Kish v. State

198 So. 2d 639 (1967)

James Clyde KISH, Appellant,
v.
The STATE of Florida, Appellee.

No. 66-396.

District Court of Appeal of Florida. Third District.

May 9, 1967.

Lynch, Quick & Christmas, Miami, for appellant.

Earl Faircloth, Atty. Gen., and Barry N. Semet, Asst. Atty. Gen., for appellee.

Before HENDRY, C.J., and PEARSON and CHARLES CARROLL, JJ.

PER CURIAM.

The appellant, James Clyde Kish, with a co-defendant, Anthony F. Simon, was found guilty by a jury, adjudicated and sentenced for the crimes of (1) breaking and entering a dwelling house and assaulting persons lawfully therein, and (2) robbery. The appeal of Anthony F. Simon was considered and affirmed by this court. See Simon v. State, Fla.App. 1967, 195 So. 2d 232.

On this appeal, Kish presents three points. The first point urges error upon the denial of an amended motion for new trial filed after the filing of the notice of appeal. This identical point was presented in Simon v. State, supra. We dismiss this contention upon authority of the Simon case and State ex rel. Faircloth v. District Court of Appeal, Third District, Fla. 1966, 187 So. 2d 890, cited therein.

Appellant's second point is identical to the third point presented in Simon v. State, supra. It urges that the two counts upon which appellant was convicted and sentenced were facets or phases of the same transaction. We do not accept this contention and affirm upon the authority of the Simon case, supra, and Steele v. Mayo, Fla. 1954, 72 So. 2d 386, cited therein.

Appellant's third point urges that he was unlawfully deprived of the right to opening argument at the close of all the evidence. The record affirmatively shows that appellant joined in a suggestion to the court that the arguments to the jury be conducted in the order in which they were heard. We dismiss this contention upon authority of Hall v. State, 119 Fla. 38, 160 So. 511 (1935); Lopez v. State, Fla. 1953, 66 So. 2d 807.

Affirmed.