Floyd v. State 170 So. 2d 599

*600PER CURIAM.

The appellant was convicted of Attempted Breaking and Entering with Intent to Commit a Misdemeanor, Possession of Bur-glarious Tools, and Trespass. He was sentenced to five years on the first two counts and thirty days on the third, the sentences to run concurrently.

The appellant contends the evidence on all three counts was insufficient to sustain a conviction, but a perusal of the record shows this argument to be without merit.

It is further alleged that a sentence of five years for Attempted Breaking and Entering with Intent to Commit a Misdemeanor is in excess of that authorized by law. Fla.Stat., Sec. 810.05, F.S.A. provides:

“Whoever breaks and enters or enters without breaking any dwelling or store house, or any building, ship, vessel, or railroad car with intent to commit a misdemeanor, shall be punished by imprisonment in the state prison or county jail not exceeding five years, or by fine not exceeding five hundred dollars.”

And Fla.Stat., Sec. 776.04(3), F.S.A., provides, in part:

“ * * * In no case shall the punishment by imprisonment exceed one-half of. the greatest punishment which might have been inflicted if the offense attempted had been committed.”

It is apparent from the statutes that the maxim sentence which could have been imposed for the attempted crime was two and one-half years. Therefore this case is remanded to the trial court in order that a proper sentence may be imposed.

Affirmed in part and reversed in part.

SMITH, C. J., and SHANNON and ANDREWS, JJ., concur.

ON REHEARING

PER CURIAM.

The court, sua sponte, ordered ai rehearing because of a conflict between this opinion and that of the District Court, of Appeal, First District, in Williams v. State, Fla.App.1958, 101 So.2d 877. In the-Williams case the First District referred' to the offense of Attempted Breaking and Entering with Intent to Commit Petit Larceny as a misdemeanor under Fla.Stat.,. Sec. 776.04(3), F.S.A. This statute provides, in part:

“(3) If the offense attempted to be committed is punishable by imprisonment in the state prison for a term of less than five years, or by imprisonment in the county jail, or by fine, the-person convicted of such attempt shall' be punished by imprisonment in the county jail not exceeding one year, or by fine not exceeding three hundred dollars.”

It is implicit in our above opinion that, this offense is a felony because we applied’. Fla.Stat., Sec. 776.04(2), F.S.A., to determine the maximum sentence which could be imposed. This statute provides:

“(2) If the offense attempted to be-committed is punishable by imprisonment in the state prison for life, or for five years or more, the person convicted of such attempt shall be punished by imprisonment in the state prison not exceeding five years, or in the county jail not exceeding one year.”

Fla.Stat., Sec. 810.05, F.S.A., which is-quoted in our original opinion, provides that Breaking and Entering with Intent to Commit a Misdemeanor is punishable by a sentence “not exceeding five years.” The question then is whether the words “not exceeding five years” place the attempt of this offense within the purview of Subsection (2) or Subsection (3) of Fla.Stat., Sec. 776.04.

*601In Turknett v. State, 1934, 116 Fla. 562, 156 So. 538, the Florida Supreme Court -stated, hy way of dictum, that Attempted Breaking and Entering with Intent to 'Commit a Misdemeanor would be punish.able by imprisonment not exceeding two .and one-half years. This dictum supports • our view that the attempt of this offense -is punishable under Fla.Stat., Sec. 776.04 ,(2), F.S.A.

Having reconsidered the issue, and realizing that this does create a conflict with •the Williams case, supra, we have decided rto adhere .to our original opinion.

SMITH, C. J., and SHANNON and ANDREWS, JJ., concur.