Opinion
No. 76-432.
February 28, 1978.
Appeal from the Circuit Court for Brevard County; Robert B. McGregor, Judge.
Richard L. Jorandby, Public Defender, and Frank B. Kessler, Asst. Public Defender, West Palm Beach, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
Upon a review of the evidence, we find it conflicting but sufficient to justify the verdict and support the judgment of conviction of murder in the second degree.
However, we must vacate the sentence and remand for resentencing in order for the appellant to be given credit for time served in jail from arrest to sentencing. Sutton v. State, 334 So.2d 628 (Fla. 4th DCA 1976). The judgment is also defective because it orders confinement at hard labor. McDonald v. State, 321 So.2d 453 (Fla. 4th DCA 1975). Finally, the judgment recites the Appellant was convicted after entering his plea of guilty which is not true. He was tried by a jury and found guilty of second degree murder after having been charged with first degree murder. The use of a "form judgment" when not in the proper form was part of the cause of this error.
The judgment is affirmed and the sentence is vacated. The matter is remanded for resentencing in a proper manner not inconsistent herewith.
Sentence is vacated and remanded.
CROSS and DOWNEY, JJ., concur.
Denying certiorari, Fla., 359 So.2d 1214.