C.Y. v. State

• Court: District Court of Appeal of Florida
• Decided: January 23, 2019
• Docket: 18-1364
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed January 23, 2019. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D18-1364 Lower Tribunal No. 18-138B ________________

C.Y., a juvenile, Appellant,

vs.

The State of Florida, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, William Johnson, Senior Judge.

Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for appellant.

Ashley Brooke Moody, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for appellee.

Before SCALES, and LINDSEY, JJ., and LUCK, Associate Judge.

PER CURIAM. C.Y., a juvenile, appeals from the trial court’s adjudicatory order, which found

him delinquent of battery and of the lesser-included offense of misdemeanor assault.

The order lists the assault count as a first-degree misdemeanor. C.Y. argues that the

order is incorrect because assault is a second degree misdemeanor. The State agrees.

See § 784.011(2), Fla. Stat. (2018) (“Whoever commits an assault shall be guilty of

a misdemeanor of the second degree . . . .”). Because simple assault is a second-

degree misdemeanor and not a first-degree misdemeanor, we affirm but remand for

correction of the adjudicatory order. See Malone v. State, 225 So. 3d 335 (Fla. 3d

DCA 2017) (affirming but remanding solely to correct the degree of the offense);

Carrillo v. State, 865 So. 2d 528 (Fla. 3d DCA 2003) (same).

Affirmed with instructions.