Summary
In Howard v. State, 538 So.2d 980 (Fla. 3d DCA 1989), then-Chief Judge Schwartz wrote in a specially concurring opinion that although he was bound by stare decisis to follow Jones v. State, Judge Hubbart's dissenting opinion "represents the better reasoned view by far."
Summary of this case from Richardson v. StateOpinion
Nos. 88-1144 and 88-2684.
February 28, 1989.
Appeals from the Circuit Court for Dade County; Thomas M. Carney, Judge.
Bennett H. Brummer, Public Defender, and Peter L. Nimkoff, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., and Joni B. Braunstein, Asst. Atty. Gen., for appellee.
Before SCHWARTZ, C.J., JORGENSON, J., and JOHN G. FERRIS (Ret.), Associate Judge.
Affirmed on the authority of Jones v. State, 492 So.2d 1124 (Fla. 3d DCA 1986), review denied, 501 So.2d 1282 (Fla. 1986).
JORGENSON, J. and JOHN G. FERRIS, (Retired) Associate Judge, concur.
I agree that Jones v. State is squarely on point, that this panel is bound by it, and that it compels affirmance. Were I free to do so, however, I would follow Judge Hubbart's dissenting opinion in Jones which, with respect, I believe represents the better reasoned view by far. I would therefore and wish we could reverse the conviction below for attempted burglary with directions to retry the defendant on the charge of trespass alone.