Kelly v. State

490 So. 2d 1383, 11 Fla. L. Weekly 1570

Opinion

490 So.2d 1383 (1986)

Dolan Robert KELLY, Appellant,
v.
STATE of Florida, Appellee.

No. 85-1904.

District Court of Appeal of Florida, Fifth District.

July 17, 1986.

James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Joseph N. D'Achille, Jr., Asst. Atty. Gen., Daytona Beach, for appellee.

DAUKSCH, Judge.

This is an appeal from burglary and robbery convictions. We affirm the burglary conviction and reverse the robbery conviction.

The facts of this case are virtually indistinguishable from those of Royal v. State, 490 So.2d 44 (Fla. 1986), which holds that violence in departing from a theft is not such violence as to raise the crime from theft to robbery. Thus, we must reverse the robbery conviction here. Because the charge and the evidence well support a petit theft conviction, we remand for entry of judgment and sentence for that crime.

AFFIRMED in part; REVERSED in part; and REMANDED.

COBB and COWART, JJ., concur.