Swihart v. State

Full title: Donald Frank SWIHART, Appellant, v. STATE of Florida, Appellee

Court: District Court of Appeal of Florida, Fifth District

Date published: Dec 11, 1998

721 So. 2d 810 (Fla. Dist. Ct. App. 1998)

Opinion

No. 98-645.

December 11, 1998.

Appeal from the Circuit Court for Brevard County, Jere E. Lober, Judge.

James B. Gibson, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.

COBB, Judge.

ON MOTION FOR REHEARING AND REQUEST FOR CERTIFICATION OF CONFLICT

We grant appellants' motion for rehearing and certification, rescind our prior opinion, and issue the following opinion:

We affirm on the authority of State v. Baxley, 684 So.2d 831 (Fla. 5th DCA 1996), rev. denied, 694 So.2d 737 (Fla. 1997). Accord State v. Hayes, 23 Fla. L. Weekly D2184, 720 So.2d 1095 (Fla. 4th DCA 1998). Contra State v. Holland, 689 So.2d 1268 (Fla. 1st DCA 1997), State v. Perry, 716 So.2d 327 (Fla. 2d DCA 1998).

We certify conflict with Holland and Perry.

GOSHORN and THOMPSON, JJ., concur.