MEJIAS VIALIZ

v.

STATE OF FLORIDA

Appellant challenges her conviction of one count of failure to return leased personal property valued at $300 or more and the amount of restitution imposed.

We affirm her conviction, but reverse her restitution order.

The trial court properly denied the motion to dismiss because the contract language was adequate under the governing statute but erred in setting restitution based on the completed-contract amount. Appellant leased several items from Buddy’s Home Furnishing and signed the corresponding contracts. The agreements stated in pertinent part: Failure to return rental property or equipment upon expiration of the rental period and failure to pay all amounts due (including costs for damage to the property or equipment) after written demand is made are evidence of abandonment or refusal to redeliver the property, punishable in accordance with § 812.155, Fla. Stat. When Appellant failed to return the items and failed to pay, she was charged with failure to redeliver leased personal property valued at $300 or more, a violation of section 812.155(3), Florida Statutes. Appellant moved to dismiss the charge, arguing that the language in the property rental agreement impermissibly deviated from the language in section 812.155(6), Florida Statutes.

Section 812.155(6) specifies that as a prerequisite to prosecution under this section, the following statement must be contained in the agreement: Failure to return rental property or equipment upon expiration of the rental period and failure to pay all amounts due (including costs for damage to the property or equipment) are evidence of abandonment or refusal to redeliver the property, punishable in accordance with section 812.155, Florida Statutes.

The trial court properly denied the motion to dismiss because adding the words “after written demand,” which are favorable to the renter, did not negate the statutory warning language, which was quoted verbatim. Cf. Ellsworth v. State, 89 So. 3d 1076, 1077 (Fla. 2d DCA 2012) (reversing because agreement at issue incorrectly stated that the failure to return the property is “prima facie evidence of intent to defraud”).

At trial, an assistant manager with Buddy’s Home Furnishing testified that Buddy’s rents out furniture, appliances, and electronics to its customers, often on a lease-to-own basis. The contract requires a fixed amount paid weekly for a designated number of weeks. After the specified period, the renter owns the product.

However, the renter can return the product at any time before the designated amount of time and cease payment. The assistant manager testified that Appellant executed four lease-to-own contracts with Buddy’s for electronic items, but ceased making payments.

Appellant was convicted as charged and did not return any of the items to the store. In total, the remaining balance on all the contracts, subtracting Appellant’s payments, was $9,178.41.

Appellant argued that the contract prices did not reflect the fair market value of the items.

The trial court found that the $9,178.41 restitution amount would reflect the contractual agreed-upon amount, stating, “I think she owes the remaining money pursuant to that contract . . . .” The trial court ordered restitution of $9,178.41, and sentenced Appellant to five years of probation, with the condition that she pay this restitution at a rate of $175 on a monthly basis. “A restitution order is reviewed for abuse of discretion.” Tolbert v. State, 268 So. 3d 947, 949 (Fla. 1st DCA 2019). “While the primary purpose of restitution is to compensate the victim, it also serves the rehabilitative and deterrent goals of the criminal justice system.” § 775.089(7)(a), Fla. Stat.

Section 775.089 further provides that: Restitution must be determined on a fair market value basis unless the State, victim, or defendant shows that using another basis, including, but not limited to, replacement cost, purchase price less depreciation, or actual cost of repair, is equitable and better furthers the purposes of restitution. § 775.089(7)(b), Fla. Stat. 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.” State v. Hawthorne, 573 So. 2d 330, 332 (Fla. 1991).

The trial court did not base restitution on the fair market value. This Court has explained that: It is true that “a court is not tied to fair market value as the sole standard for determining restitution amounts.” Hawthorne, 573 So. 2d at 333. Deviations from fair market value, however, have been recognized in limited circumstances, such as the “theft of a family heirloom, a new automobile, or an older car that had been repaired shortly before the theft.” Davis v. State, 244 So. 3d 374, 377 (Fla. 4th DCA 2018). The common thread of these exceptions is that the value of the stolen property itself consists of more than just its fair market value. Tolbert v. State, 268 So. 3d 947, 949 (Fla. 1st DCA 2019) (emphasis added).

Additionally: While intended to make the victim whole, “restitution is not intended to provide a victim with a windfall.” Rodriguez v. State, 956 So. 2d 1226, 1232 (Fla. 4th DCA 2007) (citing Glaubius v. State, 688 So. 2d 913, 916 (Fla. 1997)).

Therefore, restitution may not exceed the damage caused by the defendant’s criminal conduct.

D. J. R., 139 So. 3d at 459. Id. Under the circumstances here, the completed contract price provided Buddy’s a windfall. Buddy’s admitted that anyone can return items early without having to buy out the contract. They thus abandoned any right they had to seek “benefit of the bargain” damages. As to lost rental income, there was no evidence presented that if returned the items could have been rented to anyone else, and if so, how quickly such a rental would occur. Absent a showing that another basis is equitable and better furthers the purpose of restitution, the trial court was limited to the fair market value of the items. On remand, the trial court must determine restitution in accordance with section 775.089(7)(b), Florida Statutes. AFFIRMED in part, REVERSED in part, and REMANDED. KELSEY and NORDBY, JJ., concur. _____________________________