BALLARD v. STATE

PER CURIAM.

The sole point on appeal in this cause is the alleged error of the trial court in refusing to instruct the jury on the applicable penalties as required by Florida Rule of Criminal Procedure 3.390(a). This issue is resolved against the appellant, by the recent decision of the Supreme Court in Johnson v. State, Fla., 308 So.2d 38, Opinion filed December 11, 1974. There the Supreme Court held that the provision of this rule requiring the trial judge to charge the jury on the penalty fixed by law for the offense for which the accused is on trial is directory and not mandatory, and that the failure of the trial judge to charge on the penalty is not error. We, therefore, hold that the trial court in the cause sub judice did not commit error when it refused to instruct the jury on the applicable penalties as required by Florida Rule of Criminal Procedure 3.390(a), and that this cause should be, and it is, affirmed.

JOHNSON, Acting C.J., McCORD, J., and MASON, Associate Judge, concur.