KOHR v. STATE (2009)

Gladys Kohr appeals her judgment of conviction and sentence for third degree felony criminal mischief.   Because Kohr was convicted of a crime not charged in her information, we reverse and remand.

Kohr was charged by information with three felony counts and one count of second degree misdemeanor criminal mischief (count III) in violation of section 806.13(1)(b)(1), Florida Statutes (2005).   Kohr pleaded guilty to all four counts;  however, the trial court mistakenly believed Kohr was charged with the greater offense of felony criminal mischief.   Kohr never contested this mistake and entered a guilty plea to the increased charge under count III. The trial court adjudicated her guilty and sentenced her to five years of probation on each count to run concurrently.

Since the trial court mistakenly thought Kohr was charged with a felony instead of a misdemeanor on count III, no effort was made to ensure Kohr knowingly entered a guilty plea to an offense greater than the one charged.   Therefore, the trial court erred in convicting Kohr of felony criminal mischief and sentencing Kohr to five years of probation for that count.   We note that the maximum probation period for count III, a second degree misdemeanor, is six months. § 948.15(1), Fla. Stat. (2005).  See also Moreno v. State, 675 So.2d 1026, 1027 (Fla. 3d DCA 1996).   We reverse and remand for the trial court to correct Kohr's judgment of conviction and sentence accordingly.

As to Kohr's remaining arguments, we affirm without discussion.

Reversed and Remanded.

STEVENSON, J.

POLEN and KLEIN, JJ., concur.