Zimmerman v. State

320 So. 2d 41 | Fla. Dist. Ct. App. | 1975

PER CURIAM.

Zimmerman pled guilty to the charge of “crime against nature,” Fla.Stat. § 800.01 (1973) (repealed). On February 25, 1972, he was adjudicated guilty and placed on five years probation. He now appeals, challenging the legality of the sentence imposed when that probation was later revoked. Although Zimmerman neither appealed his initial conviction nor argues the issue on this appeal, we believe his conviction is void because it was entered well after the sodomy statute was declared unconstitutionally vague. Franklin v. State, Fla.1971, 257 So.2d 21. Because he could have at most been convicted of the misdemeanor of an “unnatural and lascivious” act,¹ Franklin, supra, and since our records indicate he has already served the six-month maximum sentence which could have been imposed for that crime which was committed in 1969, we remand with instructions to discharge the defendant and to reduce his judgment of guilt to the misdemeanor offense.

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

1 . Fla.Stat. § 800.02 (1969).