          Supreme Court of Florida
                                   ____________

                                  No. SC16-1738
                                  ____________

                            DARRYL LEWIS DAVIS,
                                 Petitioner,

                                         vs.

                             STATE OF FLORIDA,
                                 Respondent.

                                   ____________

                                  No. SC16-1739
                                  ____________

                            DARRYL LEWIS DAVIS,
                                 Petitioner,

                                         vs.

                             STATE OF FLORIDA,
                                 Respondent.

                                 [February 1, 2018]

LAWSON, J.

      In the decisions on review involving two separate robberies committed by

the same defendant, the Fifth District Court of Appeal ordered the trial court to

reduce Darryl Lewis Davis’s convictions of robbery with a deadly weapon to
robbery with a weapon after explaining that Davis’s juries found that he did not

possess the only weapon alleged in the information—a firearm—and that no

evidence was presented that Davis used any weapon other than a firearm. Davis v.

State, 197 So. 3d 615, 615 (Fla. 5th DCA 2016) (No. 5D15-2507); Davis v. State,

197 So. 3d 615, 616 (Fla. 5th DCA 2016) (No. 5D15-509). We accepted

jurisdiction because the Fifth District’s decisions expressly and directly conflict

with the First District Court of Appeal’s decision in Starling v. State, 152 So. 3d

868 (Fla. 1st DCA 2014), and the Second District Court of Appeal’s decision in

Deleon v. State, 66 So. 3d 391 (Fla. 2d DCA 2011), where, on similar facts, the

district courts ordered the trial courts to reduce the defendants’ convictions to

simple robbery and simple carjacking, respectively. See art. V, § 3(b)(3), Fla.

Const. We write briefly to explain why the records in Davis’s cases resolve the

apparent conflict and why the Fifth District reached the correct result on the merits.

      The records in Davis’s cases contradict the Fifth District’s statement that

there was no evidence Davis used “any weapon other than a firearm.” Davis, 197

So. 3d at 615. To the contrary, in both of Davis’s trials for two separate robberies,

evidence was presented that the object Davis used to commit the crime was either a

firearm or a BB gun replica of a firearm. The absence of a similar dispute in

Starling or Deleon distinguishes those cases. See Starling, 152 So. 3d at 868

(“[T]he only weapon referenced in the record as being involved in the crime was



                                         -2-
the firearm allegedly wielded by Appellant, which the jury affirmatively concluded

Appellant did not possess.”); Deleon, 66 So. 3d at 394 (“[T]he victim testified that

Deleon carried a gun, and there was no evidence that he carried any other weapon

during the commission of the offense.”).

      In addition to resolving the apparent conflict with Starling and Deleon, the

records establish that the Fifth District correctly directed the trial court to reduce

Davis’s convictions from robbery with a deadly weapon to robbery with a weapon.

In both of Davis’s cases, the State charged Davis with robbery with a firearm in

violation of section 812.13(2)(a), Florida Statutes (2001); it did not charge him

with robbery with a deadly weapon. Moreover, robbery with a deadly weapon is

not a lesser-included offense of robbery with a firearm, although the trial court

wrongly instructed on it as such. See Davis, 197 So. 3d at 615 (“[I]t was error to

list robbery with a deadly weapon as a lesser-included offense on the verdict forms

in [Davis’s] cases.”); cf. Deleon, 66 So. 3d at 395 (holding that carjacking with a

deadly weapon is neither a necessary nor permissive lesser-included offense of

carjacking with a firearm). Rather, robbery with a weapon, on which Davis’s

juries were also instructed, is the next immediate lesser-included offense of

robbery with a firearm. See Reddick v. State, 394 So. 2d 417, 417-18 (Fla. 1981);

see also Fla. Std. Jury Instr. (Crim.) 15.1 Robbery.




                                          -3-
      Thus, while Davis’s convictions for the uncharged offense of robbery with a

deadly weapon cannot stand, see Jaimes v. State, 51 So. 3d 448, 448 (Fla. 2010)

(“It is a fundamental principle of due process that a defendant may not be

convicted of a crime that has not been charged by the state.”), the evidence that the

object Davis used in the robberies was, if not a firearm, a BB gun replica of a

firearm—which Davis’s juries clearly found to be a weapon—is sufficient to

sustain convictions for robbery with a weapon. See Fla. Std. Jury Instr. (Crim)

15.1 Robbery (defining “weapon” as “any object that could be used to cause death

or inflict serious bodily harm”); see also Dale v. State, 703 So. 2d 1045, 1046-47

(Fla. 1997) (concluding that the definitions in the standard jury instructions on

robbery are “a correct statement of the law” and recognizing that a BB or pellet

gun may be a deadly weapon). Accordingly, the Fifth District correctly ordered

the trial court to reduce Davis’s convictions to robbery with a weapon. Cf. §

924.34, Fla. Stat. (2017) (allowing an appellate court to direct a judgment for a

lesser-included offense that is established by the record where the evidence does

not sustain the offense for which the defendant was found guilty); State v. Sigler,

967 So. 2d 835, 844 (Fla. 2007) (“[W]hen all of the elements of a lesser offense

have been determined by the jury, section 924.34 is a valid exercise of the

legislative prerogative allowing appellate courts to direct a judgment for such an

offense.”).



                                        -4-
      Therefore, we approve the result of the Fifth District’s decisions.

      It is so ordered.

LABARGA, C.J., and PARIENTE, QUINCE, CANADY, and POLSTON, JJ.,
concur.
LEWIS, J., concurs in result.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.

Application for Review of the Decision of the District Court of Appeal – Direct
Conflict of Decisions

      Fifth District - Case No. 5D15-2507 and 5D15-2509

      (Orange County)

Rocco J. Carbone, III of The Law Office of Rocco J. Carbone, III, PLLC, St.
Augustine, Florida,

      for Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Wesley Heidt, Bureau
Chief, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, Florida,

      for Respondent




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