O'Donnell v. State , 2015 Fla. App. LEXIS 18931 ( 2015 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
THOMAS JAMES O'DONNELL, )
)
Appellant, )
)
v. ) Case No. 2D14-5147
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed December 18, 2015.
Appeal from the Circuit Court for Pinellas
County; Philip J. Federico, Judge.
Howard L. Dimmig, II, Public Defender, and
Pamela H. Izakowitz, Assistant Public
Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Donna S. Koch, Assistant
Attorney General, Tampa, for Appellee.
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.
-2-