State v. Montigney

MOORE, Judge. Appellee was adjudicated guilty of an attempted burglary of a conveyance and placed on probation for a period of five years s with the special condition that he serve one year in the county jail. Shortly after completing his one year in the county jail appellee was alleged to have violated his probation. The trial court granted ap-pellee’s motion to dismiss the amended warrant charging a violation of probation on the basis that the charge for which appellee was on probation was a first degree misdemeanor and, thus, appellee had served the maximum amount of time for such crime. The State appeals the granting of the motion to dismiss. Attempted burglary is a third degree felony, not a first degree misdemeanor. Gray v. State, 356 So.2d 848 (Fla. 4th DCA 1978); State v. Sudol, 357 So.2d 761 (Fla. 4th DCA 1978); State v. Thompson, 358 So.2d 864 (Fla. 4th DCA 1978). The trial court therefore erred in dismissing the warrant alleging violation of probation on the grounds that attempted burglary of a conveyance was a first degree misdemean546 or. This cause is therefore reversed and remanded with instructions to reinstate the affidavit. REVERSED and REMANDED. ANSTEAD and LETTS, JJ., concur.