Ward v. State , 446 So. 2d 267 ( 1984 )

446 So. 2d 267 (1984)

James Lee WARD, Appellant,
v.
STATE of Florida, Appellee.

No. 83-1662.

District Court of Appeal of Florida, Second District.

March 9, 1984.

Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.

SCHEB, Judge.

The state charged defendant James Lee Ward with forgery, uttering a forged instrument, and grand theft. A jury convicted him of attempted forgery, attempted uttering, and grand theft. The trial court sentenced him to concurrent terms of one year imprisonment for attempted forgery, one year for attempted uttering, and five years for grand theft. Ward challenges his convictions and sentences on all counts.

Ward argues that attempted uttering is not an offense under Florida law. He is correct. King v. State, 339 So. 2d 172 (Fla. 1976). Imposition of judgment and sentence for attempted uttering is fundamental error requiring reversal. This is true even where, as here, defense counsel requested a verdict form on attempted uttering be given to the jury. See State v. Sykes, 434 So. 2d 325 (Fla. 1983); Achin v. State, 436 So. 2d 30 (Fla. 1982).

Accordingly, we vacate defendant's conviction and sentence for attempted uttering. The state, however, is not barred from retrying defendant on a charge of uttering a forged instrument. See Sykes and Achin.

We find no merit in Ward's other contention. Therefore, we affirm defendant's other two convictions and sentences for attempted forgery and grand theft.

HOBSON, A.C.J., and LEHAN, J., concur.