WILLIAM RUSSO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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William Russo was convicted by jury of conspiracy to commit robbery under Florida statute § 833.04 and sentenced to seven years imprisonment. On appeal, Russo challenged the sufficiency of evidence, the trial court's jury instruction under § 833.03 instead of the charged § 833.04, and the sentencing under the wrong statute. The appellate court affirmed the conviction but reversed the sentence, remanding for resentencing under the proper statute.
The court affirmed the conviction as supported by ample competent and sufficient evidence. The jury instruction error was harmless because the substantive elements of the crimes in both statutes are essentially the same, with the primary difference being sentencing provisions. However, the sentencing under § 833.03 was improper, and the case was remanded for resentencing under the correct statute § 833.04.
[1] A trial court errs in instructing the jury on a statute not referenced in the information without amendment.
[2] A jury verdict will not be disturbed on appeal if supported by ample, competent, and sufficient evidence.
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Join FLexlaw to unlock all legal intelligence“We find ample, competent, and sufficient evidence to support the jury's verdict and we will not disturb same.”
Establishes the high deference standard for reviewing jury verdicts on sufficiency of evidence grounds.
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Join FLexlaw to unlock all legal intelligenceRusso was charged by information with conspiracy to commit robbery under § 833.04, Fla.Stat. A jury convicted him and he was adjudicated guilty. The t…
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Appellant was informed against by an information charging him with conspiracy to commit robbery, contrary to the provisions of § 833.04, Fla.Stat., F.S.A. He was convicted by a jury, adjudicated guilty, and sentenced to seven years’ confinement in the State penitentiary pursuant to the provisions of § 833.03, Fla.Stat., F.S.A. He has appealed and assigned error as to the sufficiency of the evidence, error in the trial court instructing the jury as to the provisions of § 833.03, Fla.Stat., F.S.A., and error in sentencing him under the latter section rather than that contained in the information.
We find ample, competent, and sufficient evidence to support the jury’s verdict and we will not disturb same. Crum v. State, Fla.App.1965, 172 So.2d 24; Dunnaway v. State, Fla.App.1968, 208 So.2d 840; Sylvia v. State, Fla.App.1968, 210 So.2d 286. Without any amendments to the information, the court erred in giving § 833.03, Fla.Stat., F.S.A., as an instruction to the jury rather than the section charged to have been violated in the information.1
An examination of the charges in toto and the particular language of §§ 833.03, 833.04, Fla.Stat., F.S.A., as to the substantive crime charged therein [the pri*20mary difference being the sentence involved], leads us to the conclusion that this error was harmless. Coggins v. State, Fla.App.1958, 101 So.2d 400; Casso v. State, Fla.App.1966, 182 So.2d 252; Mathews v. State, Fla.App.1969,221 So.2d 431; § 924.33, Fla.Stat., F.S.A. However, we find that the trial court did err in sentencing under a section not referred to in the information and, therefore, we will return the matter to the trial court for an appropriate sentence under § 833.04, Fla.Stat., F.S.A.
The verdict and final judgment of conviction are hereby affirmed. The sentence is hereby set aside, and the cause and the appellant are remanded to the trial court for an appropriate sentence in accordance with the views above expressed.
Affirmed in part; reversed in part, with directions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Crum v. State, 172 So. 2d 24 (Fla. 3d DCA 1965)
- Casso v. State, 182 So. 2d 252 (Fla. 2d DCA 1966)
- Sylvia v. State, 210 So. 2d 286 (Fla. 3d DCA 1968)
- Coggins v. State, 101 So. 2d 400 (Fla. 3d DCA 1958)
- Mathews v. State, 221 So. 2d 431 (Fla. 2d DCA 1969)
- Ahearn v. Elissa Dorothy Ahearn, 101 So. 2d 400 (Fla. 3d DCA 1958)
- Kines v. Hagist, 208 So. 2d 840 (Fla. 1st DCA 1968)