FRANK TULLIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that restitution orders require competent evidence of loss, and aggravated assault with a firearm cannot be reclassified as a second-degree felony based on use of a firearm.
Appellant was convicted of aggravated assault with a firearm. The victim provided a speculative estimate for damages, and the judgment incorrectly rec…
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PER CURIAM.
Tullis raises three issues in this direct appeal from his conviction and sentence for aggravated assault. We affirm on issue one without discussion.
Appellant claims in his second issue that the restitution order must be vacated. We agree and reverse. Glaubius v. State, 688 So. 2d 913 (Fla.1997)(staüng that state’s evidence for demonstrating amount of loss sustained by victim “must be established through more than mere speculation; it must be based on competent evidence”). At the hearing, the victim offered a “guesstimate” of the cost of repairs to the wall and office door damaged by the bullet appellant fired, but he admitted that there was no basis for this estimate. Accordingly, the order of restitution is stricken. On remand, the trial court should conduct a new evidentiary hearing on restitution.
We also remand on appellant’s third issue. The offense of aggravated assault with a firearm cannot be reclassified to a second degree felony because use of a firearm is an essential element of the offense. Harrelson v. State, 624 So. 2d 828 (Fla. 1st DCA 1993); Ellison v. State, 538 So. 2d 90 (Fla. 1st DCA 1989); Stinson v. State, 520 So. 2d 680 (Fla. 1st DCA 1988). Although appellant’s guidelines seoresheet shows that aggravated assault was calculated correctly as a third degree felony, the judgment reflects conviction of aggravated assault as a second degree felony, enhanced by section 775.087, Florida Statutes. As the state concedes, the judgment must be corrected.
Accordingly, appellant’s judgment and sentence are affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
MINER, ALLEN and PADOVANO, JJ., concur.
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Hunter v. State, 48 So. 3d 174 (Fla. 4th DCA 2010)…DCA 1998). The trial court erred in awarding $12,500 in restitution for the following reasons. First, the victim testified that she paid $1000 for repairs to her home, but did not indicate what repairs were actually performed. See Tullis v. State, 692 So. 2d 229, 229 (Fla. 1st DCA 1997) (striking a restitution order based on the victim’s offer of a “guesstimate” as to the cost of repairs). Second, the court did not specify the value it was assigning to the laptop, piece of luggage, or handgun. In State v.…
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Fisher v. State, 722 So. 2d 873 (Fla. 1st DCA 1998)…t for which there was competent substantial evidence, see Moore v. State, 664 So. 2d 343 (Fla. 5th DCA 1995), we opt instead to reverse and remand so that a new restitution hearing regarding the value of the jewelry can be held. See Tullis v. State, 692 So. 2d 229 (Fla. 1st DCA 1997); Smith v. State, 651 So. 2d 1218, 1219 (Fla. 2d DCA 1995); C.S. v. State, 617 So. 2d 863 (Fla. 1st DCA 1993). Reversed and remanded for further proceedings consistent with this opinion. MINER, WEBSTER, JJ„ and SMITH, LARRY G.…
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D.E.M. v. State, 109 So. 3d 1229 (Fla. 1st DCA 2013)…estitution purposes. See Soriano v. State, 968 So. 2d 112, 115 (Fla. 4th DCA 2007); Bennett v. State, 944 So. 2d at 526 (“Guesstimates and speculative testimony are inappropriate evidence on which to base an award of restitution.”); Tullís v. State, 692 So. 2d 229, 229 (Fla. 1st DCA 1997) (concluding that the victim’s “guesstimate” of the cost of repairs to a wall and office door, without any stated basis for the estimate, was legally insufficient to support the restitution amount); Peters v. State, 555 So. 2…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Glaubius v. State, 688 So. 2d 913 (Fla. 1997)
- Ellison v. State, 538 So. 2d 90 (Fla. 1st DCA 1989)
- Riley v. Parker, 624 So. 2d 828 (Fla. 1st DCA 1993)
- Harrelson v. State, 624 So. 2d 828 (Fla. 1st DCA 1993)
- Stinson v. State, 520 So. 2d 680 (Fla. 1st DCA 1988)