Appellate Counsel was ineffective for failing to raise that the original charges which was attempted robbery with a firearm and mask was amended to attempted robbery with a firearm(removing the mask portion) to allow the victim to say that she could identify her assailant.
Petitioner was charged with attempted robbery with a firearm and mask. The mask part of the charge was removed so that the victim could say that she could identify the assailant. At sentencing, the state said that he did not know why the mask portion was removed from the original charges. However, the state knows that it is very tough to convict somebody accused of wearing a mask since the witnesses will likely be unable to identify the suspect. This is why the mass portion was removed. It allowed the tainted identification of the victim. The victim was unable to identify the assailant. She said so on her 911 tape because the victim was wearing a mask thst covered his face.
A constructive amendment of a charging document allows the jury to convict the defendant of an offense different from or in addition to the offenses alleged in the indictment. Stanley VS. State, 57 So. 3d 944, 947 (Fla. 4th DCA 2011). “This is a due process violation which constitutes fundamental error.” Id. at 947 (citing Crain v. State, 894 So. 2d 59, 69 (Fla. 2004).
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