JAMES LEE WARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that attempted uttering is not a distinct offense under Florida law, and thus, a conviction for it must be reversed.
The defendant was convicted of attempted forgery, attempted uttering, and grand theft. He appealed his convictions and sentences.…
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SCHEB, Judge.
The state charged defendant James Lee Ward with forgery, uttering a forged instrument, and grand theft. A jury convicted him of attempted forgery, attempted uttering, and grand theft. The trial court sentenced him to concurrent terms of one year imprisonment for attempted forgery, one year for attempted uttering, and five years for grand theft. Ward challenges his convictions and sentences on all counts.
Ward argues that attempted uttering is not an offense under Florida law. He is correct. King v. State, 339 So. 2d 172 (Fla.1976). Imposition of judgment and sentence for attempted uttering is fundamental error requiring reversal. This is true even where, as here, defense counsel requested a verdict form on attempted uttering be given to the jury. See State v. Sykes, 434 So. 2d 325 (Fla.1983); Achin v. State, 436 So. 2d 30 (Fla.1982).
Accordingly, we vacate defendant’s conviction and sentence for attempted uttering. The state, however, is not barred from retrying defendant on a charge of uttering a forged instrument. See Sykes and Achin.
We find no merit in Ward’s other contention. .Therefore, we affirm defendant’s other two convictions and sentences for attempted forgery and grand theft.
HOBSON, A.C.J., and LEHAN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Klayman, 835 So. 2d 248 (Fla. 2002)…ich he was convicted does not exist.”); Fredericks v. State, 675 So. 2d 989, 990 (Fla. 1st DCA 1996) ("Conviction of a non-existent crime is fundamental error mandating reversal even when the error was invited by the defendant.... ”); Ward v. State, 446 So. 2d 267, 267 (Fla. 2d DCA 1984) ("Ward argues that attempted uttering is not an offense under Florida law. He is correct. Imposition of judgment and sentence for attempted uttering is fundamental error requiring reversal.”). . Postconviction claims for rel…
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Watkins v. State, 516 So. 2d 1043 (Fla. 1st DCA 1987)…uttering of a forged instrument, which crime was subsequently held by the supreme court to be nonexistent in King v. State, 339 So. 2d 172 (Fla.1976). Imposition of a judgment and sentence for attempted uttering is fundamental error. Ward v. State, 446 So. 2d 267 (Fla. 2d DCA 1984). We agree with appellant that it was error for the court to score that prior conviction and analogize the issue to those cases wherein it was held that it is improper to enhance a subsequent sentence on the basis of a prior uncoun…
Authorities Cited
- State v. Sykes, 434 So. 2d 325 (Fla. 1983)
- Achin v. State, 436 So. 2d 30 (Fla. 1982)
- King v. State, 339 So. 2d 172 (Fla. 1976)