Spencer v. State

780 So. 2d 321, 2001 Fla. App. LEXIS 4117, 2001 WL 277045

Opinion

BROWNING, J.

A jury found Demetrice Conelle Spencer, the appellant, guilty of one count of carjacking without a weapon, a violation of section 812.133(2)(b), Florida Statutes (1997); and two counts of kidnapping without a weapon, a violation of section 787.01(l)(a)l, Florida Statutes (1997). The trial court orally adjudicated the appellant guilty in accordance with the jury verdict and imposed concurrent sentences of 35 years in prison. However, the written judgment erroneously lists the carjacking statute subsection as 812.133(2)(a), Florida Statutes 1, and the kidnapping statute subsection as 787.01(l)(l)(a), Florida Statutes. The statutory maximum sentence for a felony of the first degree is 30 years. See § 775.082(3)(b), Florida Statutes (1997). The appellant notes, and the State concedes, that the scrivener’s error on the written judgment is prejudicial, and that the 35 year prison sentence for carjacking without a weapon improperly exceeds the 30 year statutory maximum.

Accordingly, we AFFIRM the convictions and REMAND with directions to the trial court to correct the judgment to reflect carjacking without a weapon pursuant to section 812.133(2)(b), Florida Statutes; and kidnapping without a weapon pursuant to section 787.01(l)(a)l., Florida Statutes; and to RESENTENCE the appellant on the carjacking conviction to no more than 30 years. The sentences for kidnapping without a weapon are AFFIRMED. See § 787.01(2), Fla. Stat.

BARFIELD, C.J., and ALLEN, J„ concur.

Footnotes

1

. Subsection (2)(a) criminalizes carjacking with a firearm or weapon, with which the State originally charged the appellant. The offense in subsection (2)(a) is a Level 9 offense under section 921.0022(3), Florida Statutes, and "a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084 .” In contrast, subsection (2)(b) is a Level 7 offense under section 921.0022(3), Florida Statutes, and “a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or 775.084 .”