Dart v. State

417 So. 2d 1165, 1982 Fla. App. LEXIS 20880

Opinion

ON MOTION FOR REHEARING/MOTION TO RECALL MANDATE

PER CURIAM.

The Motion for Belated Rehearing/Motion to Recall Mandate filed more than fifteen (15) days from the date of the issuance of the decision in this cause is stricken as untimely. Fla.R.App.P. 9.330(a); Rogers v. State Farm Mut. Automobile Ins. Co., 390 So.2d 138 (Fla. 5th DCA 1980). However, upon its own motion, the Court has determined to reconsider its earlier decision, 415 So.2d 846, rendered in this cause and has withdrawn the mandate.

The State has now filed with this Court the information accusing appellant of sexual battery and burglary with intent to commit an assault, and it would serve no useful purpose to remand the case to the trial court for that court to attach the information to its order. This accusatory pleading conclusively reveals that the charge of sexual battery is not subsumed in the charge of burglary with intent to commit an assault, for the charging allegations of latter offense do not state that appellant assaulted the victim by committing a sexual battery. See McElveen v. State, 415 So.2d 746 (Fla. 1st DCA 1982).

There being no need for further proceedings by the trial court, we affirm the judgment of the trial court.

AFFIRMED.

McCORD, MILLS and SHIVERS, JJ., concur.