Fice v. State

Full title: MARK FICE AND JESSE JACKSON, APPELLANTS, v. THE STATE OF FLORIDA, APPELLEE

Court: District Court of Appeal of Florida, Third District

Date published: Jan 21, 1970

232 So. 2d 191 (Fla. Dist. Ct. App. 1970)

Opinion

No. 69-370.

January 21, 1970.

Appeal from the Criminal Court of Record for Dade County, Edward S. Klein, J.

Hughlan Long, Public Defender, and Gregory B. Hoppenstand, and Arthur L. Rothenberg, Asst. Public Defenders, for appellants.

Earl Faircloth, Atty. Gen., and Jesse J. McCrary, Jr., Asst. Atty. Gen., for appellee.

Before CHARLES CARROLL, and HENDRY and SWANN, JJ.

ON PETITION FOR REHEARING GRANTED

PER CURIAM.

The appellants, Mark Fice and Jesse Jackson, have filed a petition for rehearing of our per curiam affirmance of their convictions of petit larceny and buying, receiving or aiding in the concealment of stolen credit cards, filed on November 12, 1969.

The appellants contend that this court erred in affirming their convictions. In support of their contentions it is argued that since the appellants were only passengers of the car being operated and controlled by James Newbold [See Newbold v. State, Fla.App., 229 So.2d 876 opinion filed November 12, 1969.] the evidence is insufficient to support their conviction of the charge of buying, receiving or aiding in the concealment of stolen credit cards as made in Count Two of the information. We find merit in appellants' petition. Therefore, we are withdrawing our opinion of affirmance filed November 12, 1969, and hereby reverse the judgments and sentences imposed upon the defendants on the charges in Count Two of the information and the defendants are discharged as to the charges under Count Two.

As to the convictions and sentences for petit larceny under Count One of the information, we find we are without appellate jurisdiction to review a petit larceny conviction, it being a misdemeanor; therefore upon termination of the matters on appeal in this court, the appeal as it relates to the convictions and sentences of the defendants under Count One, the misdemeanor count, will be transferred to the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, as the proper forum to review this matter involving a misdemeanor. Spina v. State, Fla.App. 1966, 186 So.2d 808; Rule 2.1(a) (5) (d), Florida Appellate Rules, 32 F.S.A.