Opinion
No. 72-690.
December 19, 1972.
Appeal from Criminal Court of Record, Dade County; Paul Baker, Judge.
Tobias Simon and Elizabeth J. du Fresne, Miami, for appellant.
Robert L. Shevin, Atty. Gen., and William L. Rogers, Asst. Atty. Gen., for appellee.
Before PEARSON and HENDRY, JJ., and WARD, C. LAVON, Associate Judge.
In light of the record in this cause, we find that there was sufficient evidence to support the trial judge's finding that the appellant was guilty of a simple assault and battery within the purview of § 784.03, Fla. Stat., F.S.A., and that such a finding was proper under the charged crime as a lesser included offense thereof.
However, we are of the opinion that the trial judge erred in sentencing the appellant pursuant to § 801.091 and § 801.131, Fla. Stat., F.S.A., since the crime of simple assault and battery is punishable under the provisions of §§ 775.082, .083 of the Florida Statutes, F.S.A.
We, therefore, affirm that part of the judgment that found the appellant guilty of simple assault and battery, but reverse the sentence entered and remand with directions to re-sentence appellant in conformity with this opinion.
Affirmed in part, reversed in part and remanded with directions.