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Fewox v. State

The order requiring the defendants to pay restitution to their victims was improperly based on the replacement value of the stolen property, instead of the property's fair market value.

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After pleading guilty to burglary, Renee Fewox and Cherie Stegall appeal the trial court’s order requiring them to pay $3,405 in restitution to the victims of their crime, Sean and Charlotte Tomlinson. The appellants contend that the trial court inappropriately based its determination on the replacement cost of the items stolen rather than fair market value. For the reasons discussed below, we agree and remand the case for further consideration.

Under OCGA § 17-14-9, “the amount of restitution ordered may be equal to or less than, but not more than, the victim’s damages,” which are further defined in OCGA § 17-14-2 2 as “all damages which a victim could recover against an offender in a civil action . . . based on the same act or acts for which the offender is sentenced. . . .” “Thus, the sufficiency of evidence to support an order of restitution should be measured by the civil standard of preponderance of the evidence.” Lawrenz v. State, 194 Ga. App. 724, 725 391 SE2d 703 1990.

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