GUSTAV PETER FINKEL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Court reversed judgment reflecting grand theft conviction where jury found only petit theft, and remanded for correction of judgment and resentencing to comply with statutory maximum for misdemeanor.
A judgment must reflect the jury's actual verdict, and a sentence imposed for a lesser-included offense cannot exceed the statutory maximum for that offense.
[1] A trial court judgment must be corrected to reflect the jury's actual verdict when the written judgment does not match the verdict rendered.
[2] A sentence imposed for a lesser-included misdemeanor offense cannot exceed the statutory maximum penalty for that offense.
Previewing 2 of 2 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligenceFinkel was charged with burglary of a dwelling and grand theft exceeding $100,000. The jury found him guilty of burglary but only petit theft, a secon…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Maximum Sentence cases and more on FLexlaw
Gustav Peter Finkel assigns error to his judgment and sentence for grand theft. Finkel was charged with the crimes of burglary of a dwelling (Count I) and grand theft of property and currency in excess of $100,000.00 (Count II). After a jury trial, Finkel was found guilty of Count I, as charged, and petit theft, a lesser-included offense of the grand theft as charged in Count II. For reasons not entirely clear from the record, the judgment reflects that Finkel was found guilty of grand theft as to Count II. Moreover, the sentencing order imposed a sentence of 27.75 months imprisonment for each count, with each sentence to run concurrent with the other. Finkel argues that the judgment adjudicating him guilty of grand theft is fundamentally erroneous because the jury found him guilty of the petit theft, a second degree misdemeanor. See Miller v. State, 764 So.2d 640, 645 (Fla. 1st DCA 2000). Moreover, the concurrent sentence of 27.75 months appended to what should have been the second degree misdemeanor count exceeds the maximum sentence of 60 days incarceration. See § 812.014(3)(a), Fla. Stat. (2009); § 775.082(4)(b), Fla. Stat. (2009). Therefore, the sentence is illegal. Rightfully so, the State concedes error.
Accordingly, we remand with directions to the trial court to correct the written *829judgment, so that it reflects the jury’s verdict on Count II, finding Finkel guilty of petit theft. On remand, the trial court shall resentence Finkel on Count II to a sentence not to exceed the maximum permitted by law.
Affirmed and Remanded to Correct Judgment and Sentence.
POLEN and GERBER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Slanker v. State (Fla. 5th DCA 2021)…to counts four through six to accurately reflect the jury’s verdict on those counts, finding Slanker guilty as charged of sexual battery on a child between twelve and eighteen years of age, in violation of section 794.011(8)(b). See Finkel v. State, 52 So. 3d 828, 828–29 (Fla. 4th DCA 2011); Miller v. State, 764 So. 2d 640, 645 (Fla. 1st DCA 2000). In addition, the actual written sentences imposed as to counts four through six differ from the sentences orally imposed for those counts. At the sentencing hear…
Authorities Cited
- Miller v. State, 764 So. 2d 640 (Fla. 1st DCA 2000)