ROSEN v. STATE (2019)

District Court of Appeal of Florida, Fifth District.

David Alexander Clarke ROSEN, Appellant, v. STATE of Florida, Appellee.

Case No. 5D18-2974

Decided: May 31, 2019

James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant. Ashley Moody, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.

David Alexander Clarke Rosen challenges his judgment and sentence for burglary of a dwelling with an assault or battery. We affirm in all respects except for the written judgment, which we remand for correction of a scrivener's error. The judgment and order of revocation cites to section 810.02(4), Florida Statutes (2018). That subsection covers burglary as a third-degree felony, wherein the perpetrator enters an unoccupied structure or conveyance, does not become armed, and does not commit any assault or battery. The crime underlying the community control and probation proceedings in the instant case is burglary as a first-degree felony punishable by life, because Rosen entered a dwelling and battered the occupant. Accordingly, we remand with directions that this scrivener's error be corrected so that the judgment accurately reflects section 810.02(2)(a) as the underlying offense. Thomas v. State, 174 So. 3d 599, 600 (Fla. 5th DCA 2015) (case remanded to correct judgment containing a scrivener's error).

AFFIRMED; remanded to correct scrivener's error

HARRIS, J.

LAMBERT and EDWARDS, JJ., concur.

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