SUMMERALL v. STATE (1999)

District Court of Appeal of Florida,Fourth District.

Jessie SUMMERALL, Appellant, v. STATE of Florida, Appellee.

No. 98-2655.

Decided: May 05, 1999

Richard L. Jorandby, Public Defender, and Louis G. Carres, Assistant Public Defender, West Palm Beach, for appellant. Robert A. Butterworth, Attorney General, Tallahassee, and Marrett W. Hanna, Assistant Attorney General, West Palm Beach, for appellee.

Appellant challenges his conviction for armed burglary, contending that the state's evidence was insufficient to prove that he was armed during the commission of the burglary. In this circumstantial evidence case, the state concedes, and we agree, that under this court's decision in Dupree v. State, 705 So.2d 90, 93-94 (Fla. 4th DCA 1998), the evidence was not inconsistent with appellant's reasonable hypothesis of innocence. Appellant argued that he was not armed during the burglary, and we cannot find any evidence even indicating the presence of a firearm during the commission of the crime. However, there was sufficient evidence from which the jury could conclude that appellant had committed the burglary. Therefore, we reverse the conviction and sentence for burglary with a firearm and remand for resentencing for burglary. We affirm the conviction and sentence for possession of burglary tools.

PER CURIAM.

GUNTHER, WARNER and STEVENSON, JJ., concur.

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