WILLIAM KINDER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court had jurisdiction over the offense of assault with intent to commit manslaughter.
Appellant pleaded guilty to assault with intent to commit manslaughter and was convicted. He later filed a motion to vacate the judgment, arguing the …
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This is an appeal by appellant William Kinder from an order denying his motion filed under CrPR 1.850, 33 F.S.A. to vacate a previous judgment of conviction entered against him.
On July 24, 1968, information was filed in the Hillsborough County Criminal Court of Record charging Kinder with the offense of assault with intent to commit first degree murder. Upon plea of guilty in open Court on October 16, 1968 to the lesser offense of assault with intent to commit manslaughter, Kinder was, on December 9, 1968, adjudged to be guilty of said lesser offense and sentenced to serve a term in the State Prison.
On November 24, 1969, Kinder filed motion in the trial Court under CrPR 1.850, seeking to vacate said judgment and sentence, contending that the trial Court did not have jurisdiction of the offense of assault with intent to commit manslaughter, relying upon Judge McCain’s 4th District dissenting opinion in Brown v. State, Fla.App.1970, 232 So.2d 55, 58. But the Supreme Court of Florida upon further review of the same case, specifically overruled Judge McCain’s dissenting opinion, Brown v. State, Fla.1970, 237 So.2d 129.
This 2nd District Court has had occasion to apply the Supreme Court’s ruling in cases brought to this Court on appeal since the high Court’s opinion in Brown was released. See Rogers v. State, Fla.App., 239 So.2d 118, opinion filed September 11, 1970, not yet published; also Woods v. State, 239 So.2d 853, this day decided by this Court.
The order appealed from is thereupon'—
Affirmed.
HOBSON, C. J., and McNULTY, J., concur.
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DR. Phillips, Inc. v. L & W Supply Corp., 790 So. 2d 539 (Fla. 5th DCA 2001)…” depends on whether the amended pleadings contain new issues of fact, rather than new theories of recovery.” Adler, 492 So. 2d at 733 (citing Guajardo v. Estelle, 580 F. 2d 748 (5th Cir.1978)). The Adler court noted that in Bank of Miami v. Greene, 240 So. 2d 162 (Fla. 3d DCA 1970), it was held that “the right to a jury trial was not revived by the filing of an amendment to the complaint that ‘touched the same general issue of damages which was then before the court.’ ” Adler, 492 So. 2d at 733 (citing Bank…
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Adler v. Seligman OF Fla., Inc., 492 So. 2d 730 (Fla. 4th DCA 1986)…s interpreting the same rule indicate that the term “new issue” refers to whether the amended pleadings contain new issues of fact, rather than new theories of recovery. Guajardo v. Estelle, 580 F. 2d 748 (5th Cir.1978).2 In Bank of Miami v. Greene, 240 So. 2d 162 (Fla. 3d DCA 1970), without reciting the facts, the court held that the right to a jury trial was not revived by the filing of an amendment to the complaint that “touched the same general issue of damages which was then before the court.” Id. at 162…
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Duncan v. State, 240 So. 2d 324 (Fla. 2d DCA 1970)…st again prove fruitless, upon authority of the Supreme Court’s opinion in Brown v. State, Fla.1970, 237 So. 2d 129. See also this 2nd District Court’s opinions in Rogers v. State, 239 So. 2d 118; Woods v. State, 239 So. 2d 853; and Kinder v. State, 240 So. 2d 162. The lower Court’s order in the instant case, denying Duncan’s post-conviction motion for relief, must be and is— Affirmed. HOBSON, C. J., and McNULTY, J., concur.…
Authorities Cited
- Calloway Brown v. State, 232 So. 2d 55 (Fla. 4th DCA 1970)
- Calloway Brown v. State, 237 So. 2d 129 (Fla. 1970)
- Rogers v. State, 239 So. 2d 118 (Fla. 2d DCA 1970)
- Woods v. State, 239 So. 2d 853 (Fla. 2d DCA 1970)
- Biddle v. State, 239 So. 2d 853 (Fla. 2d DCA 1970)