
    Harold S. SMITH, as Judge of the Circuit Court of the Twelfth Judicial Circuit in and for Collier County, Florida, Appellant, v. STATE of Florida ex rel. Clayton Alvin HAMM, Appellee.
    No. 37591.
    Supreme Court of Florida.
    July 23, 1969.
    Frank Schaub, Bradenton, and J. Blan Taylor, Naples, for appellant.
    B. Clark Nichols, of Carroll, Vega, Brown & Nichols, Naples, for appellee.
   PER CURIAM.

We here review a decision by the District Court of Appeal, Second District, prohibiting further trial on a charge of murder by appellee on the theory of former jeopardy after a mistrial had been declared by the trial court. The factual background, circumstances and ruling are reported in the decision of the District Court in State ex rel. Hamm v. Smith, etc., 209 So.2d 876, and it would be useless to repeat them here. In so holding, the District Court failed to follow the decision of this court in Adkins v. Smith, 205 So.2d 530, which is controlling in the case sub judice.

Accordingly, the decision under review is reversed and remanded for further proceedings not inconsistent with this opinion under the authority of Adkins v. Smith, supra.

It is so ordered.

ERVIN, C. J., ROBERTS, CARLTON, ADKINS and BOYD, JJ., and RAWLS, District Court Judge, concur.

DREW, J., dissents with Opinion.

DREW, Justice

(dissenting):

We have no power to reverse a district court in a direct appeal, no matter how erroneous the decision may be, unless it falls within the category of cases defined in the Constitution. This one does not. I, therefore, dissent on jurisdictional grounds.  