ADOLPH JAMES CHIPP, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed denial of Rule 3.850 motion, holding that robbery with a weapon conviction properly classified as first-degree felony and habitualization was proper despite surplusage reference to enhancement statute.
Robbery with a weapon under section 812.13(2)(b) is properly classified as a first-degree felony, and habitualization is proper even where an enhancement statute reference becomes surplusage through amendment.
[1] Where an information is amended by interlineation to delete an aggravated battery charge, a reference to the felony enhancement statute becomes surplusage and does not af…
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Join FLexlaw to unlock all legal intelligenceChipp was convicted of robbery with a weapon on September 10, 1991. The information was amended by interlineation to delete the charge of aggravated b…
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PER CURIAM.
Adolph James Chipp appeals an order denying his second motion under Florida Rule of Criminal Procedure 3.850. His first claim is without merit. Assuming for purposes of discussion that his second claim is not procedurally barred, we note that on the facts of this case, defendant-appellant’s conviction rests solely on section 812.13(2)(b), Florida Statutes (1991), robbery with a weapon.1 As a result of an amendment to the information by interlineation, the reference to section 775.087, Florida Statutes, became mere surplusage 2 and the inclusion of section 775.087 on the final judgment was likewise surplus-age. The final judgment correctly classifies the offense at conviction as a first degree felony. See id. § 812.13(2)(b). It follows that the defendant was properly subjected to habitualization, and the rule in Lamont v. State, 610 So. 2d 435, 438 (Fla.1992), has no application to this case.
Affirmed.
. The date of the crime was September 10, 1991.
. The amendment deleted the charge that during the robbery, defendant committed an aggravated battery. Section 775.087(1), Florida Statutes (1991), enhances the level of felony - where, among other things, defendant commits an aggravated battery during commission of the underlying crime.
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Authorities Cited
- Lamont v. State, 610 So. 2d 435 (Fla. 1992)