Mosely v. State, s. 95-03677
| Decision Date | 28 February 1997 |
| Docket Number | 96-01371,Nos. 95-03677,s. 95-03677 |
| Citation | 688 So.2d 999 |
| Parties | 22 Fla. L. Weekly D549 Deran MOSELY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, Bartow, and Karen Kinney, Assistant Public Defender, Clearwater, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Robert L. Martin, Assistant Attorney General, Tampa, for Appellee.
Deran Mosely appeals his original burglary sentence and the order of revocation of community control from that charge. We affirm the judgment and sentence and the order of revocation but remand for corrections to the judgment and the order of restitution and costs.
Mosely asserts that the information charged him with burglary as a second-degree felony but the burglary was incorrectly scored and listed in the judgment as a first-degree felony. The state concedes that the information contains a scrivener's error regarding the correct subsection of the statute. An erroneous reference to the statute in the information is not fatal to conviction if the information properly pleads the necessary elements of the offense. B.H. v. State, 645 So.2d 987 (Fla.1994), cert. denied, --- U.S. ---, 115 S.Ct. 2559, 132 L.Ed.2d 812 (1995); Danzy v. State, 603 So.2d 1320 (Fla. 1st DCA 1992). See also Janes v. State, 585 So.2d 424 (Fla. 1st DCA 1991). Here, the information references a violation of section 810.02(3), Florida Statutes (1993), rather than section 810.02(2)(a). The state correctly points out, however, that the other language in the information alleges all the necessary elements of section 810.02(2)(a), which is a first-degree felony punishable by life. Because the information recited the appropriate factual description of a violation of section 810.02(2)(a), we treat the citation to the incorrect statute as a scrivener's error and remand this case for correction of the judgment to indicate a conviction under section 810.02(2)(a).
Mosely next argues that the judgment in the revocation of probation case incorrectly reflects a restitution amount of $974. The state concedes that the trial court did not intend to impose the $974 as restitution alone. The transcript of the sentencing hearing in the revocation case indicates that the state represented to the trial court that the total amount of costs and restitution is $974, only $580 of that amount was in restitution. The court then stated, "I am...
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