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.