Davis v. State , 581 So. 2d 586 ( 1991 )

McDONALD, Justice.

We accepted review of Davis v. State, 567 So.2d 25 (Fla. 2d DCA 1990), because of asserted conflict with Penny v. State, 140 Fla. 155,191 So. 190 (1939). Davis also conflicts with our decision in Gould v. State, 577 So.2d 1302 (Fla.1991). We have jurisdiction, article V, section 3(b)(3), Florida Constitution, and quash Davis.

The question involved is whether a person charged under subsection 794.011(4)(a), Florida Statutes (1985), and improperly convicted thereunder is subject to a conviction under subsection 794.011(5) when the accusatory pleadings do not cover all the elements of the latter statute. In Gould we answered the question in the negative, and Gould controls this case.

The state urges that we decided Gould wrongly and asks us to revisit that decision. We decline to do so. The state further asks us to review Davis v. State, 538 So.2d 515 (Fla. 2d DCA), review denied, 544 So.2d 201 (Fla.1989), which vacated Davis’ conviction under subsection 794.-011(4)(a). We also decline this invitation.

The decision under review is quashed, and this cause is remanded to the district court with directions to vacate the judgment and sentence under review and for any other appropriate proceedings consistent with our decision in Gould.

It is so ordered.

SHAW, C.J., and OVERTON, BARKETT, GRIMES, KOGAN and HARDING, JJ., concur.