Simpson v. State

• Decision Date: 27 July 1971
• Docket Number: No. M-259,M-259
• Parties: Macio Bernard SIMPSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 656

250 So.2d 656

Macio Bernard SIMPSON, Appellant, v. STATE of Florida, Appellee.

No. M-259.

District Court of Appeal of Florida, First District.

July 27, 1971.

Appeal from the Criminal Court of Record for Duval County; Warren A. Nelson, Judge.

Louis O. Frost, Jr., Public Defender, and Gerald Sohn, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.

PER CURIAM.

Whereas, the judgment and decision of this Court in this cause was filed August 4, 1970, and reported in 237 So.2d 341, wherein the judgment of the Criminal Court of Record for Duval County was affirmed; and

Whereas, said decision and judgment was declined review by the Supreme Court of Florida by certiorari proceedings, 240 So.2d 645; and

Whereas, in the October Term, 1970, the said cause came on to be heard before the Supreme Court of the United States on petition for writ of certiorari to this Court and response thereto; and

Whereas, the mandate of the Supreme Court of the United States has been filed with this Court, which said mandate was predicated upon the order and judgment of the Supreme Court of the United States, entered June 14, 1971, 403 U.S. 384, 91 S.Ct. 1801, 29 L.Ed.2d 549, which said judgment vacated the judgment of this Court first above mentioned and remanded the case to this Court for consideration in light of Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469, accordingly,

The judgment and opinion of this Court filed August 4, 1970, is set aside and held for naught, and the opinion and judgment of the Supreme Court of the United States filed June 14, 1971, is adopted as this Court's opinion and judgment and the same shall accompany the mandate of this Court to the Criminal Court of Record for Duval County; and, accordingly,

The Criminal Court of Record for Duval County is directed to hold an adversary proceeding for the purpose of examining the record of the prior proceeding against appellant herein and to take into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration in the instant proceeding, which said examination shall be in accordance with and for the purpose of the principles set forth in Ashe v. Swenson, supra, and for such further proceedings as may be deemed appropriate in the premises.

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