WOODROW NAPIER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1985-05-07
No. AW-344
Shivers, J., Smith, J., Wigginton, J.
468 So. 2d 446 Florida District Court of Appeal, First District (1985) Positive Treatment
Cited by 6 cases

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Synopsis

Affirmed conviction for trespass and grand theft, but remanded for resentencing on trespass because the judgment indicated conviction under a second-degree misdemeanor statute with a 60-day maximum, not a one-year maximum.

Holding

A trial court must correct a sentence imposed under the wrong statutory subsection when the judgment indicates conviction under a second-degree misdemeanor provision with a 60-day maximum rather than the first-degree misdemeanor provision cited in sentencing.

Headnotes

[1] A sentence imposed under a statutory provision with a longer maximum term must be corrected when the judgment indicates conviction under a different statutory subsection…

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Facts & Procedural History

Appellant was charged with burglary of a dwelling and grand theft. After jury trial, he was convicted of trespass as a lesser included offense and gra…

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Topics
Misdemeanor Sentencing Misdemeanor Classification Anders Brief Burglary Of A Dwelling

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Opinion of the Court
SHIVERS, Judge.

SHIVERS, Judge.

Appellant, defendant below, was charged by information with burglary of a dwelling and grand theft. After a jury trial of both appellant and a codefendant, appellant was found guilty of trespass as a lesser included offense of burglary, and grand theft as charged. The trial court then sentenced appellant to 30 months in state prison for the grand theft conviction, and a concurrent one-year term in county jail on the trespass conviction.

Appellant’s counsel has filed an Anders1 brief with this court, stating that he is unable to make a good faith argument that error occurred in the trial court and, therefore, cannot present an argument in support of the allegations contained in the Statement of Judicial Acts to be Reviewed. We agree that no error occurred below with regard to appellant’s conviction. As to appellant’s one-year sentence for trespass, however, we must remand for correction by the lower court. Although trespassing under section 810.08(2)(b) is a first-degree misdemeanor punishable by imprisonment not to exceed one year, the judgment in this case indicates appellant was found guilty of trespassing under section 810.08(2)(a). That subsection is a second-degree misdemeanor, punishable by imprisonment not to exceed 60 days. Section 775.082(4)(b). Therefore, appellant’s concurrent one-year sentence for trespassing is remanded for correction by the trial court and the judgment is AFFIRMED.

SMITH and WIGGINTON, JJ., concur. . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

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Citator

Cited By

  • Stubbs v. State, 470 So. 2d 768 (Fla. 1st DCA 1985)
    …n July 1, 1984. Rule 3.701(d)(14) cannot be retroactively applied. Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984); Randolph v. State, 458 So. 2d 64 (Fla. 1st DCA 1984); Saunders v. State, 459 So. 2d 1119 (Fla. 1st DCA 1984); Oldfield v. State, 468 So. 2d 446 (Fla. 1st DCA 1985). Although a violation of probation is a permissible reason for departure from the guidelines, the trial court must in writing state that such is the reason for departure. Saunders, supra. However, in the case sub judice, the tria…
  • Ozzie Elbert v. State, 473 So. 2d 30 (Fla. 1st DCA 1985)
    …remand for resentencing, because we conclude the trial court erred in relying on an amendment to Rule 3.701(d)(14), Florida Rules of Criminal Procedure, for sentencing prior to July 1, 1984, the effective date of the amended rule. Oldfield v. State, 468 So. 2d 446 (Fla. 1st DCA 1985); Frazier v. State, 463 So. 2d 458 (Fla. 1st DCA 1985); Barnes v. State, 461 So. 2d 216 (Fla. 1st DCA 1984); Saunders v. State, 459 So. 2d 1119 (Fla. 1st DCA 1984). ERVIN, WENTWORTH and BAR-FIELD, JJ., concur.…
  • C.D.S. v. State, 475 So. 2d 1017 (Fla. 4th DCA 1985)
    …se.” § 39.11(3), Fla. Stat. (1983). [*1018] The maximum sentence an adult could have received for committing the offense at issue here is sixty days. See § 810.08(2)(a), Fla.Stat. (1983); § 775.-082(4)(b), Fla.Stat. (1983). See also Napier v. State, 468 So. 2d 446 (Fla. 1st DCA 1985). Because appellants’ sentences have the impermissible effect of authorizing HRS to extend commitment beyond sixty days, the sentences are invalid. See J.D.B. v. State, 463 So. 2d 486 (Fla. 2d DCA 1985); G.W.M. v. State, 391 So. 2…

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