         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                NOT FINAL UNTIL TIME EXPIRES TO
                                                FILE MOTION FOR REHEARING AND
                                                DISPOSITION THEREOF IF FILED


MARSHALL McCRANEY,

             Appellant,

 v.                                                          Case No. 5D15-2148

STATE OF FLORIDA,

             Appellee.

________________________________/

Opinion filed January 6, 2017

Appeal from the Circuit Court
for Volusia County,
Frank Marriott, Judge.

James S. Purdy, Public Defender, and
Jacqueline Rae Luker, Assistant Public
Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Lori N. Hagan, Assistant
Attorney General, Daytona Beach, for
Appellee.


PER CURIAM.

      Marshall McCraney ("Appellant") appeals the postconviction court's denial of his

Florida Rule of Criminal Procedure 3.800(b) motion to correct an illegal sentence. The

State charged Appellant with multiple counts in four separate cases that were

consolidated for plea and sentencing, including one count of criminal mischief. However,
the plea form did not include the criminal mischief count, and the trial court did not discuss

that count during the plea colloquy. Although Appellant did not raise this issue below, the

State properly concedes that a judgment adjudicating a defendant guilty of an offense to

which he or she did not plead constitutes fundamental error. See, e.g., Brown v. State,

960 So. 2d 905, 905-06 (Fla. 2d DCA 2007). Accordingly, we reverse and remand for the

trial court to vacate Appellant's conviction and sentence for criminal mischief. We affirm

in all other respects.


       AFFIRMED in part; REVERSED in part; REMANDED with Instructions.


PALMER, EVANDER and WALLIS, JJ., concur.




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