Michutka v. StateMichutka v. State
Michutka appeals the denial, without a hearing, of his Fla.R.Crim.P. 3.850 motion for post conviction relief. We reverse.
Michutka was convicted of one count of defrauding an innkeeper of more than $100 and one count of grand theft by use of a credit card, both third degree felonies.
An information which fails to allege the value of the goods obtained by fraud pursuant to § 509.151 charges a misdemeanor. Hinson v. State, 436 So.2d 437 (Fla. 4th DCA 1983). If the information charges a misdemeanor and the proof adduced at trial is that the value does in fact exceed $100 the defendant nevertheless may only be convicted of a misdemeanor. Tillman v. State, 329 So.2d 370 (Fla. 2d DCA 1976); Haley v. State, 315 So.2d 525 (Fla. 2d DCA 1975). In the instant case Michutka was charged only with a misdemeanor, although the proof at trial was that the value of the food and lodging in question was over $400. Because Michutka was not charged with a felony under § 509.151 he cannot be convicted of or sentenced for a felony regardless of the proof adduced at trial. It is fundamental error to convict a defendant of a crime with which he has not been charged. Tillman v. State. Therefore Michutka‘s first two grounds state valid claims for relief, and summary denial was improper.
Michutka‘s final ground for relief alleging ineffective assistance of counsel was also improperly denied. Although a claim of ineffective assistance of counsel can be raised on direct appeal, generally it is a collateral matter which should be raised by a motion for post-conviction relief. Stewart v. State, 420 So.2d 862 (Fla.), cert. denied, 460 U.S. 1103, 103 S.Ct. 1802, 76 L.Ed.2d 366, reh. denied, 462 U.S. 1124, 103 S.Ct. 3099, 77 L.Ed.2d 1357 (1982).
We reverse the denial of relief and remand with instructions that the circuit court correct the judgment and sentence to reflect a second degree misdemeanor conviction for the charge of defrauding an innkeeper. Michutka‘s claim of ineffective assistance of counsel was improperly denied and upon remand the court should conduct further proceedings in accordance with the provisions of
REVERSED and REMANDED.
BOOTH, C.J., and ERVIN, J., concur.
ON REHEARING
THOMPSON, Judge.
In its motion for rehearing the state, relying on State v. King, 426 So.2d 12 (Fla. 1983), argues that the legality of Michutka‘s conviction and sentence for grand theft by use of a credit card was not properly preserved for review because the defective information was never challenged below, and because the conviction and sentence was affirmed by this court upon direct appeal in Michutka v. State, 478 So.2d 868 (Fla. 1st DCA 1985). As we stated in our opinion, Michutka‘s conviction and sentence for an offense with which he was never charged is fundamental error. Haley v. State, 315 So.2d 525, 527 (Fla. 2d DCA 1975). Accordingly, the legality of the conviction can be properly considered pursuant to Michutka‘s
The motion for rehearing is denied.
BOOTH, C.J., and ERVIN, J., concur.