New Port Richey, Pasco County, Florida, on the _____ day of April, 2009.

 

                                                            ____________________________________

                                                            Stanley R. Mills

                                                            Primary Appellate Judge

 

                                                            _________________________________

                                                            W. Lowell Bray, Jr.

                                                            Circuit Court Judge

 

                                                            _____________________________________

                                                            Daniel D. Diskey

                                                            Circuit Court Judge

 

 

 

 

Cc:  Kent Compton, ASA                     

       Bernie McCabe, State Attorney

       Bob Dillinger, Public Defender