Florida/Georgia Personal Injury & Workers Compensation

...e State presented legally sufficient evidence of a specific intent to kill. Therefore, we conclude that competent, substantial evidence does not exist to support the jury verdict of kidnapping with intent to commit homicide. Accordingly, pursuant to section 924.34, Florida Statutes (1997), [17] we reverse the judgment of guilt of kidnapping and direct the trial court on remand to enter judgment for false imprisonment, and to resentence Crain accordingly....

...; Mungin, 689 So.2d at 1029-30 (concluding that error in instructing on felony murder was "clearly harmless" where evidence supported conviction for felony murder and the jury properly convicted defendant of first-degree murder on this theory). [17] Section 924.34 provides: When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily in...

...e against her. As discussed above, we reverse Coolen's conviction for first-degree murder and vacate his death sentence. However, we find sufficient evidence in the record to sustain a conviction of second-degree murder. [5] Thus, in accordance with section 924.34, Florida Statutes (1995), this case is remanded to the trial court with instructions to enter a judgment for second-degree murder and to sentence Coolen accordingly....

...The state has produced no competent evidence directly inconsistent with appellant's version of how the shooting occurred. Because the jury found premeditated murder instead of felony murder and there is insufficient evidence to support premeditated murder, I believe we have no other recourse under section 924.34, Florida Statutes (1985), than to direct the trial court to enter judgment for second-degree murder....

...Although we find the evidence in this case is insufficient to support Green's conviction for first-degree murder, we do find that the evidence is consistent with an unlawful killing. Consequently, we reverse Green's conviction for first-degree murder and vacate his death sentence, and, in accordance with section 924.34, Florida Statutes (1997), we remand this case to the trial court with instructions to enter a judgment for second-degree murder and to sentence Green accordingly....

...We have on appeal a decision from the Fourth District Court of Appeal declaring invalid a state statute. Sigler v. State, 881 So.2d 14 (Fla. 4th DCA 2004). We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we affirm the district court's determination that application of section 924.34, Florida Statutes (2001), in this instance, is contrary to the Sixth Amendment right to jury trial....

...r, a passenger, could be convicted as a principal. Therefore, the district court reversed the conviction for depraved mind second-degree murder based on a lack of evidentiary support. See Sigler I, 805 So.2d at 35. The Fourth District indicated that section 924.34, Florida Statutes (2001), allows an appellate court to reverse a judgment and direct the trial court to enter a judgment for a necessarily lesser-included offense....

...The defendant in Pratt was convicted of attempted third-degree felony murder, which was no longer a crime after this Court's decision in State v. Gray, 654 So.2d 552 (Fla.1995). On appeal the State argued that the defendant was not entitled to a new trial but that pursuant to section 924.34, the appellate court should direct the trial court to enter a conviction on the offense of attempted manslaughter, a necessarily lesser-included offense to the charged offense of attempted second-degree murder with a weapon. The district court rejected the State's argument and said: Were we to adopt the state's position and direct entry of judgment for attempted manslaughter (an intent crime) pursuant to section 924.34, we necessarily would be acting as the fact-finder and would have to assume the presence of the requisite intent....

...Pratt, 668 So.2d at 1009. On discretionary review in this Court, we approved the decision of the district court and remanded the case for proceedings based on any lesser offense that had been instructed on at trial. Likewise, the Fourth District opined that section 924.34 did not control the case because the statute does not control over the United States Supreme Court decision of Apprendi v....

...2531, 159 L.Ed.2d 403 (2004), the court said that the Supreme Court reiterated the importance of the jury's determination of all of the elements of a crime. Thus, the court concluded that "these later decisions [ Apprendi and Blakely ] make it clear beyond any doubt that section 924.34 as interpreted in I.T....

...While the State argues a third-degree murder conviction would not be manifest injustice, the State has failed to demonstrate why the Fourth District's holding in this instance is error. Therefore, we affirm the Fourth District on this issue. II Constitutionality of Section 924.34 The real thrust of the State's argument to us is that the Fourth District *841 erred in not applying section 924.34 and the decision in I.T....

...The State maintains that application of this statutory provision and case law allows the appellate court to direct a conviction for the lesser offense of third-degree murder. Sigler, on the other hand, argues that the district court correctly held section 924.34 unconstitutional as applied to him....

...Sigler further asserts the district court incorrectly held that an escaped prisoner can be guilty of harboring himself under a principal theory, and that he cannot be convicted of third-degree felony murder with harboring as the underlying felony. Thus, the issue before this Court is whether application of section 924.34, Florida Statutes, to the facts of this case is a violation of Sigler's right to a trial by jury. We hold that to the extent that section 924.34 can be interpreted to allow entry of a conviction by an appellate court for a crime where the jury has not determined all of the elements of that crime beyond a reasonable doubt, section 924.34 is a violation of the Sixth Amendment right to a trial by jury....

...McGrath, 824 So.2d 143 (Fla.2002); Dep't of State v. Martin, 885 So.2d 453, 456 (Fla. 1st DCA 2004) (citing Racetrac Petroleum, Inc. v. Delco Oil, Inc., 721 So.2d 376, 377 (Fla. 5th DCA 1998)), aff'd, 916 So.2d 763 (Fla.2005). We apply this standard in interpreting section 924.34. Section 924.34, Florida Statutes, [2] entitled "When evidence sustains only conviction of lesser offense," provides: When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does es...

...cessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser-included offense. In this Court's earlier interpretation of section 924.34, we held this section was only applicable when the crime charged has lesser statutory degrees or where there are necessarily lesser-included offenses of the crime charged....

...is misplaced as the situation addressed in I.T. is distinguishable from the facts and circumstances of this case. In I.T. this Court was asked *842 to determine whether the district court could direct the trial court to enter a judgment pursuant to section 924.34 for a permissive lesser-included offense....

...followed this Court's Gould decision and held an appellate court could only direct adjudication for a necessarily lesser-included offense not a permissive lesser-included offense. On review, while finding the petition in I.T. insufficient to include a charge of trespass, we nonetheless held that section 924.34 does allow an appellate court to direct a trial court to enter an adjudication or judgment for a permissive lesser-included offense where supported by the allegations in the charging document and the proof at trial....

