State v. Rodriguez

PER CURIAM.

By petition for certiorari, we have for review a decision of the District Court of Appeal, Second District (257 So.2d 81), which allegedly conflicts with prior decisions of this Court and of the District Courts of Appeal of the State on the same point of law. We have examined the decisions involved and determined that there is conflict and that we have jurisdiction pursuant to Fla.Const., art. V, § 3(b)(3), F.S.A.

The District Court of Appeal relied upon its decision in Anderson v. State, 255 So.2d 550 (Fla.App.2d, 1971), to reverse the trial court and order a new trial because Rodriguez, who had been convicted of aiding or assisting in the running of a lottery, had been denied a requested instruction on possession of lottery paraphernalia. The reasoning relied upon by the District Court of Appeal has been specifically rejected by this Court in quashing the decision of the District Court of Appeal in Anderson v. State, supra. See State v. Anderson, 270 So.2d 353 (Fla.1973).

Accordingly, the opinion of the District Court of Appeal is quashed and this cause is remanded to the District Court of Appeal for further proceedings not inconsistent with this opinion.

It is so ordered.

CARLTON, C. J., and ROBERTS, ERVIN, ADKINS, BOYD and DEKLE, JJ., concur. McCAIN, J., dissents.