L.H., a child, Appellant, v. STATE (2000)

District Court of Appeal of Florida,Fourth District.

L.H., a child, Appellant, v. STATE of Florida, Appellee.

No. 4D99-3177.

Decided: February 02, 2000

Richard L. Jorandby, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant. Robert A. Butterworth, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.

We accept the state's concession that the trial court erred when it found appellant guilty of conspiracy to commit armed robbery, an offense with which he was not charged. See Ferguson v. State, 633 So.2d 1183 (Fla. 4th DCA 1994). Armed robbery is a separate and distinct crime from the offense of conspiracy to commit armed robbery. See Kennedy v. State, 564 So.2d 1127 (Fla. 1st DCA 1990). Although defense counsel failed to timely object to the adjudication, appellate review is not precluded, since the adjudication constitutes fundamental error. See In Interest of C.T., 582 So.2d 1245 (Fla. 4th DCA 1991).

Accordingly, we reverse the trial court's finding that appellant was guilty of conspiracy to commit an armed robbery in case number 98-3204 and its disposition order placing appellant in a level six commitment. We remand this cause to the trial court with instructions to discharge appellant from commitment for that offense.

REVERSED and REMANDED.

PER CURIAM.

WARNER, C.J., DELL and KLEIN, JJ., concur.

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