Espinosa v. State

696 So. 2d 1224, 1997 Fla. App. LEXIS 5867, 1997 WL 282852

Opinions

HARRIS, Judge.

We remanded this case to the trial court, as directed by the supreme court, for determination of whether the evidence presented at trial was sufficient to convict Espinosa of the greater offense of resisting with violence even though the jury convicted him of resisting without violence. Espinosa v. State, 690 So.2d 656 (Fla. 5th DCA 1997). The trial court has now complied with our remand and determined that the state made out a prima facia ease, even though not believed by the jury; hence, there was sufficient evidence to convict Espinosa of the greater offense. Under our directions from the supreme court, Espinosa lacks standing to challenge the fact that one of the elements of the lesser offense was not proved. We therefore affirm the court below.

Since the trial court has now made a finding not previously subject to appeal by the defendant, it appears that Espinosa should, if he disagrees with the finding below or the standard used by the trial court, be permitted to move for rehearing or certification of this issue to the supreme court.

AFFIRMED,

DAUKSCH and ANTOON, JJ., concur.