DERAN MOSELY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Deran Mosely appealed his burglary conviction and community control revocation sentence, arguing that the charging information contained a statutory reference error and that the restitution amount was incorrectly calculated. The court affirmed the conviction and revocation but remanded for technical corrections to the judgment and restitution order.
An erroneous reference to a statute in the information is not fatal to conviction if the information properly pleads the necessary elements of the offense. The trial court's restitution order required correction to properly distinguish between the $580 restitution amount and $394 costs, totaling $974.
[1] An erroneous reference to a statute in an information is not fatal to a conviction if the information properly pleads the necessary elements of the offense.
[2] A conviction may be sustained even if the information cites the incorrect statutory subsection, provided the factual allegations within the information sufficiently descr…
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Join FLexlaw to unlock all legal intelligence“An erroneous reference to the statute in the information is not fatal to conviction if the information properly pleads the necessary elements of the offense.”
Establishes the legal standard for evaluating defects in charging documents.
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Join FLexlaw to unlock all legal intelligenceMosely was charged with burglary as a second-degree felony but the information incorrectly cited section 810.02(3) instead of section 810.02(2)(a), Fl…
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PARKER, Acting Chief Judge.
Deran Mosely appeals his original burglary sentence and the order of revocation of community control from that charge. We affirm the judgment and sentence and the order of revocation but remand for corrections to the judgment and the order of restitution and costs.
Mosely asserts that the information charged him with burglary as a second-degree felony but the burglary was incorrectly scored and listed in the judgment as a first-degree felony. The state concedes that the information contains a scrivener’s error regarding the correct subsection of the statute. An erroneous reference to the statute in the information is not fatal to conviction if the information properly pleads the necessary elements of the offense. B.H. v. State, 645 So. 2d 987 (Fla.1994), cert, denied, — U.S. —, 115 S.Ct. 2559, 132 L.Ed.2d 812 (1995); Danzy v. State, 603 So. 2d 1320 (Fla. 1st DCA 1992).
See also Janes v. State, 585 So. 2d 424 (Fla. 1st DCA 1991).
Here, the information references a violation of section 810.02(3), Florida Statutes (1993), rather than section 810.02(2)(a).
The state correctly points out, however, that the other language in the information alleges all the necessary elements of section 810.02(2)(a), which is a first-degree felony punishable by life. Because the information recited the appropriate factual description of a violation of section 810.02(2)(a), we treat the citation to the incorrect statute as a scrivener’s error and remand this case for correction of the judgment to indicate a conviction under section 810.02(2)(a).
Mosely next argues that the judgment in the revocation of probation case incorrectly reflects a restitution amount of $974. The state concedes that the trial court did not intend to impose the $974 as restitution alone. The transcript of the sentencing hearing in the revocation case indicates that the state represented to the trial court that the total amount of costs and restitution is $974, only $580 of that amount was in restitution. The court then stated, “I am going to require you to pay those monetaries of $974 within five years of your release.” It appears that the trial court intended to impose the same costs and $580 of restitution, totaling $974, that the trial court imposed at the original sentencing. We remand the order of restitution and costs in the revocation ease and direct the trial court to correct the cost order to reflect the same costs and restitution amounts indicated in the order in the original case. Mosely does not need to be present for the trial court’s corrections to the court records.
We affirm the judgment and sentence and remand for correction of the judgment and cost order. FULMER and NORTHCUTT, JJ., concur.
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Cited By (24 total)
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McMILLAN v. State, 832 So. 2d 946 (Fla. 5th DCA 2002)…essential element of the crime of armed robbery with a firearm. See §§ 812.13(1) and (2)(a), Fla. Stat. (2001). The information sufficiently notified McMillan that he was charged with committing a robbery by carrying a firearm. See Mosely v. State, 688 So. 2d 999 (Fla. 2d DCA 1997). McMillan has failed to demonstrate otherwise. Sanders, 386 So. 2d at 257. Having concluded that the information sufficiently charged robbery with a firearm, we find that it was unnecessary for the state to prove that the firearm…
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Jordan v. State, 728 So. 2d 748 (Fla. 3d DCA 1998)…dant guilty of the lesser included offense of attempted second-degree murder of a law enforcement officer, with a firearm.3 The violation of section 775.0823 was sufficiently shown. See B.H. v. State, 645 So. 2d 987, 996 (Fla.1994); Mosely v. State, 688 So. 2d 999, 999-1000 (Fla. 2d DCA 1997); Sanders v. State, 386 So. 2d 256, 257 (Fla. 5th DCA 1980); Wood v. State, 354 So. 2d 134, 135 (Fla. 1st DCA 1978); Tukes v. State, 346 So. 2d 1056, 1056 (Fla. 1st DCA 1977); King v. State, 336 So. 2d 1200, 1202 (Fla. 2d…
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Rodriguez v. State, 223 So. 3d 1053 (Fla. 2d DCA 2017)…at the judgment and sentence [*1055] accurately reflect the jury’s verdict.”). Correspondingly, the trial court should amend the judgment for count 3 to reflect the correct statute number under which Mr. Rodriguez was sentenced. See Mosely v. State, 688 So. 2d 999, 1000 (Fla. 2d DCA 1997) (“[W]e treat the citation to the incorrect statute as a scrivener’s error and remand this case for correction of the judgment to indicate a conviction under section 810.02(2)(a).”). Mr. Rodriguez need not be present when th…
Previewing 3 of 24 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- B.H. v. State, 645 So. 2d 987 (Fla. 1994)
- Danzy v. State, 603 So. 2d 1320 (Fla. 1st DCA 1992)
- McATEE v. McATEE, 585 So. 2d 424 (Fla. 1st DCA 1991)
- Janes v. State, 585 So. 2d 424 (Fla. 1st DCA 1991)