RICHARD CHARLES REED, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1991-04-19
No. 90-00066
SCHOONOVER, C.J., and DANAHY, J., concur.
579 So. 2d 198 Florida District Court of Appeal, Second District (1991) Positive Treatment
Cited by 5 cases
Topics
Dui Leaving The Scene Of An Accident Elements Of A Crime

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Opinion of the Court
RYDER, Judge.

RYDER, Judge.

We affirm the appellant’s conviction of DUI and leaving the scene of an accident involving injury. Although the conviction can be affirmed, the sentence must be reversed. This court has held that where the information failed to allege all the proper elements of the crime charged, the court cannot sentence the defendant on the more serious crime. Helmick v. State, 569 So. 2d 869 (Fla. 2d DCA 1990).

Section 316.193, Florida Statutes (1987), provides for periods of incarceration in excess of six months if the state alleges and it is proven at trial that the defendant is a repeat offender, damaged the property or person of another, or had a blood alcohol level of .20 or above. Here, the appellant was a first time offender, his blood alcohol level was .153, and the information did not allege in Count II that he had caused bodily injury. Accordingly, the trial court erred in sentencing appellant to ten months in jail.

Therefore, the sentence imposed for DUI is vacated and this cause is remanded for resentencing consistent with this opinion.

Affirmed in part; reversed in part.

SCHOONOVER, C.J., and DANAHY, J., concur.

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Citator

Cited By

  • Lew Earle Williams v. Sch. Bd. OF Palm Beach Cnty., 770 So. 2d 706 (Fla. 4th DCA 2000)
    ….Ct. 125, 127-28, 97 L.Ed. 77 (1952)(construing a similar federal rule to forbid the trial judge from entering judgment on an untimely motion even if the court specifically reserved ruling on it at trial), See also Bailey v. Mobile Home Park Realty, 579 So. 2d 198 (Fla. 2d DCA 1991)(post-trial motion for directed verdict which was one day late did not toll rendition of judgment resulting in appeal being untimely). The trial court, accordingly, erred in granting the School Board’s motion for directed verdict.…
  • State v. Haddix, 668 So. 2d 1064 (Fla. 4th DCA 1996)
    …3 provides enhanced penalties for anyone convicted under subsection (1) who had a BAL of .20 percent or above or who was accompanied in the vehicle by a minor. However, unlike DUI with property damage or injury to a person, see, e.g., Reed v. State, 579 So. 2d 198 (Fla. 2d DCA 1991); Leone v. State, 590 So. 2d 29 (Fla. 5th DCA 1991), or felony DUI based on three or more prior DUI convictions, see, e.g., Rodriguez, 575 [*1068] So. 2d at 1265, the degree or level of crime does not change due to the .20 percent…
  • State v. Vanette Webb, 786 So. 2d 602 (Fla. 1st DCA 2001)
    …Webb's conviction pursuant to her motion seeking new trial. In the body of such motion, Webb renewed her motion for judgment of acquittal and cited the rule governing motions in arrest of judgment. See, e.g., Bailey v. Mobile Home Park Realty, Inc., 579 So. 2d 198 (Fla. 2d DCA 1991); State v. Harris, 439 So. 2d 265 (Fla. 2d DCA 1983).…

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