Opinion
No. 76-2040.
February 19, 1979.
Appeal from Circuit Court, Dade County; Ira Dubitsky, Judge.
Mark King Leban and Joe N. Unger, Miami, for appellant.
Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
Before PEARSON, HENDRY and SCHWARTZ, JJ.
ON RECONSIDERATION, PURSUANT TO REMAND
Subsequent to the filing of our former opinion in this cause, see Porter v. State, 356 So.2d 1268 (Fla. 3d DCA 1978), the State of Florida petitioned for certiorari in the Supreme Court of Florida. The Supreme Court granted certiorari and remanded the cause, 364 So.2d 892, for further proceedings consistent with the recent decision of the Supreme Court in Clark v. State, 363 So.2d 331 (Fla. 1978).
Pursuant to the order of the Supreme Court, we have allowed the filing of additional briefs by the appellant and the appellee, having heard argument, and have reached the conclusion that the Supreme Court's decision in Clark v. State, supra, must be applied to this appeal and that the application of that decision to the facts of this case requires an affirmance of the decision of the trial court.
Accordingly, having found that no error is presented by the appeal of Donald Porter, defendant, our opinion in this cause filed March 7, 1978, and reported at 356 So.2d 1268, and the mandate of this court, issued April 21, 1978, are withdrawn and the judgment and sentence heretofore entered in the cause by the trial court are affirmed.
Affirmed.