DANIEL ORNER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the revocation of probation and conviction but set aside the cost assessment due to the appellant's insolvency, and noted that the fifteen-year sentence for third-degree burglary may be excessive and subject to reduction.
The revocation of probation was proper, the cost assessment must be set aside because the appellant was adjudged insolvent, and the sentence may be excessive for a third-degree burglary.
[1] Costs cannot be assessed against a defendant previously adjudged insolvent.
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Join FLexlaw to unlock all legal intelligenceAppellant Orner was convicted of burglary of a building owned by Shop & Go, Inc., after pleading guilty. He had previously been adjudged insolvent.…
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OTT, Judge.
We find no error in the revocation of appellant’s probation.
Since the appellant had previously been adjudged insolvent the trial court erred in assessing costs against appellant. § 939.15, Fla.Stat. (1977); Cox v. State, 334 So. 2d 568 (Fla.1976). The assessment of costs is therefore set aside.
The appellant does not raise any question here or in the trial court as to the validity of the sentence for fifteen years imprisonment. We note, however, that the sentence may be excessive. The charge against him, to which he pled guilty, was burglary of a building owned by Shop & Go, Inc. There is no allegation in the information that this building was a dwelling, that there was a human being in it at the time of the burglary, that appellant made an assault upon any person, or that he was armed or armed himself within the structure. Absent one or more of these elements, burglary is a third degree felony, § 810.02, Fla.Stat. (1975), for which the maximum sentence is five years. § 775.082(3)(d), Fla.Stat. (1975). Unless the information can be deemed amended by the factual basis established at appellant’s plea hearing (a transcript of which was not included in the record on appeal), appellant’s sentence should be reduced to five years. See Shanklin v. State, 369 So. 2d 620, (Fla. 2d DCA 1979). Since appellant may raise this point, if valid, by an appropriate Fla.R.Crim.P. 3.850 motion and the trial court may correct an illegal sentence at any time, we do not herewith express any opinion thereon. The judgment of conviction and sentence are therefore affirmed.
HOBSON, Acting C. J., and BOARD-MAN, J., concur.
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Fla. Farm Bureau Cas. Ins. Co. v. Calvert, 381 So. 2d 1160 (Fla. 3d DCA 1980)…PER CURIAM. Affirmed. Sections 627.428 and 627.727, Fla.Stat. (1975); State Farm Mutual Automobile Ins. Co. v. Jenkins, 370 So. 2d 1201 (Fla. 1st DCA 1979); State Farm Mutual Automobile Ins. Co. v. Anderson, 332 So. 2d 623 (Fla. 4th DCA 1976); Moore v. Sky Realty Inc., 339 So. 2d 299 (Fla. 3d DCA 1976); Commercial Union Ins. Co. v. Estate of Plute, 356 So. 2d 54 (Fla. 4th DCA 1978);…
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Orner v. State, 384 So. 2d 192 (Fla. 2d DCA 1980)…as provided in Section 775.082. Section 775.-082 provides that a person who has been convicted of a felony of the second degree may be punished by a term of imprisonment not to exceed fifteen years. This court’s prior statement in Orner v. State, 370 So. 2d 1201 (Fla. 2d DCA 1979), appears to have been based upon Section 810.02, Florida Statutes (1974). That section provides that burglary, without one of the incidents set forth in the court’s opinion, is a felony in the third degree. The maximum imprisonmen…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- COX v. State, 334 So. 2d 568 (Fla. 1976)
- Shanklin v. State, 369 So. 2d 620 (Fla. 2d DCA 1979)