Davis v. State

584 So. 2d 233, 1991 Fla. App. LEXIS 8196, 1991 WL 161730

Opinion

OPINION ON MANDATE

PER CURIAM.

This case is before this court on remand from the Florida Supreme Court. Davis v. State, 581 So.2d 586 (Fla.1991). The supreme court quashed our earlier decision with directions “to vacate the judgment and sentence under review and for any other appropriate proceedings consistent with” its decision in Gould v. State, 577 So.2d 1302 (Fla.1991). We requested mem-oranda from the parties concerning the nature of any proceedings which would now be appropriate. The state argues that the supreme court’s mandate allows it to brief issues which the supreme court expressly declined to review or which were not argued at an earlier time in this court. We disagree. The defendant admits that it is appropriate for this court to instruct the trial court to enter a conviction for the lesser offense of simple battery. Accordingly, we vacate the judgment and sentence under review and remand to the trial court for the entry of a judgment and appropriate sentence for the lesser offense of simple battery.

LEHAN, A.C.J., and PATTERSON and ALTENBERND, JJ., concur.