...Because the jury verdict under the facts of this case did not include such a finding, the appellate court could not direct the trial court to enter a judgment for third-degree murder. Any such judgment would be a violation of the defendant's right to a trial by jury in violation of the Sixth Amendment. To the extent that section 924.34 can be read to provide for conviction of an offense whose elements have not been determined by the jury, it would be unconstitutional. Otherwise, when all of the elements of a lesser offense have been determined by the jury, section 924.34 is a valid exercise of the legislative prerogative allowing appellate courts to direct a judgment for such an offense. III Other Issues Raised This case came to this Court based on the fact that the district court expressly held section 924.34 invalid....

...conviction for manslaughter by culpable negligence. This issue likewise was not addressed by the district court, and we decline to do so in this appeal. CONCLUSION For all of the reasons expressed above, we affirm the decision in Sigler II and hold section 924.34, Florida Statutes, unconstitutional only to the extent that it can be read to allow the appellate court to direct entry of judgment for a lesser-included offense when all of the elements of the lesser-included offense have not been found by a jury beyond a reasonable doubt....

...2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), apply to the circumstances of this case. [5] Instead, I am convinced that in I.T. v. State, 694 So.2d 720 (Fla.1997), this Court misinterpreted section 924.34, Florida Statutes, to include permissive lesser-included offenses. Under the plain meaning of section 924.34, courts only have the authority to enter a judgment for lesser degree offenses or necessarily lesser-included offenses, not permissive lesser-included offenses. Given this misinterpretation of section 924.34, I would recede from I.T. and hold that the Fourth District in this case did not have the authority to instruct the trial court to enter a judgment for the permissive lesser-included offense of third-degree felony murder. As Justice Harding noted in his dissent in I.T., section 924.34 is clear and unambiguous....

...gree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser-included offense. § 924.34, Fla....

...Clearly, this provision only refers to lesser degree offenses and necessarily lesser-included offenses. It does not mention permissive lesser-included offenses. Thus, when the evidence at trial is insufficient to support the offense for which the jury found the defendant guilty, the plain language of section 924.34 only authorizes courts to enter a judgment for lesser degree offenses or necessarily lesser-included offenses. In other words, in order to enter a judgment for the lesser offense *846 pursuant to section 924.34, the lesser offense must either be lesser in degree or consist of fewer of the same constituent elements as the greater offense. See Williams v. State, 957 So.2d 595, 598 (Fla. 2007) ("Necessarily lesser-included offenses are those offenses in which the statutory elements of the lesser-included offense are always subsumed within those of the charged offense."). Because section 924.34 does not authorize a court to enter a judgment for a permissive lesser-included offense, I would recede from I.T....

...directions to the trial court to enter judgment for such lesser degree or offense necessarily included in the charge and pass sentence accordingly, unless some other matter or thing appearing in the record makes it advisable that a new trial be had. § 924.34, Fla....

...2348) (emphasis added). Here, however, finding a harboring and entering a judgment for third-degree murder does not enhance Sigler's sentence beyond the sentence for second-degree murder. See § 782.04(2), (4), Fla. Stat. (1997). [6] However, under section 924.34, the trial court has the authority to enter a judgment for the necessarily lesser-included offense of manslaughter. See § 782.07, Fla. Stat. (1997); Fla. Std. Jury Instr. (Crim.), Schedule of Lesser-included Offenses. Indeed, entering a judgment for manslaughter would not run afoul of the majority's application of Apprendi and Blakely to section 924.34.

...tes (2001). Coicou, 867 So.2d at 412 . The district court agreed that Coicou’s conviction and sentence for attempted felony murder should be reversed. However, the court did not agree that Coicou should be discharged. Id. The court held that under section 924.34, Florida Statutes (2001), Coicou’s conviction should be reduced to a permissive lesser-included offense, attempted second-degree murder. Id. In making this determination, the court relied on this Court’s holding in I.T. v. State, 694 So.2d 720 (Fla.1997), which held that section 924.34 refers to both category one necessarily lesser-included offenses and category two permissive lesser-included offenses....

...We accepted jurisdiction to answer the certified question. *240 ANALYSIS The question before this Court is whether the jury’s verdict of guilty on the charge of attempted first-degree felony murder provided an adequate basis for directing — pursuant to section 924.34 — the entry of a conviction for attempted second-degree murder....

...the Third District acknowledged that the prosecution used the same act, the shooting of the victim, to prove both the attempted felony murder and the underlying robbery offense. Id. at 411-12 . However, the district court determined that pursuant to section 924.34, Florida Statutes (2001), Coicou’s conviction should be reduced to the lesser-included offense of attempted second-degree murder. Id. at 412 . The district court reasoned that the evidence contained in the record supported a conviction for attempted second-degree murder. Id. We disagree. Section 924.34, Florida Statutes (2001), entitled “When evidence sustains only conviction of lesser offense,” provides: When the appellate court determines that the evidence does not prove the offense for which the defendant was *242 found guilty...

...ecessarily included in the offense charged,-the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense. In I.T., 694 So.2d at 724 , we held that section 924.34 extends to, include both necessarily and permissive lesser-included offenses. 3 Further, “section 924.34 ......

...issive lesser-included offense where supported by the allegations in the charging document and, the proof at trial.” State v. Sigler, 967 So.2d 835, 842 (Fla.2007) (emphasis added) (citing I.T., 694 So.2d at 724 ). Moreover, we held in Sigler that section 924.34 permits an appellate court to direct a judgment for a lesser-included offense when the jury determines ah of the elements of the lesser offense....

...does not.”). Moreover, there is no indication that the jury found the “depraved mind” element of attempted second-degree murder. Thus, the jury in this case did not find all of the elements of the lesser offense. See Sigler, 967 So.2d at 844 . Section 924.34 does not permit an appellate court-to' direct entry of a conviction for a crime where the jury has not determined all of the elements of that crime beyond a reasonable doubt. To do so would amount to a violation of the defendant’s Sixth *244 Amendment right to a trial by jury. See id. at 841, 844 . Accordingly, pursuant to section 924.34, Florida Statutes (2001), it was improper for the Third District to remand to the trial court with directions to enter a judgment of conviction for attempted second-degree murder....

