Little v. State

178 So. 2d 880

Opinion

PER CURIAM.

The appellant moved in the trial court to vacate a judgment rendered on a jury verdict finding him guilty of grand larceny of a shrimp boat. The motion was denied without evidentiary hearing. This appeal is from the order denying the motion.

An examination of appellant’s motion clearly demonstrates that the trial judge acted correctly. The allegations of the petition, even if true, fail to constitute valid grounds for the relief sought. Gibson v. State, Fla.App.1965, 173 So.2d 766; Marti v. State, Fla.App.1964, 163 So.2d 506; and Savage v. State, Fla.App.1963, 156 So.2d 566.

Appellant’s brief contains an allegation which is not in his motion. This allegation goes only to the sentence and urges that the trial judge proceeded in the sentencing upon the mistaken conclusion that the defendant had been found guilty by the jury on both of two counts contained in the information. The two counts were: (1) grand larceny of a boat, and (2) using a boat without the permission of the owner. The State has very properly called to our attention the fact that the record shows that the defendant was found guilty of the first charge and not guilty of the second, and that the judge at the sentencing adjudged the defendant guilty on both charges.

Therefore, while we fully approve the order appealed, we, nevertheless, in the interest of justice and upon our own motion, remand this cause to the trial court with directions to set aside the judgment and the' sentence, and to enter a new judgment and sentence in the light of the above.

Remanded for further consideration.