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121 So. 3d 1174

Reno v. State

District Court of Appeal of Florida

Decided September 23, 2013

District Court of Appeal of Florida · decided 2013-09-23

Relies on 967 So. 2d 835 - State v. Sigler · 927 So. 2d 1049 - Festa v. State

Decided 2013-09-23

PER CURIAM.

¶1We 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 *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).

¶2REVERSED and REMANDED with instructions.

WOLF, ROBERTS, and RAY, JJ„ concur.
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