Opinion
No. 93-4174.
May 18, 1995.
An appeal from the Circuit Court for Bay County; Don T. Sirmons, Judge.
Nancy A. Daniels, Public Defender, Fred Parker Bingham II, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., Patrick Martin, Asst. Atty. Gen., Tallahassee, for appellee.
Appellant raises five issues challenging his attempted robbery conviction. We affirm the first two regarding jury instructions and the denial of his motion for new trial based on Ray v. State, 403 So.2d 956 (Fla. 1981). The third issue regarding prosecutorial misconduct during cross-examination of a defense witness and closing argument was not preserved for appellate review and does not constitute fundamental error; therefore, we affirm as to that issue. We also affirm appellant's fourth issue asserting ineffective assistance of trial counsel, see Loren v. State, 601 So.2d 271 (Fla. 1st DCA 1992), but we do so without prejudice to appellant's right to file a motion pursuant to Florida Rule of Criminal Procedure 3.850.
We reverse the fifth issue and remand with directions to correct the judgment to reflect that appellant was convicted of attempted robbery, in violation of sections 812.13 and 777.04, Florida Statutes (Supp. 1992 1991), not section 812.12.
AFFIRMED in part, REVERSED in part and REMANDED for further proceedings.
MINER and BENTON, JJ., concur.