Napier v. State

Appellant, defendant below, was charged by information with burglary of a dwelling and grand theft. After a jury trial of both appellant and a codefendant, appellant was found guilty of trespass as a lesser included offense of burglary, and grand theft as charged. The trial court then sentenced appellant to 30 months in state prison for the grand theft conviction, and a concurrent one-year term in county jail on the trespass conviction.

Appellant’s counsel has filed an Anders1 brief with this court, stating that he is unable to make a good faith argument that error occurred in the trial court and, therefore, cannot present an argument in support of the allegations contained in the Statement of Judicial Acts to be Reviewed. We agree that no error occurred below with regard to appellant’s conviction. As to appellant’s one-year sentence for trespass, however, we must remand for correction by the lower court. Although trespassing under section 810.08(2)(b) is a first-degree misdemeanor punishable by imprisonment not to exceed one year, the judgment in this case indicates appellant was found guilty of trespassing under section 810.08(2)(a). That subsection is a second-degree misdemeanor, punishable by imprisonment not to exceed 60 days. Section 775.082(4)(b). Therefore, appellant’s concurrent one-year sentence for trespassing is remanded for correction by the trial court and the judgment is AFFIRMED.