Marshall McCraney v. State

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

MARSHALL McCRANEY,

Appellant, v. Case No. 5D15-2148

STATE OF FLORIDA,

Appellee. ________________________________/ Opinion filed January 6, 2017

Appeal from the Circuit Court for Volusia County, Frank Marriott, Judge.

James S. Purdy, Public Defender, and Jacqueline Rae Luker, Assistant Public Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

Marshall McCraney ("Appellant") appeals the postconviction court's denial of his Florida Rule of Criminal Procedure 3.800(b) motion to correct an illegal sentence. The State charged Appellant with multiple counts in four separate cases that were consolidated for plea and sentencing, including one count of criminal mischief. However, *2 the plea form did not include the criminal mischief count, and the trial court did not discuss that count during the plea colloquy. Although Appellant did not raise this issue below, the State properly concedes that a judgment adjudicating a defendant guilty of an offense to which he or she did not plead constitutes fundamental error. See, e.g., Brown v. State, 960 So. 2d 905, 905-06 (Fla. 2d DCA 2007). Accordingly, we reverse and remand for the trial court to vacate Appellant's conviction and sentence for criminal mischief. We affirm in all other respects.

AFFIRMED in part; REVERSED in part; REMANDED with Instructions. PALMER, EVANDER and WALLIS, JJ., concur.