Opinion
No. 78-609.
February 7, 1979.
Appeal from the Circuit Court, Orange County, Cecil H. Brown, J.
Robert L. Shevin, Atty. Gen., Tallahassee, and Kenneth G. Spillias, Asst. Atty. Gen., West Palm Beach, for appellant.
Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellees.
Appellees were charged with attempted burglary of a structure in violation of Section 810.02 and Section 777.04(4)(c), Florida Statutes (1977). Upon appellees' motions the trial court dismissed the information for lack of jurisdiction, relying upon our case of Bownes v. State, 345 So.2d 787 (Fla. 4th DCA 1977) and the State has appealed.
The trial judge considered the information charged a felony, but he felt obliged to follow the Bownes case in which this court stated such a charge was a first degree misdemeanor. Since Bownes we have twice receded from that statement and held in accord with the great weight of authority that attempted burglary is a felony of the third degree.
State v. Sudol, 357 So.2d 761 (Fla. 4th DCA 1978); Gray v. State, 356 So.2d 848 (Fla. 4th DCA 1978).
Accordingly, we reluctantly reverse the judgment appealed from and remand the cause for further proceedings consistent herewith.
DOWNEY, C.J., and MOORE and BERANEK, JJ., concur.