Reno v. State

District Court of Appeal of Florida

Reno v. State

121 So. 3d 1174, 2013 WL 5309811, 2013 Fla. App. LEXIS 15065

CourtDistrict Court of Appeal of Florida

DecidedSeptember 23, 2013

DocketNo. 1D12-3163

StatusPublished

This text of 121 So. 3d 1174 (Reno v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Reno v. State, 121 So. 3d 1174, 2013 WL 5309811, 2013 Fla. App. LEXIS 15065 (Fla. Ct. App. 2013).

Pincite

Opinion

PER CURIAM.

We reverse Appellant’s conviction for attempted second-degree murder because the evidence presented at trial was legally insufficient to establish the “depraved mind” element of that offense. See § 782.04(2), Fla. Stat. (2011) (defining second-degree murder). Of the two lesser-included offenses on which the jury was instructed, the evidence and the jury’s verdict were sufficient to establish only improper exhibition of a firearm. Under the [1175]*1175mandatory language of section 924.34, Florida Statutes (2011), we therefore remand this case for the trial court to enter a judgment of conviction for improper exhibition of a firearm and resentence him accordingly. See State v. Sigler, 967 So.2d 835, 844 (Fla.2007) (recognizing that section 924.34 applies to a permissive lesser-included offense where the jury’s verdict necessarily includes a finding of guilt as to that offense); Festa v. State, 927 So.2d 1049, 1051-52 (Fla. 4th DCA 2006) (holding that the State does not have a second opportunity to prove a lesser-included offense where the evidence of the greater offense was insufficient at a jury trial and the jury was not instructed on the lesser offense).

REVERSED and REMANDED with instructions.

WOLF, ROBERTS, and RAY, JJ„ concur.

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

PER CURIAM.

We reverse Appellant’s conviction for attempted second-degree murder because the evidence presented at trial was legally insufficient to establish the “depraved mind” element of that offense. See § 782.04(2), Fla. Stat. (2011) (defining second-degree murder). Of the two lesser-included offenses on which the jury was instructed, the evidence and the jury’s verdict were sufficient to establish only improper exhibition of a firearm. Under the [1175]*1175mandatory language of section 924.34, Florida Statutes (2011), we therefore remand this case for the trial court to enter a judgment of conviction for improper exhibition of a firearm and resentence him accordingly. See State v. Sigler, 967 So.2d 835, 844 (Fla.2007) (recognizing that section 924.34 applies to a permissive lesser-included offense where the jury’s verdict necessarily includes a finding of guilt as to that offense); Festa v. State, 927 So.2d 1049, 1051-52 (Fla. 4th DCA 2006) (holding that the State does not have a second opportunity to prove a lesser-included offense where the evidence of the greater offense was insufficient at a jury trial and the jury was not instructed on the lesser offense).

REVERSED and REMANDED with instructions.

WOLF, ROBERTS, and RAY, JJ„ concur.

Cite This Page — Counsel Stack

Bluebook (online)

121 So. 3d 1174, 2013 WL 5309811, 2013 Fla. App. LEXIS 15065, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reno-v-state-fladistctapp-2013.

Opinion

Related

Cite This Page — Counsel Stack