...CONCLUSION For the reasons set forth above, we hold that a case-by-case determination is warranted when deciding whether attempted second-degree murder is a permissive lesser-included offense of attempted first-degree felony murder. Additionally, we hold that 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....

...incident that occurred in the parking lot. Because this record clearly establishes the petitioners' guilt of aggravated assault with a deadly weapon, which is a necessarily lesser included offense of robbery with a firearm, we find that, pursuant to section 924.34, Florida Statutes (1983), [3] they may *47 be convicted of aggravated assault with a deadly weapon....

...or off the premises and without warrant, any person he has probable cause to believe has committed theft of merchandise in a retail or wholesale establishment." The legislature added the underscored language in 1973. See ch. 73-271, Laws of Fla. [3] Section 924.34 provides: When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish his guilt of a lesser statutory degree of the offense or a lesser offense necessaril...

...This single remark, however, did not warrant a mistrial. Further, in view of the entire record, we find beyond a reasonable doubt that the error was harmless. In accordance with our determination that the record supports a conviction for second-degree murder, section 924.34 of the Florida Statutes (1991) [2] authorizes us to remand this case to the trial court with instructions to enter judgment against Kirkland for second-degree murder and sentence him accordingly....

...of the offense or a lesser offense not necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense. § 924.34, Fla....

...1(4)(a) for sexual battery on a physically helpless victim. The district court concluded that these convictions were not supported by the evidence. However, rather than vacating these convictions, the district court, under the purported authority of section 924.34, Florida Statutes (1985), directed the trial court to adjudicate Gould guilty of sexual battery under section 794.011(5) as a necessarily included lesser offense. On this issue, we quash the decision of the district court. Section 924.34, Florida Statutes (1985) provides: When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish his guilt of a lesser statutory degree of the offense or a...

...3d DCA 1976) (section 794.011(5) sexual battery is not a necessarily included lesser offense of sexual battery under section 794.011(3) because the latter could be proven without proving the actual use of force, an essential element of section 794.011(5)). The state urges us to accept the district court's view that section 924.34 also applies to permissive lesser-included offenses that are supported by the accusatory pleadings and evidence adduced at trial. However, the express and unambiguous language of section 924.34, referring specifically to "a lesser offense necessarily included in the offense charged," precludes such a view....

...tery with force not likely to cause serious injury was a permissive lesser-included offense and not a necessarily included lesser offense. We recede from Gallo to the extent that it can be so interpreted. [7] Because we resolve this issue by finding section 924.34 applicable only to necessarily included lesser offenses, we need not reach the conflict raised by Wilcott v....

825, 192 So. 402; Douglas v. State, supra. Section 924.34, Fla. Stats. 1941, confers upon the Supreme

...f premeditation. Therefore, the evidence is insufficient to prove premeditation, and the conviction for first-degree murder is reversed. We do find, however, sufficient evidence to sustain a conviction of second-degree murder. [3] In accordance with section 924.34, Florida Statutes (1979), this case is remanded to the trial court with instructions to enter a judgment and sentence for second-degree murder....

...As in the instant case, the district court of appeal found that G.C.'s conduct did constitute trespass to a conveyance and ordered that adjudication of delinquency be entered on that charge. Because trespass to a conveyance is not a necessarily lesser included offense of grand theft, G.C. argued that section 924.34, Florida Statutes [1] prohibited the court from adjudicating *722 him delinquent on that ground. Section 924.34 provides: 924.34 When evidence sustains only conviction of lesser offense.—When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish his guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense. § 924.34, Fla.Stat. (1995). The district court of appeal held that (1) chapter 924 does not apply to juvenile cases, which are instead governed by chapter 39, or, alternatively, (2) section 924.34 applies to permissive lesser included offenses as well as necessarily lesser included offenses....

...In Gould, the adult defendant was found guilty of—among other things—sexual battery under section 794.011(4)(a), Florida Statutes (1985). The Second District Court of Appeal concluded that the conviction was not supported by the evidence. Instead of vacating the conviction, however, the court relied on section 924.34 to adjudicate Gould guilty of sexual battery under section 794.011(5), Florida Statutes (1985)....

...ashed the part of the decision directing that Gould be adjudicated guilty on the basis of that statutory section. We held that permissive lesser-included offenses which are supported by the charging document and the facts are not within the scope of section 924.34, which by its express language only encompasses lesser offenses necessarily included in the offense charged....

...court discharged a juvenile who had been incorrectly adjudicated delinquent of grand theft of a motor vehicle, instead of entering adjudication on the basis of a permissive lesser-included offense such as trespass to a conveyance. The court held that Gould mandated that section 924.34 only allowed substitution of necessarily lesser included offenses....

...This Court rightly recognized that section 39.14, Florida Statutes (1981), governed the state's right to appeal in the juvenile context at that time, and thus "trumped" the two sections of chapter 924 then at issue. [3] However, in the present analysis, we find no counterpart in chapter 39 to section 924.34. Additionally, we find nothing to persuade us that the legislature intended to treat juveniles differently than adults in this context. Therefore, we find that C.C. is not controlling. Because we hold section 924.34 applicable to juvenile proceedings, it becomes necessary for us to decide whether Gould overruled our holding in G.C....

...[6] The contents of section 919.16, Florida Statutes (1965), were adopted as Florida Rule of Criminal Procedure 3.510 in 1967. [7] This statute was thereafter repealed in 1970 by chapter 70-339, section 180, Laws of Florida. In section 161 of the same session law, the legislature amended section 924.34, Florida Statutes, to its current form to clarify and simplify the substance of the prior version of the statute....

...[8] However, this amendment did not change the use of the language "necessarily included in the offense charged." Based on the similarity between the language in the former section 919.16 ("offense *724 which is necessarily included in the offense charged") and current section 924.34 ("lesser offense necessarily included in the offense charged"), it naturally follows from Brown that the substantially similar language in section 924.34 should be read as statutory support consistent with the inherent powers of an appellate court to modify the trial court's judgment and direct the trial court to enter judgment for a necessarily lesser included offense, or if the charge and proof are present, the permissive lesser included offense. This reasoning was not presented to us in Gould, although it is essentially the analysis of section 924.34 written by Judge Cope in G.C. Given the fact that Brown has been a landmark of our jurisprudence, there is no logical reason to read section 924.34 to eliminate category 4 (now category 2) of the Brown decision. Hence, we hold that section 924.34 refers to both category 1 necessary lesser included offenses and category 2 permissive lesser included offenses....

