Have you shopped on Ebay lately? Why is it that one seller has something listed for $100, and that same product is listed for $300 by a few other sellers? What idiot is going to buy the same thing for more than twice the price? For valuation purposes, which price constitutes the actual “value” of the item, $100 or $300? Is it wrong to even use websites like Ebay to make a determination as to what something is worth?
As a general rule, victims in criminal cases are only entitled to be paid back “fair market value” of the items stolen or damaged. Sometimes, fair market value does not adequately reflect the measure of loss, and courts may deviate from this rule when necessary. In criminal cases like grand theft or petit theft, the fair market value must be used to determine the severity of the crime. Steal something worth more than $100,000, and that’s a first degree felony grand theft which will score mandatory prison. Steal an item worth $90,000, and that’s only a second degree grand theft with no mandatory prison time. [for more details on how valuation effects theft charges, check out my article “Grand Theft vs. Petit Theft“] So, how does a court determine fair market value?
I know what you’re thinking–isn’t the current price of an item its fair market value? No, because the current price of an item doesn’t tell us what the stolen item was worth, it only tells us what a newer version of that item would be worth. Ever been to Neiman Marcus? They have some great mens ties, many priced in the $275-$500 range (yes, for a tie). Is the $375.00 price tag on a mens tie the final say as to its “fair market value?” To see how this works, let’s take a look at the recent case of T.D.C. v. State, 117 So.3d 809 (Fla. 4th DCA 2013).
T.D.C. was convicted of grand theft and burglary (for all you non-lawyers out there, we’re using T.D.C.’s initials because he’s a juvenile). The prosecutor and defense attorney could not agree on the value of the stolen netbook, so a restitution hearing is held in order to present evidence so that the court may impose an accurate pay back amount. A Samsung netbook is at issue here, it was bought new for $265. At the hearing, the victim testified that the netbook was 10 months old when it was stolen, in great condition, but used several times a week. The victim could not find the same netbook used on Ebay, so the judge simply imposed a restitution amount of $265, reasoning that “because the netbook was in new condition, the replacement cost would be the same as the original purchase price” Id. Now, does that sound like a proper analysis to you? Have we thrown out a fair market value analysis, and replaced it with a “like new condition” analysis, or did the lower court simply make up some new rules here?
The appeals court overturned the judge’s restitution order, finding that no evidence was presented as to the fair market value of the netbook. The appeals court noted that the lower court failed to deduce “any evidence of fair market value at the time of the theft, and it did not consider fair market value . . . Although there may have been circumstances supporting use of a measure of value other than fair market value, no such circumstances were presented by the State. Accordingly, we find the trial court abused its discretion with respect to the issue of restitution for the netbook, and we reverse and remand for a hearing on this sole issue.” Id.