The “Lottery” of Restitution: Fighting Internet Hearsay

By: John Guidry

Some people are indeed clueless when it comes to value. We all know that friend who thinks their home is worth double the market rate, or the victim who insists the jacket stolen off their back was a priceless artifact gifted by Kurt Cobain.

As criminal defense attorneys, we see this “lottery mentality” daily. A theft occurs, and suddenly the victim treats the restitution hearing like a payout window. It is up to us to inject sanity into the process and ensure the State actually proves the value of the items, rather than just Googling numbers.

Facing a prosecutor armed with eBay printouts and a victim’s “guestimate”?

You need to preserve the record. Call John today at (407) 423-1117.

The Legal Breakdown: Phillips v. State

The case of Phillips v. State, 141 So. 3d 702 (Fla. 4th DCA 2014), is a critical tool for challenging restitution amounts based on “internet research.”

• The Scenario: Jewelry was stolen. To prove value, the victim testified that she looked at six different websites and averaged the prices to find the market value.
• The Objection: The defense attorney properly objected to this testimony as hearsay. A website is an out-of-court statement offered to prove the truth of the matter asserted (the price).
• The Ruling: The appellate court agreed. Citing Gonzalez v. State (which held catalog prices are insufficient), the court ruled that a victim cannot simply parrot values found online.

The Court’s “Regret”: Interestingly, the Phillips court followed the law but didn’t like it. They noted it was “practically impossible” for the victim to prove value without hearsay, suggesting the legislature should change the statute to allow hearsay in restitution hearings. (Let’s hope Tallahassee ignores that suggestion, or our job will get much harder).

The Warning: Schenk v. State

While Phillips is a win for the defense, Schenk v. State, 150 So. 3d 275 (Fla. 5th DCA 2014), serves as a harsh warning about the importance of objections.

• The Facts: Similar to Phillips, the victim in Schenk testified to the value of stolen jewelry based on internet prices.
• The Mistake: The defense attorney did not object to the hearsay testimony.
• The Outcome: The appellate court upheld the restitution order. They distinguished it from Phillips solely because the error wasn’t preserved. Without an objection, the hearsay evidence was admitted and sufficient to support the judge’s ruling.

John’s Takeaways

Restitution hearings are often treated as informal afterthoughts by the State, but they can saddle your client with a civil judgment that lasts a lifetime. Here is how to handle them in Orange and Seminole County:

• Object, Object, Object: If a victim starts talking about what they saw on a website, a catalog, or what a pawn shop guy told them, you must object to hearsay immediately. Schenk proves that silence is fatal.
• Demand Competent Evidence: The State has the burden of proof. “I looked it up on Amazon” is not competent evidence of fair market value for a used item. We need to demand receipts, expert testimony, or testimony based on personal knowledge of the item’s condition and purchase price.
• The “Sentiment” Trap: Victims often conflate “sentimental value” with “fair market value.” We have to remind the court that restitution is for the cash value of the loss, not the emotional attachment.
• Watch for Legislative Changes: The Phillips court invited the legislature to change the rules to allow hearsay. Until they do, we need to hammer the hearsay objection every single time.

Don’t Let Them Google the Price

If the State is trying to use “internet research” to inflate the restitution amount in your case, we need to challenge it.

Call me at (407) 423-1117. Let’s make them prove every penny.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.