Elbert B. Sipp v. State

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED ELBERT BERNARD SIPP,

Appellant,

v. Case No. 5D14-184

STATE OF FLORIDA,

Appellee.

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Opinion filed July 11, 2012

Appeal from the Circuit Court for Volusia County, Frank Marriott, Judge.

James S. Purdy, Public Defender, and Robert J. Pearce III and George D.E. Burden, Assistant Public Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

Elbert Bernard Sipp (defendant), appeals the trial court's orders adjudicating him

guilty of violating his community control (VOCC) and sentencing him to a term of

imprisonment. Finding no reversible error, we affirm the adjudication and sentencing

order. However, the adjudication order contains two scrivener's errors that must be

corrected. First, the adjudication order reads that the defendant admitted to violating his

community control when in fact the court found, after a VOCC hearing, that he had

violated his community control. Therefore, the portion of the order which states that the

defendant “admits violation” must be deleted.

Second, after the defendant was found to have violated his community control, his

community control was revoked and he was ordered to serve the suspended portion of

his sentence, which was 41.15 months in prison. The adjudication order classifies his

conviction for attempted burglary of an unoccupied dwelling as a second-degree felony,

but attempted burglary of an unoccupied dwelling is a third-degree felony. See §

810.02(3)(b), Fla. Stat., 777.04(4)(d), Fla. Stat. Therefore, the order must be corrected to

reflect his conviction for a third-degree felony.

AFFIRMED; REMANDED with instructions.

TORPY, C.J., PALMER and COHEN, JJ., concur.