J. H. MCCORMICK
v.
STATE OF FLORIDA
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J. H. McCormick was convicted of aggravated assault and sentenced to four months in jail. The Florida Supreme Court reversed the conviction because the evidence was wholly insufficient to support the charge of aggravated assault, and the trial court lacked power to retroactively amend its guilty findings after appeal was perfected.
The conviction for aggravated assault must be reversed because the evidence was wholly insufficient to sustain the charge. The trial court lacked power to alter its guilty findings by nunc pro tunc order after the elapse of time and lodging of the appeal, and any retroactive correction of the record cannot cure this error.
“An Aggravated assault is an assault with a deadly weapon without a premeditated design to kill the person assaulted.”
Establishes the legal standard for aggravated assault that was not met by the evidence
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Join FLexlaw to unlock all legal intelligenceAppellant was tried before the court (bench trial) on a charge of aggravated assault arising from an argument with Philip Goldenburg during a merchand…
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Appellant waived a jury and was tried before the court on an information charging an aggravated assault. He was found guilty as charged and was sentenced to serve four months in the county jail at hard labor.
The evidence disclosed that appellant was purchasing a stock of merchandise from one Philip Goldenburg and an argument arose between them. The State’s evidence showed that appellant struck Goldenburg a severe blow on the face and called for someone to hand him his gun and that he would kill the latter. The two were separated and the difficulty ended. There was no testimony that appellant was armed with any weapon although appellant had a shortgun only a few feet away.
An Aggravated assault is an assault with a deadly weapon without a premeditated design to kill the person assaulted. See Section 784.04, Florida Statutes 1941. It is readily apparent that the evidence was wholly insufficient to sustain the conviction as charged; to wit, aggravated assault.
The motion for a new trial questioned the finding, of guilt and was denied July, 1943. On October 4, 1943, there was *840filed in this Court a certified copy of an order-by the trial judge dated October 2, 1943, whereby the trial judge attempted, by a nunc pro tunc order, to correct his minutes to show that appellant was in truth and fact found guilty of an assault and battery, however the sentence was not altered. The latter order recites that notice was given although the record does not so show. After this appeal was perfected the order was entered without the knowledge or consent of this Court. When the trial judge found the defendant guilty, he was acting in the same capacity as jury and his finding was equivalent to a jury verdict. The imposition of sentence was the act of the court based upon the finding of guilt. The trial court was without power to alter his records by way of correcting his finding after the elapse of time and the lodging of appellant’s appeal in this Court.
It is true that the court might, under the evidence, have found appellant guilty of an assault and battery and the sentence imposed might be authorized by the statute (Sec. 784.04, Fla. Stat. 1941) yet that does not cure the error.
It is urged that at most the judgment should be reversed and the cause remanded for a proper sentence on one of the lesser offenses included under the charge of aggravated assault. We are vested with such power under the statute, Sec. 924.34, Florida Statutes 1941, however in this case it is the judgment of this Court that the judgment appealed from is reversed for a new trial.
Reversed.
BUFORD, C. J., TERRELL and CHAPMAN, JJ., concur.
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Goswick v. State, 143 So. 2d 817 (Fla. 1962)…med the ruling of the trial judge. Goswick v. State, supra. It is this decision which is now submitted for review. The petitioner contends that the decision of the Court of Appeal conflicts with a prior decision of this Court in McCormick v. State, 153 Fla. 838, 16 So. 2d 49. The respondent contends that there is no conflict and, therefore, this Court is without jurisdiction to proceed. The respondent argues that the Court of Appeal found it unnecessary to decide [*819] “whether assault and battery is a…
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Fulton v. Poston Bridge & Iron, Inc., 122 So. 2d 240 (Fla. 3d DCA 1960)…ent to add grounds to it is not timely and comes too late. Hughes v. Vossler, 110 Kan. 279, 203 P. 1107; Likas v. Lackey, 186 N.C. 398, 119 S.E. 763 ; 4A C.J.S. Appeal and Error § 617. See Banning v. Brown, 73 Fla. 54, 74 So. 23; McCormick v. State, 153 Fla. 838, 16 So. 2d 49. Applicable here is the statement contained in the section of Corpus Juris Secun-dum cited above, to the following effect: “While the appellate proceeding may cause the trial court to lose jurisdiction of the case it still retains ju…
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Morrison v. State, 259 So. 2d 502 (Fla. 3d DCA 1972)…ffense charged and the presence of which is sufficiently disclosed in the evidence. Since it would be proper for the jury to convict thereon under § 919.16, it is proper for the court to charge thereon. Brown v. State, supra; Cf. McCormick v. State, 153 Fla. 838, 16 So. 2d 49. The remaining contentions of the appellant which were referred to above have been considered in the light of the record and briefs and are found to be without merit. No- reversible error having been made to appear, the judgment is a…
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