Florida District Courts of Appeal, 1974

Smith v. State

Florida District Courts of Appeal · Decided November 20, 1974 · Boardman, Evans, McNulty, Vernon

305 So. 2d 876; 1974 Fla. App. LEXIS 7492 (Southern Reporter, Second Series)

070rehearing

ON REHEARING

PER CURIAM.

Rehearing denied.

McNULTY, C. J., and BOARDMAN, J., concur.

EVANS, VERNON W., Jr., Associate Judge, dissents.

Dissenting Opinion

EVANS, Associate Judge

(dissenting).

I would grant rehearing. In my view, even assuming the jury was properly charged on all degrees of homicide, the evidence is insufficient to support any verdict or judgment higher than manslaughter.

Opinion of the Court

PER CURIAM.

This court’s prior opinion, 1973, 282 So.2d 179, reversing the judgment against Ray D. Smith was quashed by the supreme court. State v. Smith, Fla.1974, 300 So.2d 257. The supreme court remanded to us for consideration of other points on appeal not dealt with in our earlier opinion. A review of those points indicates that the error, if any, is harmless. Fla.Stat. § 924.-33 (1971).

Affirmed.

McNULTY, C. J., BOARDMAN, J., and EVANS, VERNON W., Jr., Associate Judge, concur.

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