...HARDING, J., concurs in result only with an opinion, in which KOGAN, C.J. and ANSTEAD, J., concur. HARDING, J., concurring in result only. Although I agree that the adjudications in the instant case should not have been affirmed, I respectfully disagree with the majority's interpretation of section 924.34, Florida Statutes (1995). I believe the language used in that section is clear. Accordingly, I would hold that section 924.34 applies only to offenses necessarily included in the offense charged. I believe the majority's reliance on Judge Cope's reasoning in the District Court of Appeal's G.C. opinion is misplaced. G.C. was primarily concerned with the issue of whether Florida's omnibus theft statute required a finding of specific intent; section 924.34 was a minor issue in our disposition of that case. Because our ruling in Gould thoroughly analyzed the policy underlying section 924.34, as well as the ramifications of extending it to include permissive lesser-included offenses, I believe Gould is the better case for us to follow here. I would therefore follow Gould, but recede from G.C. to the extent it holds that section 924.34 applies to permissive lesser offenses. I do, however, agree with the majority's decision that the adjudications of delinquency in the instant case must be vacated. KOGAN, C.J. and ANSTEAD, J., concur. NOTES [1] Section 924.34, Florida Statutes (1995), is identical to section 924.34, Florida Statutes (1989)....

...directions to the trial court to enter judgment for such lesser degree or offense necessarily included in the charge and pass sentence accordingly, unless some other matter or thing appearing in the record makes it advisable that a new trial be had. § 924.34, Fla.Stat....

...The Third District Court of Appeal reversed the conviction and sentence for attempted felony murder, citing this Court's intervening decision in State v. Gray, 654 So.2d 552 (Fla.1995), where we held that the crime of attempted felony murder no longer existed in Florida. The state argued that under section 924.34, Florida Statutes (1995), [1] the district court should direct the lower court to enter judgment on the basis of one of the lesser included offenses....

...For these reasons, we answer the certified question as explained above and remand to the trial court for retrial on any lesser offense instructed on at trial. It is so ordered. KOGAN, C.J., and OVERTON, SHAW, GRIMES, WELLS and ANSTEAD, JJ., concur. NOTES [1] The section provides: 924.34 When evidence sustains only conviction of lesser offense....

...gree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense. § 924.34, Fla.Stat....

...Because Jaimes was convicted of an offense based on elements that were never charged, we find that due process was violated and fundamental error occurred. See Gray, 435 So.2d at 818. Accordingly, we quash the district court's decision affirming Jaimes's conviction on the challenged count of aggravated battery. REMEDY Under section 924.34, Florida Statutes (2010), when an appellate court vacates a conviction but determines that the evidence establishes the defendant's guilt as to a lesser included offense, "the appellate court shall reverse the judgment and direct the trial court to enter judgment for the ....

...Accordingly, the conviction of battery of a law enforcement officer pursuant to section 784.07 and the sentence in case number 91-1160 is reversed and the cause remanded for entry of a judgment of conviction and sentence on the lesser included offense of simple battery pursuant to section 784.03. See § 924.34, Fla....

...ncluded in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense."); Gould v. State, 577 So.2d 1302, 1305 (Fla. 1991) (section 924.34 applies only to "`a lesser offense necessarily included in the offense charged'."); Shaara v....

...1st DCA 1991) (where the defendant's convictions for sexual battery with a deadly weapon under section 794.011(3) necessarily determined the essential statutory elements of sexual battery by threats to use force likely to cause serious personal injury under section 794.011(4)(b), the appellate court has authority under section 924.34 to reverse the erroneous convictions and remand with directions to adjudicate the defendant guilty of the lesser offense on each of those counts)....

...The district court of appeal reversed the armed robbery conviction of Smith because there had been only one forceful taking. See Brown v. State, 430 So.2d 446 (Fla. 1983); Hill v. State, 293 So.2d 79 (Fla. 3d DCA 1974). However, under the authority of section 924.34, Florida Statutes (1989), the court directed the entry of a judgment of conviction for the crime of aggravated assault with a deadly weapon committed against Smith. The court acknowledged that aggravated assault with a deadly weapon was a category-two permissive lesser included offense to armed robbery but concluded that section 924.34 was applicable to both category-one and category-two lesser included offenses. Contrary to the rationale of the court below, this Court in Gould v. State, 577 So.2d 1302 (Fla. 1991), recently held that section 924.34 was inapplicable to category-two permissive lesser included offenses....

...Thus, the State argues that while the court below erroneously characterized aggravated assault with a deadly weapon as a permissive lesser included offense of armed robbery, it properly directed entry of the judgment of conviction for aggravated assault under section 924.34....

...In any event, we hereby reiterate that aggravated assault is not a category-one necessarily lesser included offense of armed robbery. As a consequence, once the court below concluded that the robbery of Smith could not stand, the court was not at liberty under section 924.34 to reduce the conviction to the category-two permissive lesser included offense of aggravated assault....

...h without any premeditated design to effect the death of any particular individual." § 782.04(2), Fla. Stat. (1987). Based upon the record in this case, we find sufficient evidence to sustain a conviction of second-degree murder. In accordance with section 924.34, Florida Statutes (1991), this case is remanded to the trial court with instructions to enter a judgment for second-degree murder and sentence the appellant accordingly....

...nd judgment as discussed above, there does appear to be sufficient evidence to justify a verdict and judgment of second degree murder. Taylor v. State, 156 Fla. 122, 22 So.2d 639; Purkhiser v. State, 210 So.2d 448 (Fla. 1968). Therefore, pursuant to Section 924.34, Florida Statutes, F.S.A., the judgment of conviction for first degree murder is reversed and the cause remanded to the trial court with directions to enter an appropriate sentence for murder in the second degree....

and enter or pass sentence accordingly. See Section 924.34, supra. THOMAS, C. J., and SEBRING, J., concur

...51, Florida Statutes (Supp.1996), is inapplicable to juvenile delinquency proceedings. The court certified the above question. The state points out that in I.T. v. State, 694 So.2d 720 (Fla.1997), this Court held that a section of chapter 924, i.e., section 924.34, [2] applies to juvenile proceedings....

