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Roberson v. State

District Court of Appeal of Florida, Fourth District
May 2, 1978
358 So. 2d 97 (Fla. Dist. Ct. App. 1978)

Opinion

No. 77-639.

May 2, 1978.

Appeal from the Circuit Court, Broward County, Louis Weissing, J.

Richard L. Jorandby, Public Defender, and Allen J. De Weese, Asst. Public Defender, West Palm Beach, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.


This appeal stems from a hearing at which the defendant's probation was revoked, the judge correctly stating that he was adjudging the defendant guilty of breaking and entering with intent to commit a misdemeanor as per the original charge to which he had pled nolo contendere. However, we assume, through error, the ensuing written Judgment and Sentence revoked his probation and adjudged him guilty of breaking and entering with intent to commit a felony. This was error.

It has been established that "one cannot plead guilty to one offense and be adjudged guilty and sentenced to another" Perkins v. Mayo, 92 So.2d 641, 643 (Fla. 1957).

We point to the following colloquy at the probation hearing:

THE CLERK: Adjudication has been withheld until now.

THE COURT: All right. Ralph, I am going to find you guilty of violation of the terms and conditions of your probation, revoke your probation, adjudge you to be guilty of breaking and entering a dwelling house with intent to commit a felony. Is that what he pled guilty to?

MR. SMITH [State's Attorney]: Misdemeanor.

THE CLERK: To commit a misdemeanor, petty larceny.

THE COURT: With intent to commit a misdemeanor, to-wit: Petty larceny.

Do you have anything to say why sentence should not be imposed?

There can be no doubt from the above that a disparity exists between this record and the subsequent judgment. Accordingly, under the authority of Walt v. State, 323 So.2d 621 (Fla. 1st DCA 1975) we remand this case for the entry of a proper judgment. We agree with the Second District that courts are authorized to correct clerical errors within, or beyond the term. Boggs v. Wainwright, 223 So.2d 316 (Fla. 1969). Such error does not require reversal.

REMANDED IN ACCORDANCE HEREWITH.

DOWNEY, C.J., and ANSTEAD, J., concur.


Summaries of

Roberson v. State

District Court of Appeal of Florida, Fourth District
May 2, 1978
358 So. 2d 97 (Fla. Dist. Ct. App. 1978)
Case details for

Roberson v. State

Case Details

Full title:RALPH ROBERSON, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Fourth District

Date published: May 2, 1978

Citations

358 So. 2d 97 (Fla. Dist. Ct. App. 1978)

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