SUMMERALL v. STATE, 734 So.2d 449 (Fla.App. 4 Dist. 1999)

JESSIE SUMMERALL, Appellant, v. STATE OF FLORIDA, Appellee.

No. 98-2655District Court of Appeal of Florida, Fourth District.
Opinion filed May 5, 1999 JANUARY TERM 1999

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Mary E. Lupo, Judge; L.T. No. 97-9653 CFA02.

Richard L. Jorandby, Public Defender, and Louis G. Carres, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Marrett W. Hanna, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Appellant challenges his conviction for armed burglary, contending that the state’s evidence was insufficient to prove that he was armed during the commission

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of the burglary. In this circumstantial evidence case, the state concedes, and we agree, that under this court’s decision in Dupree v. State, 705 So.2d 90, 93-94 (Fla. 4th DCA 1998), the evidence was not inconsistent with appellant’s reasonable hypothesis of innocence. Appellant argued that he was not armed during the burglary, and we cannot find any evidence even indicating the presence of a firearm during the commission of the crime. However, there was sufficient evidence from which the jury could conclude that appellant had committed the burglary. Therefore, we reverse the conviction and sentence for burglary with a firearm and remand for resentencing for burglary. We affirm the conviction and sentence for possession of burglary tools.

GUNTHER, WARNER and STEVENSON, JJ., concur.