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Chipp v. State

District Court of Appeal of Florida, Third District
Feb 25, 1998
708 So. 2d 607 (Fla. Dist. Ct. App. 1998)

Opinion

Case No. 97-3429

Opinion filed February 25, 1998. JANUARY TERM, A.D. 1998

An appeal under Fla. R. App. P. 9.140(I) from the Circuit Court for Dade County, Richard V. Margolius, Judge. L.T. No. 91-34536

Adolph James Chipp, in proper person.

Robert A. Butterworth, Attorney General, and Dominique T. Suite-Brown, for appellee.

Before JORGENSON, COPE, and GODERICH, JJ.


Adolph James Chipp appeals an order denying his second motion under Florida Rule of Criminal Procedure 3.850. His first claim is without merit. Assuming for purposes of discussion that his second claim is not procedurally barred, we note that on the facts of this case, defendant-appellant's conviction rests solely on section 812.13(2)(b), Florida Statutes (1991), robbery with a weapon. As a result of an amendment to the information by interlineation, the reference to section 775.087, Florida Statutes, became mere surplusage and the inclusion of section 775.087 on the final judgment was likewise surplusage. The final judgment correctly classifies the offense at conviction as a first degree felony. See id. § 812.13(2)(b). It follows that the defendant was properly subjected to habitualization, and the rule inLamont v. State, 610 So.2d 435, 438 (Fla. 1992), has no application to this case.

The date of the crime was September 10, 1991.

The amendment deleted the charge that during the robbery, defendant committed an aggravated battery. Section 775.087(1), Florida Statutes (1991), enhances the level of felony where, among other things, defendant commits an aggravated battery during commission of the underlying crime.

Affirmed.


Summaries of

Chipp v. State

District Court of Appeal of Florida, Third District
Feb 25, 1998
708 So. 2d 607 (Fla. Dist. Ct. App. 1998)
Case details for

Chipp v. State

Case Details

Full title:ADOLPH JAMES CHIPP, Appellant, vs. THE STATE OF FLORIDA, Appellee

Court:District Court of Appeal of Florida, Third District

Date published: Feb 25, 1998

Citations

708 So. 2d 607 (Fla. Dist. Ct. App. 1998)

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