...The district court found that the evidence presented at trial did not sustain a charge of grand theft, but it did sustain a charge of trespass in a conveyance and ordered the trial court to enter an adjudication of delinquency based on that charge. 694 So.2d at 721. On review, this Court held that section 924.34, [4] "which allows an appellate court to sustain a conviction of a lesser offense when the evidence does not prove the charged offense, applies to juvenile proceedings. Id. at 722. We reasoned that section 924.34 also applies to juveniles because chapter 39, the juvenile statute, contains no comparable language addressing this issue....

...Therefore, I would grant the State's motion for rehearing. PARIENTE, J., concurs. NOTES [1] The legislature recently transferred the portions of chapter 39 relating to juvenile delinquency proceedings to chapter 985, effective October 1, 1997. See Ch. 97-238, Laws of Fla. [2] Section 924.34 states: 924.34 When evidence sustains only conviction of lesser offense.—When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish his guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense. § 924.34, Fla....

...Such conduct fits within the definition of culpable negligence, which allows a homicide conviction, but only as manslaughter. See § 782.07(1). Accordingly, we reverse and remand with directions to enter a judgment of conviction for the lesser-included offense of manslaughter and to resentence Mr. Light accordingly. See § 924.34, Fla....

...uilty because he smoked the same cigarette. When the evidence does not prove the offense of which the defendant was convicted but does establish his guilt of a lesser included offense, an appellate court should enter judgment for the lesser offense. § 924.34, Fla....

...It is my firm opinion, however, that the cases should not be remanded for a new trial but, rather, that the lower court should be directed to enter a judgment finding Harold Johnson guilty of manslaughter, and finding Alton Johnson guilty of accessory before the fact to manslaughter. Section 924.34, Fla....

...(1977)] and contends inter alia that the state failed to establish a prima facie case of second degree murder and that the trial court should therefore have entered a judgment of acquittal upon his motion made at the close of all the evidence at trial. We agree in part and reduce the judgment of conviction to manslaughter. § 924.34, Fla....

...On the contrary, the State points out that the appellants were guilty of a very serious offense, in some degree less vicious than the offense charged but nonetheless serious, and that this Court should dispose of the case in accordance with the provisions of Section 924.34, Florida Statutes, F.S.A., which reads as follows: "In a case where the offense is divided into degrees or necessarily includes lesser offenses, and the appellate court is of the opinion that the evidence does not prove the degree or o...

...acy as defined by Section 833.01, Florida Statutes, F.S.A., and the appellant, Armstrong, contends for the same proposition. None of the appellants seriously claims that he was completely innocent of all crime under the circumstances. An analysis of Section 924.34, Florida Statutes, F.S.A., supra, will reveal that in order for it to be applicable, the offense charged must be one divisible into degrees or it must be one which necessarily includes a lesser offense for which a defendant in a particular case might be found guilty....

...llant, as principal, acted with ill will, hatred, spite or an evil intent; therefore, consistent with the teaching of Duckett and Ellison, appellant's conviction for depraved mind second-degree murder lacks evidentiary support, and must be reversed. Section 924.34, Florida Statutes, provides that when the appellate court determines that the evidence is insufficient to sustain the offense for which the defendant was convicted, but does establish his guilt as to a necessarily included lesser offen...

...time the judgment appealed was rendered.'" Nolte v. State, 726 So.2d 307, 308 (Fla. 2d DCA 1998) (quoting Hendeles v. Sanford Auto Auction, Inc., 364 So.2d 467, 468 (Fla.1978)). Accordingly, we reverse Mr. Bledsoe's burglary conviction. Pursuant to section 924.34, Florida Statutes (1999), and the Florida Supreme Court's opinion in I.T....

..."Burglary with a battery" is a legislative combination of two separate common law crimes. Because the due process concerns implicated in Bronson are not invoked in this case, we decline to extend the ruling in Bronson to this scenario. Nor do we find that the language of section 924.34, Florida Statutes (1999), prohibits this result....

...The trial judge denied appellant's request for that instruction. Appellant argues that the case must be remanded for the entry of a conviction for simple battery on counts two and three because the evidence supported a conviction for battery, and the jury was instructed on that charge. Section 924.34, Florida Statutes (1987), provides: When the appellate court determines that the evidence does not prove the offense *484 for which the defendant was found guilty but does establish his guilt of a lesser statutory degree of the offense...

...ty of a felony of the second degree." Appellant agrees that the evidence supported a simple battery conviction. The same evidence is sufficient to show physical force and violence not likely to cause serious personal injury under section 794.011(5). Section 924.34 provides that when the appellate court determines that the evidence establishes a lesser statutory degree of the same offense, the appellate court shall reverse and direct the trial court to enter a judgment for that lesser degree of the offense....

...In both incidents it is clear that any physical force that appellant may have used in the commission of these acts was not likely to cause serious personal injury. Thus, it would appear that subsection (5) sexual battery is a "lesser statutory degree of the offense" as set forth in section 924.34....

...," and "third degree," as are homicide and arson. We feel bound, however, to apply the definition contained in Brown and hold that subsection (5) sexual battery is not a lesser statutory degree of subsection (4)(a) sexual battery for the purposes of section 924.34....

...(emphasis provided). Gallo, 491 So.2d at 543. A category two lesser offense, therefore, can constitute a "necessarily included lesser offense," and we so hold that subsection (5) sexual battery is such an offense in this case. Appellant argues that section 924.34 should not be applied in this case because he requested a jury instruction on this lesser offense, the state objected and the trial court denied the requested instruction....

