Cole v. State

924 So. 2d 962, 2006 WL 862803

Opinion

924 So.2d 962 (2006)

Tony COLE, Appellant,
v.
STATE of Florida, Appellee.

No. 4D04-4095.

District Court of Appeal of Florida, Fourth District.

April 5, 2006.

Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Appellant, Tony Cole, appeals his convictions for driving while license revoked (Count I) and driving without a valid driver's license (Count II). We affirm his conviction and sentence on Count I. However, we reverse his conviction and sentence on Count II because a review of the record reveals that Cole never entered a plea to that count.

The record reveals that Cole entered a plea to Count I only. However, the trial court adjudicated him guilty as to both Counts I and II. Although Cole did not object at the sentencing hearing to the adjudication and sentence imposed for Count II, we conclude that adjudicating Cole guilty on a count to which he did not enter a plea constitutes fundamental error. See Johnson v. State, 710 So.2d 715, 716 (Fla. 1st DCA 1998) (holding that adjudication of guilt as to greater offense, when defendant entered a plea of no contest to a lesser included offense only, constituted fundamental error).

We therefore reverse Cole's conviction and sentence on Count II. His conviction and sentence on Count I is affirmed.

Affirmed in Part, Reversed in Part.

GUNTHER, POLEN and MAY, JJ., concur.