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Kinchen v. State

District Court of Appeal of Florida, Third District
May 26, 1970
235 So. 2d 749 (Fla. Dist. Ct. App. 1970)

Opinion

No. 69-877.

May 26, 1970.

Appeal from the Criminal Court of Record, Dade County, Paul Baker, J.

Pollack Barone, Jack J. Taffer, Miami, Neale J. Poller, for appellant.

Earl Faircloth, Atty. Gen., and Jesse J. McCrary, Jr., Asst. Atty. Gen., for appellee.

Before PEARSON, C.J., and CHARLES CARROLL and BARKDULL, JJ.


The appellant was brought to trial upon an information charging the crime of robbery. At the close of the case for the prosecution the trial judge denied appellant's motion for a judgment of acquittal but reduced the charge to conspiracy to commit robbery. At the close of the testimony the judge adjudicated the appellant guilty of the charge as reduced.

Appellant urges that the conspiracy to commit robbery is not an offense included under the charge of robbery. Cf. Newkirk v. State, Fla.App. 1969, 222 So.2d 435. The state in its brief admits that it is unable to substantiate a contradictory position. We are convinced that the law has been correctly stated by the appellant. The adjudication and sentence are reversed with directions to discharge the appellant. Cf. Mackey v. State, Fla.App. 1969, 223 So.2d 380.

This judgment is without prejudice to the state to proceed with a new prosecution for the crime of conspiracy to commit robbery.

Reversed.


Summaries of

Kinchen v. State

District Court of Appeal of Florida, Third District
May 26, 1970
235 So. 2d 749 (Fla. Dist. Ct. App. 1970)
Case details for

Kinchen v. State

Case Details

Full title:LILLIE BELL KINCHEN, APPELLANT, v. THE STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Third District

Date published: May 26, 1970

Citations

235 So. 2d 749 (Fla. Dist. Ct. App. 1970)

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