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DARBY v. STATE

No. 96-803.

689 So.2d 427 (1997)

Robert DARBY, Appellant, v. The STATE of Florida, Appellee.

District Court of Appeal of Florida, Third District.

March 12, 1997.

Attorney(s) appearing for the Case

Bennett H. Brummer, Public Defender and Marti Rothenberg, Assistant Public Defender, for appellant.

Robert A. Butterworth, Attorney General and Roberta G. Mandel, Assistant Attorney General, for appellee.

Before GERSTEN, GREEN and SHEVIN, JJ.

PER CURIAM.

We find no merit to the challenges raised by Darby to his conviction and sentence for section 794.011(4)(b), Florida Statutes (1995) and affirm the same. We do, however, remand this cause solely for the trial court to delete any reference to a violation of section 794.011(4)(a) where it is clear from the state's evidence at trial that the victim was not "physically helpless to resist" where she was able to communicate her unwillingness to participate in...

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