Summary
holding that claim for resentencing based on corrected scoresheet was without merit "as the new score remains in the same bracket and is essentially de minimis"
Summary of this case from Labovick v. StateOpinion
No. 98-3609.
Opinion filed August 18, 1999.
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Edward A. Garrison, Judge; L.T. No. 98-2359 CFA02.
Roland Anthony Ulloa and F.C. Hutchinson, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Elaine L. Thompson, Assistant Attorney General, West Palm Beach, for appellee.
We affirm appellant's conviction for two counts of driving under the influence ("D.U.I.") with serious bodily injury and two counts of D.U.I. with injury to property or person. See Melbourne v. State, 679 So.2d 759, 765 (Fla. 1996) (a defendant's right against double jeopardy is not violated where he is charged and convicted of multiple counts of D.U.I. with injury or property damage arising out of a single episode).
We reverse, however, appellant's conviction for one count of misdemeanor D.U.I. In Deviney v. State, 579 So.2d 373, 373 (Fla. 4th DCA 1991), the court held that a conviction for driving under the influence must be reversed where the defendant was also convicted of D.U.I. with serious bodily injury arising out of the same incident. A charge of misdemeanor driving under the influence "is a lesser included offense of driving under the influence with an accident," which would allow a defendant to be sentenced twice for the same offense. Id.; see also Collins v. State, 578 So.2d 30, 32 (Fla. 4th DCA 1991), receded from on other grounds by Jackson v. State, 634 So.2d 1103 (Fla. 4th DCA 1994).
The appellant's claim for re-sentencing based upon the corrected scoresheet is without merit, as the new score remains in the same bracket and is essentially de minimis. See Sanders v. State, 621 So.2d 723, 728 (Fla. 5th DCA 1993).
Affirmed in part; reversed in part.
SHAHOOD and TAYLOR, JJ., concur.