Deviney v. State

579 So. 2d 373, 1991 Fla. App. LEXIS 4618, 1991 WL 76516

Opinion

PER CURIAM.

The sole issue on appeal is whether the charge of misdemeanor driving under the influence (§ 316.193(1), Florida Statutes), in one count of an amended information, is a lesser included offense of driving under the influence with an accident (§ 316.193(3)(a), Florida Statutes) in a separate count arising out of the same arrest. We conclude that it is and that appellant has been sentenced twice for the same offense. Cf. Satterfield v. State, 553 So.2d 793 (Fla. 1st DCA 1989). We do not address any question of whether the result in this case might have been different had the state not amended the initial charge in count I and had the state and court not agreed that the issue was preserved for appeal. Therefore, the judgment and sentence are reversed as to count I. Upon remand, an amended judgment and sentence shall be entered as to count II.

DOWNEY, STONE and POLEN, JJ., concur.