ELSIE HURSEY JOHNSON, A/K/A ELSIE TOWNSEND, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The Florida Supreme Court recalled its previous mandate and amended its prior judgment to affirm a conviction in full. The court had previously reversed part of the conviction, but upon learning the trial court had already corrected the error, it modified its own decision.
Yes, the court should recall its mandate and modify its prior opinion and judgment. The prior decision is amended to affirm the judgment of the trial court in all respects.
“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.”
Describes the court's initial decision on appeal.
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Join FLexlaw to unlock all legal intelligenceThe appellant was convicted of grand larceny and breaking and entering a dwelling house with intent to commit a felony. On appeal, the court affirmed …
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ON MOTION TO MODIFY
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 *57lesser 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.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bennie Jackson and Henry Fisher v. State, 259 So. 2d 739 (Fla. 2d DCA 1972)…urglarized is a material element of the offense and must be both alleged and proven with particularity. See Wood v. State, 1882, 18 Fla. 967; Kirkland v. State, 1940, 142 Fla. 73, 194 So. 624; Johnson v. State, Fla.App.1966, 190 So. 2d 601, affirmed 193 So. 2d 56; Johnson v. State, Fla.App.1966, 188 So. 2d 61. The offense of breaking and entering involves an invasion of the possessory rights, as distinguished from ownership rights, of another. Cannon v. State, 1931, 102 Fla. 928, 136 So. 695; Smith v. State,…
Authorities Cited
- Johnson v. State, 190 So. 2d 601 (Fla. 3d DCA 1966)