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JOHNSON v. STATE

No. 79-360.

394 So.2d 1121 (1981)

James Henry JOHNSON, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida, Fifth District.

March 11, 1981.

Attorney(s) appearing for the Case

Richard L. Jorandby, Public Defender and Charles D. Peters, Asst. Public Defender, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee and Edward M. Chew, Asst. Atty. Gen., Daytona Beach, for appellee.

ORFINGER, Judge.

Because the failure to give the instruction on penalties was properly preserved for appeal under Tascano v. State, 393 So.2d 540 (Fla. 1980), (rehearing denied), and Kelly v. State, 389 So.2d 250 (Fla. 2d DCA 1980), we must reverse the conviction and order a new trial. However, because the evidence of appellant's guilt is clear and the failure to give the instruction...

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