Brown v. State

226 So. 2d 870, 1969 Fla. App. LEXIS 5385

Opinion

PER CURIAM.

The appellant was informed against by a two-count information. Count I alleged breaking and entering of a dwelling house and assault on persons lawfully therein. Count II alleged a lewd and lascivious or indecent assault upon male minors under the age of fourteen years. The appellant was found guilty as to the first count on the lesser included offense of entering without breaking, and guilty of Count II although the evidence indicated the assault was singular rather than plural. However, the written judgment indicated a conviction on both counts as alleged.

We affirm the convictions as orally stated by the court upon, the following authorities: Peters v. State, Fla.1954, 76 So.2d 147; Hall v. State, Fla.App.1967, 203 So.2d 202; Dobry v. State, Fla.App.1968, 211 So.2d 603; State v. Wright, Fla.1969, 224 So.2d 300; People v. Keene, 391 Ill. 305, 63 N.E.2d 509; State v. Boone, Mo.1926, 289 S.W. 575; State v. Culbertson, Mo.App.1934, 74 S.W.2d 375; 17 Fla.Jur., Indictments and Informations, § 96; 42 C.J.S. Indictments and Informations §§ 168a, 264. However, we return the matter to the trial court with directions to enter a correct written judgment in accordance with the oral pronouncement at the conclusion of the trial as to Count I. See: Hart v. State, Fla.1952, 60 So.2d 489; Matera v. State, Fla.App.1969, 218 So.2d 180. We also vacate the sentence as to Count I in the event the trial judge should desire to reconsider this matter. It is, however, noted that the sentence imposed was not beyond the limits set in § 810.03, Fla.Stat., F.S.A.

Affirmed as modified, with directions.