Mack v. State

PER CURIAM.

The court, sua sponte, withdraws its opinion herein dated January 29, 2003, and substitutes the following opinion.

The appellant raised for our consideration two issues: (1) whether section 827.03(l)(b), Florida Statutes (2001) relating to child abuse is unconstitutional therefore appellant Craig Lanard Mack’s conviction for attempted child abuse must be vacated; and (2) assuming the constitutionality of section 827.03(l)(b), Florida Statutes, there was no evidence supporting Mack’s conviction for attempted child abuse.

As to the first issue, we note that section 827.03(l)(b) was determined to be constitutional by the Florida Supreme Court in DuFresne v. State, 826 So.2d 272 (Fla.2002). As to the second issue, our review of the record leads us to the conclusion that there is no evidence supporting Mack’s conviction for attempted child abuse and Mack’s motion for judgment of acquittal should have been granted.

Accordingly, Mack’s conviction for attempted child abuse is hereby reversed.