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Davis v. State

District Court of Appeal of Florida, Second District
Aug 23, 1991
584 So. 2d 233 (Fla. Dist. Ct. App. 1991)

Opinion

No. 89-01756.

August 23, 1991.

Appeal from the Circuit Court, Polk County, J. Dale Durrance, J.

James Marion Moorman, Public Defender, and Andrea Norgard, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Anne Y. Swing, Asst. Atty. Gen., Tampa, for appellee.


OPINION ON MANDATE


This case is before this court on remand from the Florida Supreme Court. Davis v. State, 581 So.2d 586 (Fla. 1991). The supreme court quashed our earlier decision with directions "to vacate the judgment and sentence under review and for any other appropriate proceedings consistent with" its decision in Gould v. State, 577 So.2d 1302 (Fla. 1991). We requested memoranda from the parties concerning the nature of any proceedings which would now be appropriate. The state argues that the supreme court's mandate allows it to brief issues which the supreme court expressly declined to review or which were not argued at an earlier time in this court. We disagree. The defendant admits that it is appropriate for this court to instruct the trial court to enter a conviction for the lesser offense of simple battery. Accordingly, we vacate the judgment and sentence under review and remand to the trial court for the entry of a judgment and appropriate sentence for the lesser offense of simple battery.

LEHAN, A.C.J., and PATTERSON and ALTENBERND, JJ., concur.


Summaries of

Davis v. State

District Court of Appeal of Florida, Second District
Aug 23, 1991
584 So. 2d 233 (Fla. Dist. Ct. App. 1991)
Case details for

Davis v. State

Case Details

Full title:LEE CURTIS DAVIS, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Second District

Date published: Aug 23, 1991

Citations

584 So. 2d 233 (Fla. Dist. Ct. App. 1991)

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