OPINION OF THE COURT
J. COHEN, Circuit Judge.ON REHEARING
The majority affirms the county court’s order granting appellee’s petition pursuant to Florida Statute 322.261(3) under Florida’s Implied Consent Law.
The trial court found that the breathalyzer refusal form was not properly sworn to. Now having had the benefit of State v Johnston, 14 FLW 2848 (2d DCA, December 22, 1989), the majority herein affirms the instant case controlled by the facts and law set forth in Johnston, at p. 2848.
In our opinion filed December 23, 1989 in State v Reed, 39 Fla. *16Supp. 2d — , I dissented for the reasons now set forth in Johnston. (Although the original opinion filed December 12, 1989 incorrect records my concurrent with said opinion, a later order has now corrected that opinion to show my dissent.) Had the entire court had the benefit of State v Johnston, 14 FLW 2848 (2d DCA, December 22, 1989), the majority opinion may very well have been otherwise.
MILLER, J., concurs.
CARLISLE, J., dissent.