J.B., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the conviction for resisting merchandise recovery was subsumed by the robbery conviction and reversed it. The court also affirmed the residential commitment sentence, disagreeing with the First District's interpretation of the relevant statute.
[1] A conviction for resisting merchandise recovery may be subsumed by a conviction for robbery when the facts and charges overlap.
[2] A scrivener's error in a judgment may be corrected on appeal.
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of delinquency by robbery and resisting merchandise recovery. The trial court sentenced the appellant to residential commitmen…
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DAUKSCH, Judge.
This is an appeal from a juvenile delinquency case. Appellant was convicted of delinquency by robbery, section 812.13(2)(c), Florida Statutes (1997) and resisting merchandise recovery, section 812.015(g), Florida Statutes (1997). Because the latter is subsumed by the former under the charge and facts of this case, we reverse the judgment for the resisting merchandise recovery. From a reading of the record we are aware the judge did not intend for the judgment to list convictions for both. A scrivener’s error was overlooked.
Appellant asserts as error that the judge sentenced him to a residential commitment rather than the recommended community control with parental supervision. He urges that we follow the cases from the First District Court of Appeal. E.D.P. v. State, 23 Fla. L. Weekly D348, — So. 2d - (Fla. 1st DCA Jan. 27), rev. granted, Case No. 92,345, — So. 2d - (Fla. May 19, 1998); R.A.M. v. State, 695 So. 2d 1308 (Fla. 1st DCA), rev. granted, Case No. 91,035, — So. 2d -(Fla. Dec. 16, 1997), approved on other grounds sub nom. State v. T.M.B., 716 So. 2d 269 (Fla.1998); S.R. v. State, 683 So. 2d 576 (Fla. 1st DCA 1996). We decline to follow those cases and choose to follow the ruling and logic in D.L.B. v. State, 707 So. 2d 844 (Fla. 2d DCA), rev. granted, 717 So. 2d 530 (Fla.1998) wherein the court held:
We disagree, however, with the First District’s interpretation of the statute. We do not believe the statute requires the court, once it has already rejected the Department’s non-commitment recommendation, to then ask the Department for a second recommendation. A request for a second recommendation would seem particularly unnecessary in view of section 39.052(4)(e)3., Florida Statutes (1995), the next paragraph of the statute, which allows the court to reject the Department’s restrictions level recommendation provided that the court state for the record the reasons for its deviation from the Department’s recommendation....
We certify the conflict with the First District Court of Appeal’s cases.
AFFIRMED in part; REVERSED in part.
HARRIS and THOMPSON, JJ., concur.
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A.P. v. State, 718 So. 2d 951 (Fla. 5th DCA 1998)…recommended by DJJ along with commitment to a level 6 was in the best interest of A.P. -Once the recommendation from the DJJ is rejected, the court does not need another recommendation. State v. E.D.P., No. 92345 (Fla. Oct. 8, 1998); J.B. v. State, 715 So. 2d 1144, 23 Fla. L. Weekly D1956 (Fla. 5th DCA Aug.21,1998). VACATED and REMANDED. GOSHORN and PETERSON, JJ., concur.…
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D. K. v. State, 717 So. 2d 189 (Fla. 5th DCA 1998)…not fundamental in nature and is waived, in the absence of a proper objection. See Summers v. State, 684 So. 2d 729 (Fla.1996); State v. Montague, 682 So. 2d 1085 (Fla.1996). AFFIRMED. GRIFFIN, C.J., and THOMPSON, J., concur. . See J.B. v. State, 715 So. 2d 1144 (Fla. 5th DCA 1998), A.H.D. v. State, 715 So. 2d 1145 (Fla. 5th DCA 1998).…
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J.B. v. State, 731 So. 2d 1256 (Fla. 1999)…PER CURIAM. We have for review J.B. v. State, 715 So. 2d 1144 (Fla. 5th DCA 1998), based on conflict with E.D.P. v. State, 23 Fla. L. Weekly D348, 728 So. 2d 1173 (Fla. 1st DCA 1998), quashed, 23 Fla. L. Weekly S524, 724 So. 2d 1144 (Fla.1998), and other cases.1 We have jurisdiction. Art. V, § 3(b)(3), Fla. Co…
Authorities Cited
- State v. T.M.B., 716 So. 2d 269 (Fla. 1998)
- In the Interest of S.R. v. State, 683 So. 2d 576 (Fla. 1st DCA 1996)
- R.A.M. v. State, 695 So. 2d 1308 (Fla. 1st DCA 1997)
- D.L.B. v. State, 707 So. 2d 844 (Fla. 2d DCA 1998)