...He also argues that he should not be convicted of a crime that the jury did not have the opportunity to consider and that he had no opportunity to defend against in the trial court. Although this argument has some logical appeal, we are compelled to reject it. Section 924.34 does not relate to the positions the parties assumed at trial or the instructions read to the jury. If the jury had been instructed on subsection (5) sexual battery and had nevertheless found appellant guilty as charged, he would stand in the identical posture before this court as he does now. Section 924.34 permits the appellate court to look directly to the evidence and make its own independent evaluation of that evidence....

...sier to commit, and thus the kidnapping conviction must stand. Based on the foregoing, the convictions under counts two and three are reversed with directions to enter convictions for sexual battery under section 794.011(5), Florida Statutes (1985). § 924.34, Fla....

...These facts all combined to furnish more than sufficient basis for a finding of the requisite depravity of mind to support second degree murder as included in the indictment. There being no reason appearing of record, therefore, why a new trial should be had, and pursuant to § 924.34, F.S.A., providing as follows: "In a case where the offense is divided into degrees * * * and the appellate court is of the opinion that the evidence does not prove the degree * * * of which the defendant is found guilty, but does establish...

...ned Davis to investigate the complaint. We conclude that the State did not establish a prima facie case of resisting an officer without violence. We note that there are no applicable lesser-included offenses for which we could direct a judgment. See § 924.34, Fla....

...ts dangerous effects, a grossly careless disregard of the safety and welfare of the public, and such an indifference to the rights of others as is equivalent to an intentional violation of such rights, so as to warrant a conviction for manslaughter. Section 924.34, Florida Statutes (1987), provides that "[w]hen the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish his guilt of a lesser statutory degree of the offen...

...awful killing without any premeditated design to effect the death of any particular individual. § 782.04(2), Fla. Stat. (1995). Accordingly, we reverse Randall's convictions for first-degree murder and vacate his death sentences. In accordance with section 924.34, Florida Statutes (1995), we remand this case to the trial court with instructions to enter a judgment for second-degree murder for the murder of Wendy Evans and a judgment for second-degree murder for the murder of Cynthia Pugh....

...r so as to conclude that a battery had occurred. However, the evidence would support the offense of aggravated assault, which is also a lesser-included offense of the crime charged of attempted premeditated murder. Therefore, under the provisions of section 924.34, Florida Statutes (1985), we are authorized to reverse the judgment of the trial court as to the aggravated battery conviction with directions to enter judgment for the lesser-included offense of aggravated assault on that charge and to enter sentence accordingly....

...had committed the lesser included offense of trespass to a conveyance. See § 810.08, Fla. Stat. (1987). G.C. contends that we are without authority to sustain the adjudication of delinquency on the ground that he was guilty of the lesser offense. He relies on a portion of the criminal appeals statute, section 924.34, Florida Statutes (1989), which provides: When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish his guilt of a lesser statutory degree of the offens...

...3d DCA 1981) (reducing trespass to attempted trespass) ( Brown v. State category two). We conclude that there is ample authority for sustaining the adjudication of delinquency on the basis of the lesser included offense. [2] Alternatively, even if section 924.34 were applicable, G.C. would still not be entitled to relief. The phraseology used in section 924.34, "lesser offense necessarily included in the offense charged," is substantially identical to the phrase construed in Brown, "offense which is necessarily included in the offense charged." § 919.16, Fla....

...The sole authority for the requirement that the jury be instructed on category four, as well as category three, lesser included offenses is Brown's construction of the section 919.16 phrase "offense which is necessarily included in the offense charged." It follows that the substantially identical language contained in section 924.34 will support reduction of a charge to either category of lesser included offense....

...at 1011 n. 7; see also In the Interest of R.R., 397 So.2d 1051 (Fla. 4th DCA 1981). In 1987 the classification was changed to category two. The Florida Bar re Standard Jury Instructions — Criminal, 508 So.2d 1221, 1232 (Fla. 1987). R.R. relied on section 924.34 as authority for sustaining the adjudication of delinquency on the basis of a lesser included offense....

...State and State v. C.C ., that portion of R.R. is no longer good law. [2] From a mechanical standpoint, an affirmance of an adjudication of delinquency does not involve the vacating of the adjudication and imposing a new adjudication, as is contemplated by section 924.34 in a criminal appeal....

...esser included offense of possession with intent to sell, see St. Fabre v. State, 548 So.2d 797 (Fla. 1st DCA 1989), this court could enter a judgment convicting Johnson of possession without a need to remand to the trial court for that purpose. See § 924.34, Fla....

...Since the state proved appellant committed the offense of sale of cocaine, the conviction for sale of cocaine within 1,000 feet of a school must be vacated and remanded with directions to enter a judgment of conviction and sentence for sale of cocaine, in accordance with the provisions of section 924.34, Florida Statutes....

...The supreme court approved of the First District Court's conclusion that the facts did not support a finding that Ellison acted out of ill will, hatred, spite, or an evil intent toward his victim. See State v. Ellison, 561 So.2d 576, 577 (Fla.1990). Pursuant to section 924.34, Florida Statutes (1991), we reverse Duckett's judgments on the five counts of second-degree murder (Counts 1, 4, 7, 10, and 13), and direct the trial court to enter judgments on these five counts for manslaughter, a second-degree felo...

...We therefore reverse the trafficking conviction. It is undisputed that Harris was in possession of the cocaine found on his person. Accordingly, on remand, the trial court is directed to adjudicate Harris guilty of the lesser-included offense of possession of cocaine. See § 924.34, Fla....

...*1263 We affirm that conviction and remand to the trial court for resentencing in light of our reversal of the trafficking offense. AFFIRMED in part; REVERSED in part; and REMANDED with Directions. TORPY and LAWSON, JJ., concur. NOTES [1] § 893.135(1)(b)1.a., Fla. Stat. (2005). [2] § 893.13(1)(a)(2), Fla. Stat. (2005). [3] Section 924.34, Florida Statutes (2005), provides: When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a les...

...Santiago had constructive possession of the hydrocodone and the requisite trafficking quantity of heroin, we are compelled to reverse. The proof the State presented at trial supports a conviction for the lesser-included crime of possession of heroin predicated on the quantity of the illegal drug found in plain view. See § 924.34, Fla....

