Opinion
No. YY-379.
October 16, 1981.
Appeal from the Circuit Court, Bay County, W. Fred Turner, J.
Michael Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Daytona Beach, for appellee.
Whigham appeals his conviction and sentences on charges of kidnapping and sexual battery. We find no merit to the claim that his second trial, following a mistrial that was brought about by a prosecutor's comment on the "Golden Rule" in closing argument, should have been barred on double jeopardy grounds. Under the circumstances of this case, the comments did not amount to "grossly negligent or intentional misconduct." See United States v. Davis, 589 F.2d 904 (5th Cir. 1979).
However, we agree that this cause should be returned to the trial judge for correction of the commitment papers which now state that Whigham "cannot be released without permission of this court." The order of commitment must conform to Chapter 947, Florida Statutes, as the judge expressed at the sentencing hearing. Jurisdiction of the trial court is limited to the first third of the maximum sentence imposed for the most serious felony. Section 947.16(3).
Accordingly, this cause is remanded to the trial court for proceedings consistent with this opinion.
WENTWORTH and JOANOS, JJ., concur.