O'Donnell v. State

District Court of Appeal of Florida

O'Donnell v. State

184 So. 3d 1184, 2015 Fla. App. LEXIS 18931, 2015 WL 9264143

CourtDistrict Court of Appeal of Florida

DecidedDecember 18, 2015

Docket2D14-5147

StatusPublished

This text of 184 So. 3d 1184 (O'Donnell v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

O'Donnell v. State, 184 So. 3d 1184, 2015 Fla. App. LEXIS 18931, 2015 WL 9264143 (Fla. Ct. App. 2015).

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Opinion

PER CURIAM.

Thomas James O’Donnell appeals his judgments and sentences for burglary and criminal mischief. We affirm in all respects except for the judgment for criminal mischief, which we reverse and remand for the correction of a scrivener’s error. Although charged with criminal mischief as a third-degree felony, Mr. O’Donnell was convicted of this offense as a second-degree misdemeanor. He was properly sentenced, but his judgment reflects that the offense is a third-degree felony. This scrivener’s error shall be corrected on remand.

We note that counsel for Mr. O’Donnell filed a motion to mitigate sentence just before filing the notice of appeal. The trial court exercised its discretion to dismiss this motion, which it was authorized to do. See Mowatt v. State, 963 So.2d 348 (Fla. 4th DCA 2007). The dismissal of this motion does not prevent the refiling of the motion in the sixty-day period following the issuance of mandate in this court. See Fla. R. Crim. P. 3.800(c).

Affirmed in part, reversed in part, and remanded.

ALTENBERND, SILBERMAN, and SALARIO, JJ., Concur.

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PER CURIAM.

Thomas James O’Donnell appeals his judgments and sentences for burglary and criminal mischief. We affirm in all respects except for the judgment for criminal mischief, which we reverse and remand for the correction of a scrivener’s error. Although charged with criminal mischief as a third-degree felony, Mr. O’Donnell was convicted of this offense as a second-degree misdemeanor. He was properly sentenced, but his judgment reflects that the offense is a third-degree felony. This scrivener’s error shall be corrected on remand.

We note that counsel for Mr. O’Donnell filed a motion to mitigate sentence just before filing the notice of appeal. The trial court exercised its discretion to dismiss this motion, which it was authorized to do. See Mowatt v. State, 963 So.2d 348 (Fla. 4th DCA 2007). The dismissal of this motion does not prevent the refiling of the motion in the sixty-day period following the issuance of mandate in this court. See Fla. R. Crim. P. 3.800(c).

Affirmed in part, reversed in part, and remanded.

ALTENBERND, SILBERMAN, and SALARIO, JJ., Concur.

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Bluebook (online)

184 So. 3d 1184, 2015 Fla. App. LEXIS 18931, 2015 WL 9264143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/odonnell-v-state-fladistctapp-2015.

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