...Burrell had "direct contact with the property" in which he trafficked. As explained in Goddard, section 812.019(1) is a necessarily lesser included offense of section 812.019(2). Thus, we would normally reverse and remand to the trial court with instructions to enter judgment for the lesser offense. See § 924.34, Fla....

...1st DCA 1974) ("Unquestionably the failure of appellant to keep a proper lookout and his running through the stop sign was negligence, but we are of the view that such did not constitute that high degree of negligence required for a conviction of manslaughter"). On our own motion we have considered the applicability of section 924.34, Florida Statutes (1991), to the present case....

...The appellate court under such circumstance is authorized to reverse the judgment where it is established that the accused is guilty of a lesser degree or offense necessarily included in the offense charged, directing the trial court to enter judgment for the lesser offense and pass sentence accordingly. Section 924.34, Florida Statutes, F.S.A.; Bronson v....

...ed to run concurrently. As to Platt, the sentences were initially imposed to run concurrently. The judgment of conviction of breaking and entering with intent to commit a felony on count II as to the appellant Platt is reduced pursuant to Fla. Stat. § 924.34 (1971), F.S.A....

...Nevertheless, the appellee relies upon I.T. v. State, 694 So.2d 720 (Fla.1997), in arguing that the appellant is precluded from raising the issue presented here because of his failure to comply with section 924.051(4), Florida Statutes (Supp.1996). Although the court in I.T. held that section 924.34 applies in juvenile delinquency proceedings, the court did not hold that chapter 924 is applicable generally in such proceedings....

...ove grand theft. The state properly concedes error regarding the adjudication of guilt of three counts of sexual battery with a deadly weapon, charges not made by the amended information; but we agree with the state that the trial court, pursuant to section 924.34, Florida Statutes (1989), is authorized to enter convictions for sexual battery with threat of serious force as a necessarily lesser-included offense....

...Gray, 435 So.2d 816 (Fla. 1983). The parties completely disagree, however, as to the proper remedy to correct this error. Shaara contends that we must reverse his convictions on those three counts and remand for a new trial. The state contends that we have authority under section 924.34, Florida Statutes (1989), to order the lower court to enter judgments of conviction for sexual battery with serious threat of force as charged in the amended information, since the evidence presented at trial supported Shaara's conviction of those offenses. Unfortunately, the answer to this question is not clearly discernible as it should be under carefully drawn criminal statutes. Section 924.34, Florida Statutes (1989), provides: When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish his guilt of a lesser statutory degree of the offense or a...

...Because the convictions were not supported by the *1343 evidence, the district court reversed the sexual battery convictions under section 794.011(4)(a) and directed the trial court to adjudicate the defendant guilty of sexual battery under section 794.011(5) as a necessarily included offense, citing section 924.34 as authority. Gould v. State, 558 So.2d 481 (Fla. 2d DCA 1990). The supreme court quashed the district court's decision, holding that section 924.34 applies only to necessarily lesser-included offenses, i.e., offenses sharing common statutory elements....

...We hold that Shaara's convictions for sexual battery with a deadly weapon under section 794.011(3) necessarily determined the essential statutory elements of sexual battery by threats to use force likely to cause serious personal injury under section 794.011(4)(b), and that this court has authority under section 924.34 to reverse the erroneous convictions and remand with directions to adjudicate Shaara guilty of the lesser offense on each of those counts....

...more serious offense under section 794.011(3) also evidences a threat to use force or violence as well as the apparent ability to execute the threatened use of force or violence in violation of section 794.011(4)(b). [5] It follows, therefore, that section 924.34 provides authority to direct that Shaara be convicted of offenses under section 794.011(4)(b) upon remand....

...Therefore, we are legally obliged to reverse Sanders' conviction for kidnapping. But the Faison test does not apply to false imprisonment. See State v. Smith, 840 So.2d 987 (Fla.2003). Accordingly, we remand for the trial court to enter judgment for the lesser offense of false imprisonment, see § 924.34, Fla....

...nviction to one for second-degree murder and resentence the defendant. See Purkhiser v. State, 210 So.2d 448 (Fla. 1968); Sheffield v. State, 73 So.2d 65 (Fla. 1954); Douglas v. State, 152 Fla. 63, 10 So.2d 731 *1008 (1942); Weaver v. State, supra ; § 924.34, Fla....

...r judgment of acquittal. Accordingly, we reverse the conviction for first-degree petit theft and remand to the circuit court for the entry of a judgment of guilt for second-degree petit theft. Reversed and Remanded. TAYLOR and CONNER, JJ., concur. . Section 924.34, Florida Statutes (2010), provides: When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a les...

...fense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense. See also State v. Sigler, 967 So.2d 835, 844 (Fla.2007) (holding that section 924.34 is "a valid exercise of the legislative prerogative allowing appellate courts to direct a judgment" for a lesser offense when all of the elements of the lesser offense have been determined by the jury)....

...We reverse and remand for either a new trial on both charges or, in the discretion of the trial judge, discharge on the rape charge and reduction of the other offense to breaking and entering with intent to commit a misdemeanor, pursuant to Florida Statutes § 924.34 (1967), F.S.A., in which event the trial judge may pass sentence accordingly....

...ged should not stand. 17 Fla.Jur., Indictments and Informations, § 95. The proof, however, established an assault, a lesser included offense. Winburn v. State, 28 Fla. 339, 9 So. 694; 3 Fla.Jur., Assault and Battery, § 33, p. 130. Therefore, under § 924.34, Fla....

...int. Poole's third point is without merit and does not warrant discussion. Reversed and remanded with instructions for the entry of a judgment for manslaughter with a weapon and for resentencing. CASANUEVA, C.J., and NORTHCUTT, J., Concur. NOTES [1] § 924.34, Fla....

...particular individual." § 782.04(2), Fla. Stat. (1993). The circumstances leading up *950 to this event, as well as Cummings' effort to concoct a false alibi, provide more than enough evidence to convict him as a principal in the crime. Pursuant to section 924.34, Florida Statutes (1997), we reverse the conviction of first-degree murder and remand the case with instructions to enter a judgment for second-degree murder and sentence Cummings accordingly....

