Martin v. State, 76-1035

• Decision Date: 20 February 1979
• Docket Number: No. 76-1035,76-1035
• Citation: 368 So.2d 378
• Parties: Theophilus A. MARTIN, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 378

368 So.2d 378

Theophilus A. MARTIN, Appellant, v. The STATE of Florida, Appellee.

No. 76-1035.

District Court of Appeal of Florida, Third District.

Feb. 20, 1979.

Rehearing Denied March 26, 1979.

Rehearing Denied April 9, 1979.

Appeal from Circuit Court, Dade County; Richard S. Fuller, Judge.

Law Offices of Joe N. Unger and Mark King Leban, Miami, for appellant.

Jim Smith, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appellee.

Before HAVERFIELD, C. J., and PEARSON and SCHWARTZ, JJ.

ON RECONSIDERATION, PURSUANT TO REMAND

PER CURIAM.

Subsequent to the filing of our former opinion in this cause, see Martin v. State, 356 So.2d 320 (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appeal of Theophilus Martin, defendant, the mandate of this court heretofore issued in this cause on March 17, 1978 is withdrawn, our opinion in this cause filed July 6, 1977, and reported at 356 So.2d 320, is withdrawn and the judgment and sentence heretofore entered in the cause by the trial court are affirmed.

Affirmed.