JASON GLISZCZYNSKI, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jason Gliszczynski appealed his conviction for attempted criminal mischief, challenging the restitution amount ordered by the trial court. The appellate court affirmed, holding that Gliszczynski's argument regarding the restitution cap was not properly preserved for appeal because it was not presented to the trial court on the same legal grounds.
The court affirmed the restitution amount, holding that Gliszczynski's argument that restitution could not exceed $1,000 was not cognizable on appeal because it was not asserted in the trial court on that specific legal ground. The restitution amount was supported by trial testimony and evidence and was not egregious or illegal.
[1] An appellate court will not consider an issue unless it was presented to the lower court, except in cases of fundamental error.
[2] For an argument to be cognizable on appeal, it must be the specific contention asserted as the legal ground for the objection, exception, or motion below.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Gliszczynski may not raise an argument for the first time on appeal unless it involves fundamental error.”
Establishes the fundamental preservation requirement and exception for raising new arguments on appeal.
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Join FLexlaw to unlock all legal intelligenceGliszczynski was charged with criminal mischief for willfully and maliciously causing property damage in excess of $1,000. The jury found him guilty o…
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THOMPSON, Judge.
James Gliszczynski appeals his conviction and sentence for the offense of attempted criminal mischief.1 He was adjudicated guilty and sentenced to six months supervised probation. Special conditions of probation were that he serve 55 days in the Osceola County Jail and pay restitution in the amount of $2,343.54. The only salient issue on appeal is the validity of the amount of restitution. We affirm.
Gliszczynski argues on appeal that the amount of restitution ordered by the trial court could not exceed $1,000. Although he was charged with criminal mischief for willfully and maliciously causing property damages in excess of $1,000,2 the jury found him guilty of attempted criminal mischief and found the value of damage to the property was greater than $200 but less than $1,000. Thus, Gliszczynski argues, the jury’s verdict necessarily limited the amount of restitution the court could assess to $1,000.
Gliszczynski did not object to the amount of restitution on this basis in the trial court, or argue to the trial court that it could not impose restitution above the amount contained in the jury verdict. Before the trial court, Gliszczynski argued that the amount of restitution should be based upon the fail' market value of the property he was accused of damaging rather than the replacement cost, and that the state had not introduced any evidence on the fair market value of the damaged property. In short, the argument presented before this court is different than the argument presented in the trial court. Thus, the argument raised on appeal is not cognizable because it was not asserted in the trial court.
Gliszczynski may not raise an argument for the first time on appeal unless it involves fundamental error. See, e.g., Steinhorst v. State, 412 So. 2d 332, 338 (Fla.1982) (appellate court will not consider issue unless it was presented to the lower court except in case of fundamental error, and in order for argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below); accord Tillman v. State, 471 So. 2d 32, 34-35 (Fla.1985); Thomas v. State, 424 So. 2d 193, 194 (Fla. 5th DCA 1983). This case does not involve fundamental error. Further, the testimony and evidence presented at trial provided a factual basis for the amount of restitution the court ordered. The amount was not egregious and was appropriate as a condition of probation. See Bayer v. State, 597 So. 2d 870 (Fla. 5th DCA 1992) (where amount of restitution was not illegal or so egregious as to constitute fundamental error, defendant waived right to appeal issue of whether trial court erred in ordering restitution for value of items stolen from victim’s house, on the basis that he was only convicted of stealing the victim’s automobile, by failing to raise contemporaneous objection); see also § 775.089, Fla.Stat. (1991) (“the court shall order the defendant to make restitution to the victim for ... [djamage or loss caused directly or indirectly by the defendant’s offense ... ”) Therefore, we affirm Gliszczynski’s conviction and sentence.
AFFIRMED.
DAUKSCH and PETERSON, JJ., concur. . § 806.13, Fla.Stat. (1991).
. § 806.13(1), Fla.Stat. (1991).
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J.S. v. State, 717 So. 2d 175 (Fla. 4th DCA 1998)…failed to object to this restitution issue at the hearing, appellant failed to preserve this issue for appellate review. See D.B. v. State, 689 So. 2d 420 (Fla. 4th DCA 1997); Owens v. State, 679 So. 2d 44 (Fla. 1st DCA 1996); Gliszczynski v. State, 654 So. 2d 579 (Fla. 5th DCA 1995); M.A.V. v. State, 643 So. 2d 81 (Fla. 2d DCA 1994); Moore v. State, 623 So. 2d 842 (Fla. 5th DCA 1993); Bayer v. State, 597 So. 2d 870 (Fla. 5th DCA 1992). This finding that there has been no preservation of a portion of the res…
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I.M. a child v. State, 917 So. 2d 927 (Fla. 1st DCA 2005)…to pay the amount of restitution ordered. Because Appellant did not object to the amount of restitution on this ground, this argument ordinarily would not be preserved for appellate review. See Spivey, 531 So. 2d at 967 n. 2; Gliszczynski v. State, 654 So. 2d 579 (Fla. 5th DCA 1995). This case does not involve fundamental error. See Spivey, 531 So. 2d at 967 n. 2. However, because further proceedings will be permitted in the trial court on remand regarding the restitution issue, we conclude that inquiry shou…
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Woodbury v. State, 730 So. 2d 354 (Fla. 5th DCA 1999)…which GRIFFIN, C.J., concurs. . It is well recognized that the trial court’s ruling on a motion to suppress comes to us clothed with the presumption of correctness. Medina v. State, 466 So. 2d 1046 (Fla. 1985). . See, e.g., Gliszczynski v. State, 654 So. 2d 579 (Fla. 5th DCA 1995).…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Steinhorst v. State, 412 So. 2d 332 (Fla. 1982)
- Tillman v. State, 471 So. 2d 32 (Fla. 1985)
- Estep v. State, 597 So. 2d 870 (Fla. 2d DCA 1992)
- Winzer Leon Thomas v. State, 424 So. 2d 193 (Fla. 5th DCA 1983)