Presley v. State

682 So. 2d 601, 1996 Fla. App. LEXIS 11134, 1996 WL 613442

Opinion

BLUE, Judge.

Craig R. Presley appeals Ms convictions for attempted tMrd-degree murder and armed burglary. We reverse Presley’s attempted third-degree murder conviction because it is a nonexistent crime. State v. Gray, 654 So.2d 552 (Fla.1995). We remand for retrial on any lesser offense instructed on at trial. State v. Wilson, 680 So.2d 411 (Fla.1996).

We also reverse and remand for a new trial on the armed burglary conviction. When instructing the jury, the trial court included attempted third-degree murder as one of the crimes forming an element of the crime of armed burglary. The jury’s verdict contained no indication of wMch crime the jury predicated its determination of guilt upon. Because it is impossible to determine on which theory, including attempted third-degree murder, the jury used to base the armed burglary conviction, we are compelled to reverse. See Mills v. Maryland, 486 U.S. 367, 376, 108 S.Ct. 1860, 1866, 100 L.Ed.2d 384, 395 (1988); Tape v. State, 661 So.2d 1287 (Fla. 4th DCA 1995).

Reversed and remanded.

ALTENBERND, A.C.J., and FULMER, J., concur.