Opinion
No. 73-786.
March 8, 1974.
Appeal from the Circuit Court, Sarasota County, Edwin W. Cummer, J.
James A. Gardner, Public Defender, and Charles H. Livingston, Asst. Public Defender, Sarasota, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Guy E. Labalme, Asst. Atty. Gen., Tampa, for appellee.
Appellant was charged by information with the crime of assault with intent to commit murder in the first degree. His plea of nolo contendere to the lesser included offense of aggravated assault was accepted by the trial judge, and a pre-sentence investigation was ordered. He admitted that he had served time in the state penitentiary for first degree murder and robbery.
Subsequently he appeared before an acting circuit judge for sentencing, was adjudged guilty of aggravated assault and sentenced to a term of ten years in the Division of Corrections.
Aggravated assault is a felony of the third degree, F.S. § 784.04 F.S.A., and is ordinarily punishable by a maximum of five years, F.S. § 775.082 F.S.A. Appellant was obviously sentenced as a recidivist.
No separate information was filed setting forth the prior convictions and no proceedings were had in accordance with the provisions of F.S. § 775.11 and § 775.084 F.S.A.
The judgment appealed is affirmed, but the sentence is hereby vacated and the cause remanded for proper sentencing, without prejudice to the state's right to subsequently proceed pursuant to the provisions of F.S. § 775.11 F.S.A. as it may be advised. Wright v. State, Fla.App., 291 So.2d 118, opinion filed March 1, 1974.
Remanded with directions.
MANN, C.J., and GRIMES, J., concur.