5D09-2946 Joseph Diaz v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D09-2946

Case Date: 08/30/2010

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2010

JOSEPH DIAZ, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed September 3, 2010 Appeal from the Circuit Court for Osceola County, Scott Polodna, Judge. James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant. Bill McCollum, Attorney General, Tallahassee and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellee. Case No. 5D09-2946

PER CURIAM. We find no reversible error in this Anders1 appeal. There is, however, a minor error relating to the classification of the Defendant's conviction which was referenced in the Anders brief filed on appeal.2 After a full and independent review of the record, we affirm the Defendant's conviction and sentence but remand to the trial court to correct the Defendant's judgment of conviction to reflect that the Defendant's conviction for
1

Anders v. California, 386 U.S. 738 (1967).

This issue was raised in a Florida Rule of Criminal Procedure 3.800(b) motion. However, the trial court did not timely rule on this motion and it is deemed denied.

2

burglary of a dwelling with an assault or battery (with a firearm) is a first-degree felony punishable by life rather than a life felony. The jury specifically found that the

Defendant did not personally possess, carry, display, use or threaten to use a firearm at the time he committed the felony. Therefore, the degree of the crime could not be reclassified as a life felony. This correction does not affect the validity of the conviction or the sentence imposed. Remand for correction; otherwise AFFIRMED.

MONACO, C.J., GRIFFIN and TORPY, JJ., concur.

2

Download 5D09-2946 Joseph Diaz v. State.pdf