
    John Thomas EDGE, Appellant, v. STATE of Florida, Appellee.
    No. 5171.
    District Court of Appeal of Florida. Second District.
    Nov. 13, 1964.
    On Rehearing Jan. 6, 1965.
    
      W. D. Frederick, Jr., Public Defender and Joseph X. DuMond, Asst. Public Defender, Orlando, for appellant.
    James W. Kynes, Atty. Gen., Tallahassee, Robert R. Crittenden, Asst. Atty. Gen., .Lakeland, for appellee.
   PER CURIAM.

The defendant appeals from a summary denial of his motion to vacate judgment and sentence. Only one of appellant’s •contentions has merit. That is whether the trial court imposed a sentence in excess of -that authorized by law.

A sentence of five years was imposed for Attempted Breaking and Entering with Intent to Commit a Misdemeanor. 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 maximum sentence which could have been imposed for the attempted crime was two and one-half years. Therefore the sentence on this particular conviction, Attempted Breaking and Entering with Intent to Commit a Misdemeanor, must be vacated and the case remanded 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 GRANTED

PER CURIAM.

The court, sua sponte, ordered a 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, F.S.A.

In Turknett v. State, 1934, 116 Fla. 562, 156 So. 538, the Florida Supreme Court stated, by way of dictum, that Attempted Breaking and Entering with Intent to Commit a Misdemeanor would be punishable 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 to adhere to our original opinion.

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