TIMOTHY WILLIAM KONRATH, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Although the State failed to prove that Timothy Konrath, Jr. committed the crime of aggravated assault with a firearm, all of the elements of the lesser included offense of improper exhibition of a firearm were determined by the jury verdict to have been established. See § 790.10, Fla. Stat. (2006) (“If any person having or carrying any ... firearm ... shall, in the presence of one or more persons, exhibit the same in a ... threatening manner, not in necessary self-defense, the person so offending shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.093.”). We therefore reverse the conviction for aggravated assault with a firearm and remand to the trial court for entry of a judgment of conviction and for sentencing for the lesser included offense of improper exhibition of a firearm. See Marra v. State, 970 So. 2d 475 (Fla. 5th DCA 2007).
REVERSED and REMANDED with instructions.
GRIFFIN and SAWAYA, JJ., and PLEUS, R., Senior Judge, concur.
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Knight v. State, 107 So. 3d 449 (Fla. 5th DCA 2013)…through circumstantial evidence and still a question for the jury in most cases, these and the many other decisions addressing the issue have not applied the “special” standard reserved for a “wholly circumstantial” case. See, e.g., Evans v. State, 997 So. 2d 1281 (Fla. 4th DCA 2009) (finding that circumstances were insufficient for jury to find “intent to tamper or conceal” evidence beyond a reasonable doubt without using “special” standard of review); Arnold, v. State, 892 So. 2d 1172 (Fla. 5th DCA 2005) (f…
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- Marra v. State, 970 So. 2d 475 (Fla. 5th DCA 2007)