Davidson v. State

Appellant Davidson was charged with armed burglary of a dwelling. At trial, however, the judge instructed the jury only on burglary of a structure. The jury returned a verdict stating “the defendant is guilty of burglary.” At sentencing the judge utilized a scoresheet that listed burglary of a structure as a second degree felony. The judgment entered also reflects burglary of a structure as a second degree felony. Section 810.02(3), Florida Statutes, classifies burglary of a structure as a third degree felony, unless the structure is occupied or is a dwelling. Thus, the judgment must be…