ZELLARS v. STATE (1999)

We are asked to review Zellars v. State, 707 So.2d 345 (Fla.App. 5th District 1998), in which the Fifth District Court of Appeal certified on motion for rehearing the following question to be one of great public importance:

HAS THE LEGISLATURE AUTHORIZED A CONVICTION FOR ATTEMPT TO COMMIT AN AGGRAVATED OFFENSE WHERE THE AGGRAVATING FACTOR DOES NOT RESULT AND WHERE THE ATTEMPTED AGGRAVATED OFFENSE IS OF A GREATER DEGREE THAN THE CORE OFFENSE?

Zellars, 707 So.2d at 349.

Under article V, section 3(b)(4) of the Florida Constitution, this Court has jurisdiction to review “any decision of a district court of appeal that passes upon a question certified to it to be of great public importance.”  (Emphasis added.)   Because the district court did not decide the question certified to this Court in rendering its decision, we are without jurisdiction to review this case.   See Gee v. Seidman & Seidman, 653 So.2d 384 (Fla.1995).

The district court held that the evidence in this case was sufficient to allow the trial judge to submit the charge to the jury.  707 So.2d at 346.   The court also reversed the sentence and remanded because the court found that the record did not support the reasons given by the trial judge for a sentence departing upwardly from the sentencing guidelines.  Id. at 347.   In a special concurrence, Judge Cobb questioned the State's prosecution of the petitioner on a charge of attempted aggravated battery rather than simple battery.  Id. However, the district court's decision does not construe the statute under which petitioner was charged and convicted.   Thus, the certified question as to legislative intent is not a question the district court actually “passed upon” in rendering its decision.

Accordingly, we dismiss this cause for lack of jurisdiction.

It is so ordered.

WELLS, J.

HARDING, C.J., SHAW, ANSTEAD and PARIENTE, JJ., and OVERTON and KOGAN, Senior Justices, concur.