
    Shawn Edward PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    No. 91-3579.
    District Court of Appeal of Florida, First District.
    July 19, 1993.
    Nancy A. Daniels, Public Defender, and Kathleen Stover, Asst. Public Defender, Tallahassee, for appellant.
    
      Robert A. Butterworth, Atty. Gen., and Bradley R. Bischoff, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

The appellant appeals from his conviction for robbery, asserting that (1) there was an improper joinder of offenses and defendants; (2) the evidence presented by the appellee was insufficient to prove that the appellant intended to commit robbery; and (3) the trial court erred in giving a flight instruction. We conclude that the improper joinder issue was not preserved. While the evidence of the appellant’s intent was far from overwhelming, we conclude that it was sufficient for submission of the issue to the jury. The trial court erred, however, in giving a flight instruction. See Fenelon v. State, 594 So.2d 292 (Fla.1992).

Although Fenelon had not been decided when this case was tried, its holding must be applied to this case because the flight issue was preserved at trial and Fen-elon was decided during the time that the appellant’s conviction was pending direct appellate review. See Smith v. State, 598 So.2d 1063 (Fla.1992); Kelvin v. State, 610 So.2d 1359 (Fla. 1st DCA 1992); Keys v. State, 606 So.2d 669 (Fla. 1st DCA 1992).

Upon a review of the record in this case, we are unable to conclude that the improper flight instruction was harmless. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Accordingly, the appellant’s conviction is reversed and this cause is remanded for a new trial.

MINER and ALLEN, JJ., concur.

BOOTH, J., concurs in part and dissents in part.

BOOTH, Judge,

concurring in part and dissenting in part.

I agree with the majority on all points except the critical finding that the giving of the flight instruction was harmful error. Appellant assisted in the robbery of the cab driver: He sat in the front seat of the cab next to the victim while his codefendant sat in the back with a knife on the victim. Appellant also reached under the front seat and opened and examined the contents of the victim’s bag. There was no evidence that appellant’s participation was due to his fear of the other robbers. To the contrary, the State’s two witnesses testified that appellant did not appear to be acting under duress. The “duress” argument is speculative at best and was rejected by the jury. The weight of the State’s evidence was sufficient to overcome the error in giving the flight instruction, under the test announced in State v. Diguilio, 491 So.2d 1129 (Fla.1986); compare Crocker v. State, 616 So.2d 1180 (Fla. 1st DCA 1993).

I would affirm the judgment of conviction below.  