Appellate Counsel was ineffective for failing to argue that the State constructively amended the information before trial to allow petitioner to be convicted of attempted robbery with a firearm as opposed to attempted robbery with a firearm and mask (the primary charge) in order to allow the tainted identification of the petitioner to be allowed at trial.
The mask part of the count was removed even though the victim said that the suspect wore a mask and that she could only see the eyes. 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 v.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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