MICHAEL PHILLIP FUSCO vs STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: April 8, 2022
• Docket: 21-2222
• Status: Published

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

MICHAEL PHILLIP FUSCO,

Appellant,

v. Case No. 5D21-2222 LT Case No. 2019-CF-001530-A

STATE OF FLORIDA,

Appellee.

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Opinion filed April 8, 2022

Appeal from the Circuit Court for Hernando County, Stephen E. Toner, Jr., Judge.

Matthew J. Metz, Public Defender, and Ali L. Hansen, Assistant Public Defender, Daytona Beach, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM. In this Anders 1 appeal, Michael Phillip Fusco seeks review of his

judgment and sentence on the charge of sexual battery under section

794.011(5)(b), Florida Statutes (2019). We affirm in all respects but remand

to the trial court for correction of a clerical error in one of the sentencing

orders.

During the pendency of this appeal, Fusco moved to correct parts of

three sentencing orders pursuant to Florida Rule of Criminal Procedure

3.800(b)(2). Specifically, Fusco requested that the trial court correct the

reference to the improper statute in the sentencing order finding him a sexual

offender, as it mistakenly implicated sexual predator status. He also asked

the trial court to strike an array of unauthorized, unpronounced monetary

assessments as well as unpronounced special conditions in the orders for

costs and sex offender probation.

The trial court granted Fusco’s motion and directed the clerk of court

and office of probation to prepare amended costs and probation orders. The

trial court also stated that it would prepare an amended order finding Fusco

a sexual offender under the proper statute. Accordingly, amended orders for

costs and probation were entered, but it does not appear the trial court

entered an amended order finding Fusco a sexual offender. Therefore, we

1 See Anders v. California, 386 U.S. 738 (1967).

2 affirm Fusco’s judgment and sentence but remand with instructions to amend

the order finding Fusco a sexual offender to reflect the proper statute—

section 943.0435, Florida Statutes (2019).

AFFIRMED AND REMANDED.

COHEN, WALLIS and EDWARDS, JJ., concur.