Johnson v. State

Full title: ELSIE HURSEY JOHNSON, A/K/A ELSIE TOWNSEND, APPELLANT, v. THE STATE OF…

Court: District Court of Appeal of Florida, Third District

Date published: Dec 27, 1966

193 So. 2d 56 (Fla. Dist. Ct. App. 1966)

Opinion

No. 65-1016.

December 27, 1966.

Appeal from Criminal Court of Record, Dade County; Gene Williams, Judge.

Seidel Seidel Ft. Lauderdale, Jack R. Nageley, Miami Beach, for appellant.

Earl Faircloth, Atty. Gen., and Barry N. Semet, Asst. Atty. Gen., for appellee.

Before CARROLL, BARKDULL and SWANN, JJ.

ON MOTION TO MODIFY

PER CURIAM.

The opinion and judgment of this court in the above case, filed October 11, 1966, 190 So.2d 601, dealt with an appeal by Elsie Hursey Johnson following her conviction on two counts of an information, under one of which she was charged with grand larceny and under the other with breaking and entering a dwelling house with intent to commit a felony, to wit: grand larceny. We affirmed the conviction on the grand larceny count and reversed the conviction on the count relating to breaking and entering a dwelling, on holding that the breaking and entering proved was not of a residence but was of a building, a lesser offense. Accordingly, we remanded the cause with directions to the trial court to enter judgment for the lesser offense and impose appropriate sentence thereon.

The motion presently filed by the state to recall the mandate and modify our opinion and judgment calls attention to the fact that in entering judgment initially the trial court had made the necessary correction, by adjudging the defendant guilty of the lesser offense of breaking and entering a building (rather than a residence) with intent to commit a felony. The fact that the trial court had done so had escaped the attention of counsel for both appellant and the state, and the matter was submitted and argued to this court on the assumption that the adjudication of guilt on the breaking and entering count was of a dwelling, as alleged in the information.

In view of the present disclosure as to the form of the adjudication made by the trial court, we now recall the mandate previously issued by this court, amend our opinion and judgment of October 11, 1966, to eliminate therefrom the provision for a partial reversal and the directions contained therein to the trial court, and we hereby affirm the judgment of the trial court in all respects.

The mandate shall be reissued, based on the opinion and judgment of this court filed October 11, 1966, as hereby modified and amended.

It is so ordered.