
    Lottie LINTON, Appellant, v. STATE of Florida, Appellee.
    No. 207.
    District Court of Appeal of Florida. Second District.
    Feb. 27, 1959.
    Rehearing Denied March 30, 1959.
    
      Ed Lake, West Palm Beach, for appellant.
    Richard W. Ervin, Atty. Gen., and Irving B. Levenson, Asst. Atty. Gen., for appellee.
   SHANNON, Judge.

Appellant appeals from her conviction upon four counts of an information charging her with violation of various sections of Chapter 562 of the Florida Statutes 1955, F.S.A., dealing with alcoholic beverages, including section 562.451 in Count One. Under subsection (1) of Section 562.451, it is provided:

“It is unlawful for any person to own or possess within this state any mash, wort, wash or any alcoholic beverage unless the same shall have been made or manufactured in accordance with the regulatory provisions of the laws of the state.”

And as penalty it is further provided in subsection (4):

“Any person owning or possessing within this state any mash, wort, wash or one gallon or more of any alcoholic beverage commonly known as moonshine whiskey, shall be deemed guilty of a felony on the first offense and each subsequent offense and shall be punished by imprisonment of not more than five years or fined not more than $5,000.00.”

The trial court in passing judgment upon appellant sentenced her to one year in the state penitentiary as to count one, or as an alternative that she pay a fine of $1,000.

Appellant was thus convicted under subsection (1) and was sentenced under subsection (4) of Section 562.451, Florida Statutes 1955, F.S.A. However, subsequent to the imposition of sentence, our Supreme Court handed down the decision of State v. Altman, Fla.1958, 106 So.2d 401, 406, in which Mr. Justice Drew, speaking for the Court, said:

“For the reasons above noted, the reenactment of this provision in the process of statutory compilation does not bolster the appellant’s position and the trial court properly concluded that, under the rules of construction applicable to penal laws in general, section 562.451 (4) is invalid, and the information predicated thereon must fall.”

Needless to say, this holding by the Supreme Court invalidates the sentence as to count one and makes it necessary for the trial court, whose jurisdiction includes misdemeanors as well as certain felonies, to sentence appellant under another section of the chapter relating to alcoholic beverages.

Section 562.45, Florida Statutes 1955, F. S.A., provides:

" * * * Any person violating any other provision of the beverage law for which no penalty has been provided shall be guilty of a misdemeanor and shall upon conviction be punished by imprisonment in the county jail for not more than six months or by fine of not more than $500.00; * * * ”

Hence, the trial court should sentence her in accordance with the section just quoted.

The appellant has alleged many additional errors but we do not find that any of them constitute reversible error.

The cause is remanded to the trial court for the imposition of a proper sentence as to count one of the information in accordance with this opinion. It is affirmed in all other respects.

KANNER, C. J., and ALLEN, J., concur.  