Summary
In O'Brian, 649 So.2d 336, the defendant was convicted of the nonexistent crime of attempted manslaughter by culpable negligence.
Summary of this case from Lewellen v. StateOpinion
No. 92-3630.
January 31, 1995.
An Appeal from the Circuit Court for Okaloosa County; Ben Gordon, Judge.
Nancy A. Daniels, Public Defender, and Nada M. Carey, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and Sonya Roebuck Horbelt, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, for appellee.
We must reverse O'Brian's conviction for attempted manslaughter and remand for a new trial because a jury instruction was given on attempted manslaughter by culpable negligence, a non-existent crime in Florida. Taylor v. State, 444 So.2d 931 (Fla. 1983); Arline v. State, 550 So.2d 1180 (Fla. 1st DCA 1989). We also remand for resentencing on O'Brian's conviction for aggravated battery (a second-degree felony), as the State concedes that the sentence was improperly enhanced to a first-degree felony under section 775.087(1), Florida Statutes (1991), based upon O'Brian's use of a weapon in committing the offense.
BOOTH, MICKLE and BENTON, JJ., concur.