Supreme Court of Florida

In a prosecution of defendant for first-degree felony murder, the Third District's judgment instructing the trial court to enter a judgment of conviction for attempted second-degree murder is quashed and remanded where: 1) a case-by-case determination is needed when deciding whether attempted second-degree murder is a permissive lesser-included offense of attempted first-degree felony murder; and 2) section 924.34 did not apply to this case because the allegations in the charging document and the proof at trial did not support the element of a depraved mind without regard for human life, and the jury did not determine all of the elements of the lesser offense.

Appellate Information

• Decided 04/02/2010
• Published 04/02/2010

Judges

• QUINCE, C.J.

Court

• Supreme Court of Florida

Counsel

• For Appellees:
  
• Carlos J. Martinez, Public Defender, and Harvey J. Sepler, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, for Petitioner/Cross Respondent., Bill McCollum, Attorney General, Tallahassee, FL, Richard L. Polin, Bureau Chief, and Timothy R.M. Thomas, Assistant Attorneys General, Miami, FL, for Respondent/Cross Petitioner.