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Tullis v. State

District Court of Appeal of Florida, First District
Apr 14, 1997
692 So. 2d 229 (Fla. Dist. Ct. App. 1997)

Summary

finding testimony insufficient where “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”

Summary of this case from D.D. v. State

Opinion

Case No. 96-1412

Opinion filed April 14, 1997.

An appeal from the Circuit Court for Duval County, Henry Davis, Judge.

Nancy A. Daniels, Public Defender; Phil Patterson, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General; Trisha E. Meggs, Assistant Attorney General, Tallahassee, for Appellee.


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, 22 Fla. L. Weekly 83 (Fla. Feb. 20, 1997)(stating 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 scoresheet 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.


Summaries of

Tullis v. State

District Court of Appeal of Florida, First District
Apr 14, 1997
692 So. 2d 229 (Fla. Dist. Ct. App. 1997)

finding testimony insufficient where “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”

Summary of this case from D.D. v. State

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

Summary of this case from D. E. M. v. State

striking a restitution order based on the victim's offer of a "guesstimate" as to the cost of repairs

Summary of this case from Hunter v. State
Case details for

Tullis v. State

Case Details

Full title:FRANK TULLIS, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, First District

Date published: Apr 14, 1997

Citations

692 So. 2d 229 (Fla. Dist. Ct. App. 1997)

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D. E. M. v. State

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Hunter v. State

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