McClain v. State

Full title: DALE McCLAIN, APPELLANT, v. THE STATE OF FLORIDA, APPELLEE

Court: District Court of Appeal of Florida, Third District

Date published: Feb 6, 1979

366 So. 2d 878 (Fla. Dist. Ct. App. 1979)

Opinion

No. 76-486.

February 6, 1979.

Appeal from Circuit Court, Dade County; Alan R. Schwartz, Judge.

Bennett H. Brummer, Public Defender, and Karen Gottlieb, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.

Before HAVERFIELD,^_ C.J., and HENDRY and BARKDULL, JJ.

_ Judge Haverfield participated in the Order on Mandate in this cause but not in the decision.

ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on February 8, 1977 ( 341 So.2d 1075) affirming the judgment and sentence of the Circuit Court for Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court's judgment, by certiorari, the Supreme Court of Florida, by its opinion and judgment filed December 21, 1978 and mandate now lodged in this court, quashed this court's judgment with directions.

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on February 24, 1977 is withdrawn the judgment of this court filed in this cause on February 8, 1977 is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court. The judgment and sentence appealed from herein is reversed and the cause is remanded to the trial court to vacate the sentence for display of a firearm during commission of a felony. Costs allowed shall be taxed in the trial court (Rule 9.400(a) Florida Rules of Appellate Procedure).