McGill v. State

443 So. 2d 433, 1984 Fla. App. LEXIS 11226

Opinion

DAUKSCH, Judge.

This is an appeal from a conviction and sentence for armed robbery. The evidence is sufficient. Tibbs v. State, 397 So.2d 1120 (Fla.1981). The court properly refused an instruction on circumstantial evidence. Miller v. State, 403 So.2d 1014, 1017 (Fla. 5th DCA 1981).

The court erred in sentencing appellant to a minimum three year sentence because only his accomplice had a firearm. Earnest v. State, 351 So.2d 957 (Fla.1977); Hillman v. State, 410 So.2d 180 (Fla. 2d DCA 1982). The court did not err in retaining jurisdiction over the first one-third of the sentence but even if he had there was no objection below and thus the question was not preserved for appellate review.

Conviction affirmed; portion of sentence reversed and case remanded for correction of sentence.

COBB, J., and DIAMANTIS, Associate Judge, concur.