State v. Drumwright

367 So. 2d 256, 1979 Fla. App. LEXIS 14021

• Court: District Court of Appeal of Florida
• Decided: February 7, 1979
• Docket: No. 78-609
• Status: Published

Opinion

PER CURIAM.

Appellees were charged with attempted burglary of a structure in violation of Section 810.02 and Section 777.04(4)(c), Florida Statutes (1977). Upon appellees’ motions the trial court dismissed the information for lack of jurisdiction, relying upon our case of Bownes v. State, 345 So.2d 787 (Fla. 4th DCA 1977) and the State has appealed.

The trial judge considered the information charged a felony, but he felt obliged to follow the Bownes case in which this court stated such a charge was a first degree misdemeanor. Since Bownes we have twice receded from that statement¹ and held in accord with the great weight of authority that attempted burglary is a felony of the third degree.

Accordingly, we reluctantly reverse the judgment appealed from and remand the cause for further proceedings consistent herewith.

DOWNEY, C. J., and MOORE and BER-ANEK, JJ., concur.

1 . State v. Sudol, 357 So.2d 761 (Fla. 4th DCA 1978); Gray v. State, 356 So.2d 848 (Fla. 4th DCA 1978).