Opinion
No. 75-1821.
October 1, 1976. Rehearing Denied October 29, 1976.
Appeal from the Circuit Court, Palm Beach County, Robert S. Hewitt, J.
Richard L. Jorandby, Public Defender, and Henry Prettyman, Sp. Asst. Public Defender, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant was convicted of robbery, conspiracy to commit robbery, and assault and battery. Three points have been raised on this appeal, one of which has merit.
From our examination of the record on appeal we conclude that the trial court erred in denying appellant's motion for judgment of acquittal, based upon insufficiency of the evidence to prove the existence of a conspiracy to commit robbery. Appellant's conviction of conspiracy to commit robbery is reversed.
The Attorney General, in his brief, asserts that appellant admitted in a statement to police that he committed the conspiracy. However the record on appeal does not support this assertion. In order to maintain credibility with the court, appellate counsel should not make factual assertions not supported by the record on appeal.
We have considered the other points raised by this appeal and find no reversible error. Appellant's convictions for robbery and assault and battery are affirmed.
Affirmed in part and reversed in part and remanded with instructions that appellant's conviction and sentence of conspiracy to commit robbery be vacated.
DOWNEY and ALDERMAN, JJ., and DANAHY, PAUL W., Jr., Associate Judge, concur.