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STATE v. ROBINSON

Nos. 5D12-178, 5D12-536.

123 So.3d 679 (2013)

STATE of Florida, Appellant/Cross-Appellee, v. Donald E. ROBINSON, Appellee/Cross-Appellant.

District Court of Appeal of Florida, Fifth District.

October 18, 2013.

Attorney(s) appearing for the Case

Pamela Jo Bondi , Attorney General, Tallahassee, Lori N. Hagan and Pamela J. Koller , Assistant Attorneys General, Daytona Beach, for Appellant/Cross-Appellee.

Terrence E. Kehoe of Law Office of Terrence E. Kehoe, Orlando, for Appellee/Cross-Appellant.

PER CURIAM.

The State challenges the departure sentence after Appellee was convicted of aggravated assault with a firearm. Appellee commendably concedes error on this point but asserts by cross-appeal that the court gave erroneous jury instructions that amounted to fundamental error, necessitating a new trial. We agree with Appellee and reverse and remand for a new trial.

The aggravated assault instruction was fundamentally erroneous because it was based on...

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