Reno v. State , 2013 Fla. App. LEXIS 15065 ( 2013 )

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 mandatory 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.