O'Brian v. State

District Court of Appeal of Florida

O'Brian v. State

649 So. 2d 336, 1995 Fla. App. LEXIS 574, 1995 WL 33547

District Court of Appeal of Florida·Decided January 31, 1995·No. No. 92-3630·Published·Cited by 2 cases

Opinion

PER CURIAM.

We must reverse O’Brian’s conviction for attempted manslaughter and remand for a new trial because a jury instruction was given on attempted manslaughter by culpable negligence, a non-existent crime in Florida. Taylor v. State, 444 So.2d 931 (Fla.1983); Arline v. State, 550 So.2d 1180 (Fla. 1st DCA 1989). We also remand for resentencing on O’Brian’s conviction for aggravated battery (a second-degree felony), as the State concedes that the sentence was improperly enhanced to a first-degree felony under section 775.087(1), Florida Statutes (1991), based upon O’Brian’s use of a weapon in committing the offense.

BOOTH, MICKLE and BENTON, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM.

We must reverse O’Brian’s conviction for attempted manslaughter and remand for a new trial because a jury instruction was given on attempted manslaughter by culpable negligence, a non-existent crime in Florida. Taylor v. State, 444 So.2d 931 (Fla.1983); Arline v. State, 550 So.2d 1180 (Fla. 1st DCA 1989). We also remand for resentencing on O’Brian’s conviction for aggravated battery (a second-degree felony), as the State concedes that the sentence was improperly enhanced to a first-degree felony under section 775.087(1), Florida Statutes (1991), based upon O’Brian’s use of a weapon in committing the offense.

BOOTH, MICKLE and BENTON, JJ., concur.

O'Brian v. State, 649 So. 2d 336, 1995 Fla. App. LEXIS 574, 1995 WL 33547 (Fla. Ct. App. 1995).

Pincite

649 So. 2d 336 (O'Brian v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related