Hauss v. State
| Decision Date | 29 January 1992 |
| Docket Number | No. 91-1460,91-1460 |
| Citation | 592 So.2d 783 |
| Parties | Robert B. HAUSS, Appellant, v. STATE of Florida, Appellee. 592 So.2d 783, 17 Fla. L. Week. D339 |
| Court | Florida District Court of Appeals |
Appeal from the Circuit Court for Broward County; Stanton S. Kaplan, Judge.
Richard L. Jorandby, Public Defender, and Tanja Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and John Tiedemann, Asst. Attorney General, West Palm Beach, for appellee.
In Hauss v. State, 574 So.2d 1141 (Fla. 4th DCA 1991), the appellant's conviction and sentence for felony D.U.I. was reversed because Hauss' three previous D.U.I. convictions were not alleged in the information. This result was mandated by State v. Rodriguez, 575 So.2d 1262, 1264 (Fla.1991).
In Hauss I, this court directed the trial court to "enter an adjudication of first offense D.U.I. and to resentence the defendant, accordingly." On remand, however the trial court failed to vacate the conviction and sentenced appellant to 12 months in jail and payment of a fine of $2,500. This sentence exceeds the maximum sentence allowed by law for a first offense D.U.I. Section 316.193(2)(a), Fla.Stat. (1989).
The state acknowledges that this sentence is illegal and argues only whether the illegal sentence should be remedied by this direct appeal or pursuant to Florida Rule of Criminal Procedure 3.800(a). However, it is well established that a sentence resulting in excessive incarceration constitutes fundamental error remediable by direct appeal. E.g. Wickett v. State, 467 So.2d 430 (Fla. 4th DCA 1985).
We recognize that the trial court, notwithstanding the explicit wording of our prior opinion, may have believed that the longer misdemeanor sentence was permissible because the defendant had at least three D.U.I. convictions....
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Jenkins v. State
...allege the element making that theft a first degree misdemeanor. See Clay v. State, 595 So.2d 1052 (Fla. 4th DCA 1992); Hauss v. State, 592 So.2d 783 (Fla. 4th DCA 1992); Meenaghan v. State, 601 So.2d 307 (Fla. 4th DCA We reverse and remand for further proceedings consistent herewith. GLICK......
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State v. Haddix
...DUI convictions need not be alleged in the charging document. This issue was touched upon, but not resolved, in Hauss v. State, 592 So.2d 783 (Fla. 4th DCA 1992) ("Hauss II "), which was before this court after remand to the trial court by Hauss v. State, 574 So.2d 1141 (Fla. 4th DCA 1991) ......