
    Robert A. FRECCACRETO, Appellant, v. STATE of Florida, Appellee.
    No. 73-664.
    District Court of Appeal of Florida, Fourth District.
    March 22. 1974.
    
      J. Brian Brennan, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Dean J. Rosenbach, Asst. Atty. Gen., West Palm Beach, for appellee.
   CROSS, Judge.

Appellant-defendant, Robert A. Frecca-creto, appeals a judgment of conviction and sentence for the offenses of fraudulent use of a credit card and buying, concealing or aiding in the concealment of stolen property.

On September 18, 1972, appellant-defendant, Robert A. Freccacreto, was charged by information with buying, receiving or aiding in the concealment of stolen property (count two) and fraudulent use of a credit card (count three). At a plea conference the defendant entered a plea of guilty to count three of the information. The state agreed to and did nolle prosequi count two of the information. When the defendant was brought before the court for judgment and sentencing, the defendant upon motion was permitted to withdraw his previous plea of guilty to the charge of fraudulent use of a credit card. Trial was held. The jury found the defendant guilty as to both buying, receiving, or aiding in the concealment of stolen property and fraudulent use of a credit card. The defendant was adjudged guilty of both crimes by the trial court and sentenced. It is from this judgment that the defendant appeals.

From the record it is apparent that the trial court committed fundamental error in adjudging the defendant guilty under count two of the information of buying, receiving and aiding in the concealment of stolen property. The prosecution had entered a nolle prosequi to this charge prior to trial. No further charges were placed against the defendant. The failure of the state to charge the defendant with a crime of which he was ultimately convicted violates the mandate of the Florida Constitution and clearly constitutes fundamental error. Fla.Const. art. 1, § 15, F.S.A.

Accordingly, the trial court’s judgment and sentence entered upon count two of the information that was nolle pressed is vacated- and set aside and declared to be void. As to count three of the information, the judgment entered thereon is affirmed and the cause remanded for entry of an appropriate sentence.

Affirmed in part; reversed in part, and remanded.

HARE, RAYMOND, J., Associate Judge, concurs.

MAGER, J., concurs specially.

MAGER, Judge

(concurring specially):

I fully concur in the result reached by the majority opinion with the following additional comments.

During oral argument it became apparent to this court and a subsequent review of the record confirmed that the defendant was tried, adjudicated guilty and sentenced by the trial court on a criminal charge which had previously been nolle prossed by the state. The record suggests that the nolle pros of Count II was part of a plea bargaining arrangement wherein defendant agreed to plead guilty to Count III. The court minutes reflect that the court accepted the defendant’s guilty plea to Count III and the state nolle prossed Count II.

The court minutes further reflected that some several months later defendant was permitted to withdraw his plea of guilty as to Count III. However, when the defendant went to trial apparently the state, the defendant and the court were under the impression that Count II was still a viable count perhaps on the premise that the aborted plea bargaining arrangement revived Count II. In actuality Count II had been nolle prossed and was never reinstated.

There is nothing in the record that remotely suggests any impropriety in the conduct of the state, the defendant or the court; on the contrary, the record suggests inadvertence. The supplemental brief filed by the state after oral argument confirms this, candidly and commendably acknowledging that the judgment and sentence was improper, void and should be reversed. The inadvertence by all concerned is further borne out by the fact that the adjudication of guilt and sentence as to Count II was not even assigned as error or argued in this appellate presentation.

Nonetheless, the adjudication of guilt and sentence on a nolle prossed charge is error of such a fundamental nature apparent from the face of the record which would justify appellate consideration and rectification. Ogilvie v. State, Fla.App. 1966, 181 So.2d 710.  