Opinion
No. 69-629.
April 14, 1970.
Appeal from the Criminal Court of Record for Dade County, Carling Stedman, J.
Miller Russell, Miami, for appellant.
Earl Faircloth, Atty. Gen., and Harold Mendelow, Asst. Atty. Gen., for appellee.
Before CHARLES CARROLL, BARKDULL and SWANN, JJ.
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.
The State urges that the objections to the form of the information were waived by the provisions of Rules 1.140(d) (1), 1.140( o), Florida Rules of Criminal Procedure, 33 F.S.A. This is not applicable in the instant case because the defendant was not aware that the trial court was going to charge under another statute until the end of the trial, at which time he made appropriate objection.
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 primary 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.