Marshall McCraney v. State

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
MARSHALL McCRANEY,
Appellant,
v. Case No. 5D15-2148
STATE OF FLORIDA,
Appellee.
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Opinion filed January 6, 2017
Appeal from the Circuit Court
for Volusia County,
Frank Marriott, Judge.
James S. Purdy, Public Defender, and
Jacqueline Rae Luker, Assistant Public
Defender, Daytona Beach, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Lori N. Hagan, Assistant
Attorney General, Daytona Beach, for
Appellee.
PER CURIAM.
Marshall McCraney ("Appellant") appeals the postconviction court's denial of his
Florida Rule of Criminal Procedure 3.800(b) motion to correct an illegal sentence. The
State charged Appellant with multiple counts in four separate cases that were
consolidated for plea and sentencing, including one count of criminal mischief. However,
the plea form did not include the criminal mischief count, and the trial court did not discuss
that count during the plea colloquy. Although Appellant did not raise this issue below, the
State properly concedes that a judgment adjudicating a defendant guilty of an offense to
which he or she did not plead constitutes fundamental error. See, e.g., Brown v. State,
960 So. 2d 905, 905-06 (Fla. 2d DCA 2007). Accordingly, we reverse and remand for the
trial court to vacate Appellant's conviction and sentence for criminal mischief. We affirm
in all other respects.
AFFIRMED in part; REVERSED in part; REMANDED with Instructions.
PALMER, EVANDER and WALLIS, JJ., concur.
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