Fogle v. State

429 So. 2d 781, 1983 Fla. App. LEXIS 20806

Opinion

PER CURIAM.

We reject Fogle’s contention that the evidence was legally insufficient to support his conviction of manslaughter. See Rhoden v. State, 149 Fla. 531, 6 So.2d 378 (1942). We agree, however, that the trial court erred in classifying the conviction as a felony of the first degree in the absence of a jury finding that a firearm was used in the commission of the crime. We therefore modify the judgment entered on count one of the indictment to reflect the crime’s actual status as a felony of the second degree. See Streeter v. State, 416 So.2d 1203 (Fla.3d DCA 1982).

We have considered the other issues presented by the appellant and find them to be without merit. See Jacobs v. State, 396 So.2d 713 (Fla.1981); Henry v. State, 359 So.2d 864 (Fla.1978); Banks v. State, 342 So.2d 469 (Fla.1976).

Affirmed as modified.