Johnson v. State , 1971 Fla. App. LEXIS 6291 ( 1971 )

PER CURIAM.

Appellant appeals from an order denying his motion to vacate and set aside judgment and sentence.

Appellant had been found guilty of violation of the beverage laws under § 562.27 F.S.A. and was sentenced “ * * * to pay a fine of $2,500.00 and 4.00 court costs, and in default of the payment thereof, that you be confined in the State Prison of Florida, at hard labor for a term of three (3) years.” Appellant was unable to pay the fine and is now serving time at the state prison. Appellant is an indigent, having been adjudged insolvent in the trial court below. Therefore, in the light of Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971), the sentence is vacated and the cause is remanded for resen-tencing not inconsistent with this opinion.

PIERCE, C. J., and HOBSON and McNULTY, JJ., concur.