DANIEL A. THARP, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court's order imposing adult sanctions was sufficiently particularized and contemporaneous, and that the enhancement of the aggravated assault charge was a scrivener's error.
The appellant was appealing his sentencing as an adult for a second time, arguing non-compliance with prior mandate and case law. The trial court had …
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PER CURIAM.
This is the second appeal in this ease. In the previous appeal, we reversed and remanded for compliance with the dictates of Troutman v. State, 680 So. 2d 528 (Fla.1993), in the sentencing court’s decision to impose adult sanctions. Tharp v. State, 648 So. 2d 229 (Fla. 2d DCA 1994). The appellant now brings his sentencing as an adult before us again complaining that the sentencing court did not comply with either our mandate or Troutman. We disagree. The order imposing adult sanctions is sufficiently particularized and contemporaneous to comport with Troutman and the previous mandate.
The written judgment shows that the trial court enhanced one of the offenses with which the appellant was charged and convicted, aggravated assault, from a third degree felony to one of second degree, ostensibly because a firearm was used to commit the offense. §§ 784.021 and 775.087(1), Fla. Stat. (1991). This was error since the use of a firearm is an essential element of aggravated assault. Rodriguez v. State, 650 So. 2d 1111 (Fla. 2d DCA 1995); Watson v. State, 591 So. 2d 951 (Fla. 2d DCA 1991).
However, the trial court did not sentence the appellant to an enhanced sentence for a second degree felony since it imposed a five-year term of incarceration1 concurrent with the appellant’s other sentences. Because a term of incarceration consistent with a conviction for a third-degree felony was actually imposed, we choose to treat the enhancement from a third degree felony to a second degree felony on the written judgment as a scrivener’s error.
Accordingly, we affirm the sentences under review and remand only for correction of the judgment in accord with this opinion.
DANAHY, A.C.J., and FULMER and WHATLEY, JJ., concur. . The five-year sentence for the aggravated assault also contained a provision for a three-year mandatory minimum because a firearm was used. § 775.087(2), Fla. Stat. (1991). This was properly done and the appellant does not argue otherwise.
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Maceo Wright v. State, 708 So. 2d 1045 (Fla. 4th DCA 1998)…PER CURIAM. We affirm appellant’s judgment and sentences in all respects and remand the judgment solely for correction of the scrivener’s error as to Count IV, aggravated assault with a firearm, a third-degree felony. See Tharp v. State, 677 So. 2d 1340, 1341 (Fla. 2d DCA 1996) (treating enhancement of aggravated assault from a third degree felony to a second degree felony on written judgment as scrivener’s error where court imposed term of incarceration consistent with conviction for third-degree…
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Gatlin v. State, 695 So. 2d 821 (Fla. 2d DCA 1997)…e, choose to treat the adjudication for armed burglary on the judgment as a scrivener’s error. We remand for the trial court to correct the written judgment to reflect that Gatlin was adjudicated guilty of burglary of a dwelling. See Tharp v. State, 677 So. 2d 1340 (Fla. 2d DCA 1996). We otherwise affirm the judgment and sentence. Affirmed in part, reversed in part and remanded for correction of the judgment. PARKER, A.C.J., and FULMER, J., concur.…
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Broome v. State, 774 So. 2d 719 (Fla. 2d DCA 2000)…s that the trial court must have improperly reclassified his conviction for aggravated assault with a firearm from a third degree felony to a second degree felony based on the use of a firearm, which is an element of his offense. See Tharp v. State, 677 So. 2d 1340 (Fla. 2d DCA 1996); Vickers v. State, 630 So. 2d 1229 (Fla. 2d DCA 1994). Without speculating as to how the error occurred, the State concedes that the aggravated assault with a firearm crime for which Mr. Broome should have been adjudicated and sen…
Authorities Cited
- Watson v. State, 591 So. 2d 951 (Fla. 2d DCA 1991)
- Whitaker v. Dep't of Ins. & Treas., 680 So. 2d 528 (Fla. 1st DCA 1996)
- Reynaldo Rodriguez, Jr. v. State, 650 So. 2d 1111 (Fla. 2d DCA 1995)
- Tharp v. State, 648 So. 2d 229 (Fla. 2d DCA 1994)