Carter v. State

503 So. 2d 969, 12 Fla. L. Weekly 745, 1987 Fla. App. LEXIS 12043

Opinion

PER CURIAM.

We reverse and remand with directions that appellant’s judgment be vacated and that judgment be entered for the lesser offense of second degree robbery. Although there was evidence that appellant threatened to use an unseen firearm during the course of the robbery, the proof at trial established that he did not possess a firearm during the course of the robbery. Hence, a conviction for robbery with a firearm cannot be sustained. See I.O. v. State, 412 So.2d 42 (Fla. 3d DCA 1982). We reject appellant’s claim that his counsel could not stipulate to the facts in the manner approved by the trial court here. See A.E.K. v. State, 432 So.2d 720 (Fla. 3d DCA 1983).

DOWNEY, ANSTEAD and DELL, JJ., concur.