Miller v. State

339 So. 2d 1129

Opinion

339 So.2d 1129 (1976)

Franklin D. MILLER, Appellant,
v.
STATE of Florida, Appellee.

No. 76-763.

District Court of Appeal of Florida, Second District.

November 19, 1976.

Jack O. Johnson, Public Defender, and Jon J. Hall, Asst. Public Defender, Bartow, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

Appellant was charged by a two-count information with (1) manslaughter while intoxicated in violation of Section 860.01, Florida Statutes, and (2) manslaughter by culpable negligence in violation of Section 782.07, Florida Statutes. He was tried by a jury which found him guilty as charged on both counts. The trial court adjudicated him guilty on both counts and sentenced him for a term of:

"... ten (10) years as to Count One: one (1) year as to Count Two. 195 days credit to be given for time served from date of arrest to sentencing. Sentences as to both counts to run concurrently."

We hold that the separate counts in the information charged only a single offense by different acts for which there can be only one sentence. Accordingly, the words in the sentence:

"... one (1) year as to Count Two. Sentences as to both counts to run concurrently."

are hereby vacated as surplusage. The remainder of the sentence is affirmed. Dawson v. State, 266 So.2d 116 (Fla. 1st DCA 1972); Stewart v. State, 184 So.2d 489 (Fla. 4th DCA 1966).

HOBSON, Acting C.J., and BOARDMAN and SCHEB, JJ., concur.