Brown v. State

960 So. 2d 905 (2007)

Erica Bonita BROWN, Appellant,
v.
STATE of Florida, Appellee.

No. 2D04-3574.

District Court of Appeal of Florida, Second District.

July 20, 2007.

Antonio R. Arnao of Law Office of Antonio R. Arnao, St. Petersburg, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.

SALCINES, Judge.

Appellate counsel for Erica Brown has filed an Anders^[1] brief with this court. One of the possible issues raised by counsel was whether the trial court committed fundamental error by adjudicating Brown guilty of both second-degree murder and home invasion robbery. It is clear from the record that Brown entered a plea of nolo contendere only to the charge of second-degree murder. The judgment includes an adjudication for an offense to which she did not plead. This was fundamental reversible error to which no objection was required. See Cole v. State, 924 So. 2d 962, 963 (Fla. 4th DCA 2006).^[2]

Accordingly, we reverse the adjudication for home invasion robbery and remand for the trial court to enter an amended judgment in accordance with the dictates of this opinion. The adjudication and sentence for second-degree murder is affirmed.

Affirmed in part, reversed in part, and remanded.

DAVIS and LaROSE, JJ., Concur.

NOTES

[1] Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).

[2] If this had been only a sentencing error, the issue would not have been preserved. See Nunez v. State, 912 So. 2d 693, 693 (Fla. 2d DCA 2005) (holding unpreserved sentencing error, even if fundamental error, must be preserved through a timely filed Florida Rule of Criminal Procedure 3.800(b) motion).