THOMAS E. HENSHAW, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Henshaw appeals his burglary conviction and sentencing. The court agrees with three of his contentions: he was improperly adjudged guilty of burglary of a dwelling rather than a structure to which he pleaded guilty; the trial court improperly departed from sentencing guidelines; and a violation of community control order incorrectly referenced a jail escape that was not heard by the trial court. The court rejects his fourth contention that his jail sentence was modified.
The court agrees with contentions one, two, and three. Henshaw was improperly adjudged guilty of burglary of a dwelling, the sentencing guidelines were violated, and the order finding violation of community control must be corrected to remove reference to the unheard April 23, 1988 escape. The court rejects the fourth contention, finding that while a scrivener's error may have created the appearance of modification, the six-month jail sentence was not actually altered.
[1] A conviction for burglary of a dwelling cannot stand if the defendant pleaded guilty only to burglary of a structure, absent a concession of error by the state.
[2] A trial court improperly departs from sentencing guidelines by imposing a split sentence of community control consecutive to prison time when sentencing for a violation o…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Defendant contends that he pleaded guilty to burglary of a structure, not burglary of a dwelling, and was thereafter improperly adjudged guilty of burglary of a dwelling; the state concedes error in this regard; we remand for correction of the error.”
Establishes the improper adjudication of guilt on a charge different from the guilty plea
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceHenshaw pleaded guilty to burglary of a structure but was adjudged guilty of burglary of a dwelling. On May 25, 1988, the trial court sentenced him fo…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Burglary Of A Structure cases and more on FLexlaw
PER CURIAM.
Defendant appeals from his conviction for burglary of a dwelling and from his May 25, 1988 sentencing. We agree with three of defendant’s contentions and disagree with the fourth. The three contentions with which we agree are as follows.
Defendant contends that he pleaded guilty to burglary of a structure, not burglary of a dwelling, and was thereafter improperly adjudged guilty of burglary of a dwelling; the state concedes error in this regard; we remand for correction of the error. Defendant contends that the trial court, when sentencing him on May 25, 1988 for violation of the community control imposed in February, 1988, improperly departed from the sentencing guidelines by imposing a split sentence of two years community control consecutive to two and one-half years prison; the state concedes error in this regard; we remand for appropriate and proper resentencing. See State v. VanKooten, 522 So. 2d 830 (Fla.1988); Pope v. State, 561 So. 2d 554 (Fla.1990). Defendant contends that the trial court’s May 25, 1988 written order finding a violation of community control in his escape from the Hillsborough County Jail was improper because the order referred to an escape on April 23, 1988; the state concedes that the trial court did not hear testimony of an escape on that date; we strike the portion of the order referring to that escape.
The contention with which we disagree is as follows. Defendant contends that the trial court’s May 25, 1988 sentence of community control for violation of community control illegally modified a six month jail sentence defendant had already begun serving. However, from our review of the record, we conclude that defendant’s jail sentence was not modified. When he was sentenced for violation of community control on May 25 defendant received, as we have said, a sentence of two years community control which was to run consecutive to a two and one-half year prison sentence. Nothing was done to alter the jail sentence previously imposed.
Defendant may have believed that his six month jail sentence, which was in case number 86-14794, was modified because of an apparent scrivener’s error in the May 25, 1988 judgment in that case. That judgment indicates that he received “two (2) years probation each count concurrent but consecutive to FSP [Florida State Prison] on 86-11771.” (Emphasis added.) That may have indicated to defendant that his sentence on the count for which he had received six months jail had been modified. But the record otherwise indicates that defendant received two years community control only on count one of case number 86-14794 and that the six month jail sentence on count two was not altered. On remand the scrivener’s error in the May 25, 1988 judgment should be corrected.
Affirmed in part, reversed in part, and remanded for proceedings consistent herewith.
LEHAN, A.C.J., and PATTERSON and ALTENBERND, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Henshaw v. State, 564 So. 2d 541 (Fla. 2d DCA 1990)…serving and (b) with respect to both counts, it had been imposed as a part of an improper split sentence. We disagreed with argument (a) in our opinion of this same date in case number 88-01718, and we agreed with argument (b) in that same opinion. 564 So. 2d 540 (Fla. 2d DCA 1990). With respect to argument (a), in this appeal the state argues the jail sentence imposed on count two was not a jail sentence but was a special condition of probation or community control. However, the record indicates that the s…
-
Henshaw v. State, 590 So. 2d 1132 (Fla. 2d DCA 1992)…HALL, Judge. Henshaw challenges his sentences imposed pursuant to directions from this court upon remand in Henshaw v. State, 564 So. 2d 540 (Fla. 2d DCA 1990), and Henshaw v. State, 564 So. 2d 541 (Fla. 2d DCA 1990). We agree with Henshaw's first contention, as does the state, that his judgment incorrectly reflects the degree of the burglary of which he was convicted as a second, rath…
Authorities Cited
- Pope v. State, 561 So. 2d 554 (Fla. 1990)
- State v. VanKOOTEN, 522 So. 2d 830 (Fla. 1988)
- State v. Bodine, 522 So. 2d 830 (Fla. 1988)