Smith v. State

324 So. 2d 699 (1976)

Forrest Eugene SMITH, Appellant,
v.
STATE of Florida, Appellee.

No. Y-500.

District Court of Appeal of Florida, First District.

January 6, 1976.

Richard W. Ervin, III, Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.

PER CURIAM.

Appellant's sole point on appeal is:

"The lower court erred in accepting Appellant's plea of guilty and adjudging him guilty and sentencing him for the offense of grand larceny on the ground that Appellant could not be adjudged guilty and sentenced for such offense without being legally charged with the commission of the offense of grand larceny."

Appellee State, in its brief, answers as follows:

"This question is answered in the affirmative. Appellee agrees with the argument set forth in appellant's very excellent and well-reasoned brief. Appellant was not charged with the offense of grand larceny and neither was he charged with a crime of which grand larceny is a lesser included offense. No separate information was filed against appellant nor even an amended information was filed charging him with the offense of grand larceny. And as the saying goes, the allegata does not meet the probata. It comes down to this: Appellant was adjudicated guilty of and sentenced for an offense for which he was not charged. This is an absolute denial of due process. Thornhill v. Alabama, 310 U.S. 88 [60 S. Ct. 736], 84 L. Ed. 1093 (1940)."

The judgment of conviction is reversed.

Reversed.

RAWLS, Acting C.J., and MILLS and SMITH, JJ., concur.