DAVID LEE DIGGS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the defendant could only be convicted of a misdemeanor because the information was not amended to include the element of willfulness required for a felony charge.
Diggs was charged with leaving the scene of an accident involving personal injury. The information was amended to correct the statute number, but not …
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PER CURIAM.
Diggs was tried in the circuit court on an information charging him with unlawfully departing the scene of an accident involving a personal injury.1 At trial the state recognized that the statute number set forth in the information, to wit, § 316.061, was incorrect and moved to amend the statute number to § 316.027, which motion was granted by the court. The state failed to amend the body of the information to include the word “willfully” so as to make the offense a felony under § 316.027(2).2
The jury returned a guilty verdict and the court, assuming that Diggs had been convicted of a felony under § 316.027(2), sentenced him to six months to five years. Subsequently Diggs filed a motion to vacate and after a hearing the court vacated the original sentence and re-sentenced Diggs to one year in the county jail.
A person not charged with willfully failing to stop under these circumstances can only be convicted of a misdemeanor. State ex rel. Miller v. Patterson, Fla.App. 2nd, 1973, 284 So. 2d 9.
Accordingly, the judgment and sentence on the felony charge are vacated and the cause is remanded with instructions to enter a judgment of conviction on the misdemean-or charge.
HOBSON, Acting C. J., and GRIMES and SCHEB, JJ., concur. . He was also charged with manslaughter arising out of the same circumstances but was acquitted.
. When instructing the jury on the “material parts of this charge,” the judge also failed to include the element of willfulness.
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Stanfill v. State, 384 So. 2d 141 (Fla. 1980)…16.027, Florida Statutes (1975), creates but a single crime, that being the felony of “willfully” leaving the scene of an accident. This decision conflicts with the decisions in State v. Patterson, 284 So. 2d 9 (Fla.2d DCA 1973), and Diggs v. State, 334 So. 2d 333 (Fla.2d [*142] DCA 1976), which hold that section 316.027 creates two crimes, the misdemeanor of “unlawfully” leaving the scene and the felony of “willfully” leaving. We resolve this conflict by adopting the first district’s holding that section 316…1 / 3
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Stanfill v. State, 360 So. 2d 128 (Fla. 1st DCA 1978)…appeal we are required to construe section 316.027(1) and (2), Florida Statutes 1975, in the light of State ex rel. Miller v. Patterson, 284 So. 2d 9 (Fla.App. 2 1973); State ex rel. Seal v. Shepard, 299 So. 2d 644 (Fla.App. 1 1974); Diggs v. State, 334 So. 2d 333 (Fla.App. 2 1976); Holmes v. State, 342 So. 2d 134 (Fla.App. 1 1977) and other relevant statutes and rules which will be hereinafter discussed. By grand jury indictment appellant was charged with one count of manslaughter and three counts of unlawf…
Authorities Cited
- State of Fla. ex rel. Kenneth J. Miller v. The Honorable William A. Patterson, 284 So. 2d 9 (Fla. 2d DCA 1973)