C.Y. v. State, 263 So. 3d 239 (2019)

Jan. 23, 2019 · District Court of Appeal of Florida, Third District · No. 3D18-1364

263 So. 3d 239

C.Y., a Juvenile, Appellant,
v.
The STATE of Florida, Appellee.

No. 3D18-1364

District Court of Appeal of Florida, Third District.

Opinion filed January 23, 2019

Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for appellant.

Ashley Brooke Moody, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for appellee.

Before SCALES, and LINDSEY, JJ., and LUCK, Associate Judge.

PER CURIAM.

C.Y., a juvenile, appeals from the trial court's adjudicatory order, which found him delinquent of battery and of the lesser-included offense of misdemeanor assault. The order lists the assault count as a first-degree misdemeanor. C.Y. argues that the order is incorrect because assault is a second degree misdemeanor. The State agrees. See § 784.011(2), Fla. Stat. (2018) ("Whoever commits an assault shall be guilty of a misdemeanor of the second degree ...."). Because simple assault is a second-degree misdemeanor and not a first-degree misdemeanor, we affirm but remand for correction of the adjudicatory order. See Malone v. State, 225 So.3d 335 (Fla. 3d DCA 2017) (affirming but remanding solely to correct the degree of the offense); Carrillo v. State, 865 So.2d 528 (Fla. 3d DCA 2003) (same).

Affirmed with instructions.