Fuller v. State

672 So. 2d 55, 1996 Fla. App. LEXIS 3048, 1996 WL 135494

Opinion

PER CURIAM.

Appellant, Samuel Louis Fuller (the “defendant”), appeals his conviction for second-degree felony burglary of a dwelling, his sentence of seven years, and the trial court’s order revoking his probation. We agree with the defendant that based upon his plea to a third-degree burglary charge, the entry of judgment for second-degree burglary was obviously error. Accordingly, the written judgment must be corrected nunc pro tunc to reflect that the defendant was convicted of third-degree burglary of a structure. See Healey v. State, 464 So.2d 213 (Fla. 3d DCA 1985); McKie v. State, 314 So.2d 201 (Fla. 1st DCA 1975), cert, denied, 328 So.2d 842 (Fla.1976). As a result of this error, the defendant’s sentence must also be reduced so that it is within the statutory maximum of five years. See Sumpter v. State, 531 So.2d 1055 (Fla. 3d DCA 1988); Smith v. State, 491 So.2d 1276 (Fla. 2d DCA 1986).

In all other respects, the judgment below and the trial court’s finding that the defendant willfully violated his probation are affirmed.

Affirmed in part; reversed in part and remanded with directions.