Vina v. State

265 So. 2d 367, 1972 Fla. LEXIS 3521

Opinion

PER CURIAM.

Appellant was convicted and sentenced to a term of years in prison for violating Fla.Stat. § 800.01, F.S.A., the “Crime Against Nature” statute. He unsuccessfully challenged the constitutionality of the statute below. During the pendency of his direct appeal here, this Court declared the above statute unconstitutional. Franklin v. State and Joyce v. State, 257 So.2d 21 (Fla.1971).

Under the evidence in this case, the conduct denounced in Fla.Stat. § 800.02, F.S.A., is a lesser included offense. Therefore, the judgment and sentence lodged against appellant are reversed, and the cause is remanded for disposition not inconsistent with our decision in Franklin v. State and Joyce v. State, supra. See also Morris v. State, 261 So.2d 563 (2nd D.C.A.Fla.1972).

It is so ordered.

CARLTON, Acting C. J., and ADKINS, BOYD, McCAIN and DEKLE, JJ., concur.