...Conduct in violation of section 796.07 is a lesser-included offense of that in violation of section 796.01. See Carlson v. State, 405 So.2d 173 (Fla. 1981); Wolfe v. State, 576 So.2d 915 (Fla. 2d DCA 1991). Cf. Golden v. State, 578 So.2d 480 (Fla. 2d DCA 1991) (appellate court, pursuant to section 924.34, Florida Statutes (1987), directed trial court to enter judgment for "lesser included offense" described in section 796.07(2)(a) after Warren v....

...He contends, however, that there was insufficient proof that he broke and entered the building with the intent to commit a specific crime and, therefore, his conviction must be reversed, or reduced to the lesser included crime of trespassing and remanded for a proper sentence. He relies on Fla. Stat. § 924.34, F.S.A....

...It is our conclusion that the state has failed to carry its burden of proving the market value of the wire at the time of taking. There is, however, ample evidence that the wire stolen had some value at the time of the theft. In conformity to F.S. 1967, Section 924.34, F.S.A., we hereby reverse the judgment and vacate the sentence of the trial court with directions to enter judgment of conviction for petty larceny and to impose sentence accordingly, taking into account the incarceration, to which the defendant has been subjected under the improper judgment and sentence....

...which would be required if we made the parties and the lower court do the long way what we ourselves should do the short." Mizell, 716 So.2d at 830. Mr. Larry's conviction must be reduced to the necessarily lesser-included offense of delivery of a controlled substance and remanded for resentencing. See § 924.34, Fla....

...t must be reversed. [10] IV. Given that there is insufficient evidence to support the conviction under paragraph 794.011(4)(a), Florida Statutes, the next question is whether the offense may be reduced to a lesser included offense under authority of section 924.34, Florida Statutes (1989)....

...proven that he wielded one of the three guns used in the shooting. The circumstances leading up to this event, as well as his effort to concoct a false alibi, provide more than enough evidence to convict him as a principal in the crime. Pursuant to section 924.34, Florida Statutes (1997), we reverse the conviction of first-degree murder and remand the case with instructions to enter a judgment for second-degree murder and sentence Fisher accordingly....

...Because of the concession that the sound could have been caused by the gun tapping on the glass window, we do not think that the evidence is such as to allow the jury to find guilt of the charged crime beyond a reasonable doubt. See Melendez v. State, 498 So.2d 1258, 1261 (Fla. 1986). Under section 924.34, Florida Statutes, "[w]hen the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish his guilt of ......

...felony murder even where the statute of limitations would preclude prosecution for the underlying felony of grand theft. Id. at 1072 (quoting State v. Pierce, 23 S.W.3d 289, 295, 296 (Tenn.2000); citations omitted; emphasis in original). Pursuant to section 924.34, Florida Statutes (2001), this court may direct the trial court to enter judgment for the lesser included offense of vehicular homicide if the evidence supports that offense....

...nstitute grand larceny, the conviction for that offense is erroneous. The proofs, however, do establish the guilt of the defendant of petty larceny, which is a lesser degree or offense necessarily included in the information. Pursuant, therefore, to Section 924.34, Florida Statutes, F.S.A., the judgment of the trial court is reversed with directions to enter judgment of conviction for petty larceny and to pass sentence accordingly....

...For the reasons heretofore stated the judgment appealed from is reversed and the cause remanded for the entry of judgment and sentence consistent with the views herein expressed. STURGIS, C.J., and CARROLL, DONALD, K., J., concur. NOTES [1] 116 Fla. 562, 156 So. 538. [2] Fla. 1950, 44 So.2d 81. [3] F.S. § 924.34, F.S.A.

...This decision is applicable to all cases pending on direct review or not yet final. Smith v. State, 598 So.2d 1063, 1066 (Fla. 1992); Fink v. Holt, 609 So.2d 1333 (Fla. 4th DCA 1992). The State nevertheless argues that Gray does not affect potential lesser included offenses of attempted felony murder and that pursuant to section 924.34, Florida Statutes (1993), [1] this court should reduce appellant's conviction to an appropriate lesser included offense for which there was sufficient evidence. We disagree and find that the State's reliance upon section 942.34 is misplaced. In accordance with Gray, appellant's conviction for attempted felony murder is not being vacated due to insufficiency of evidence so as to invoke section 924.34....

...dence did not establish that the defendant acted with ill will, hatred, spite, or evil intent toward the victim. Without that evidence, the State was unable to establish the depraved mind required for the second-degree murder conviction. Pursuant to section 924.34, Florida Statutes (1997), this court remanded the case back to the trial court for entry of a judgment for third-degree felony murder and for re-sentencing....

...We do not know and cannot speculate on whether the jury also believed that the State had proven the existence of an underlying felony beyond a reasonable doubt because the verdict returned by the jury did not require that determination. Appellant argues that section 924.34, Florida Statutes (1997), is unconstitutional because it contains no due process safeguards to preserve the sanctity of appellant's right to jury trial. Section 924.34, Florida Statutes (1997), states: When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty, but does establish guilt of a lesser statutory degree of the offense or a less...

...Pepitone not guilty of that offense. See Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970); Gleason 591 So.2d at 279. Accordingly, we reverse and remand for the trial court to enter a judgment and sentence for the lesser-included offense of trespass. See § 924.34, Fla....

...We agree that, because of this failure of proof, the trial court erred in denying the motion for judgment of acquittal. While we reverse on this basis, we remand for entry of a judgment of conviction for violation of section 316.1935(1), Florida Statutes (2006), on the authority of section 924.34, Florida Statutes (2009)....

...lement. By finding Mr. Slack guilty of violating section 316.1935(2), the jury made a finding on every element of the lesser-included offense under subsection (1). [2] We therefore direct entry of judgment of conviction for subsection (1) on remand. Section 924.34 provides: When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily in...

...al court to enter judgment for the lesser degree of the offense or for the lesser included offense. See generally State v. Sigler, 967 So.2d 835, 844 (Fla.2007) (an appellate court can direct a judgment for a permissive lesser-included offense under section 924.34 only if the jury verdict necessarily includes a finding on every element of that offense); Michelson v....

...t in and of itself to prove intent to sell). Although the prosecution failed to present sufficient evidence of Sampson's intent to sell cocaine, sufficient evidence was presented regarding the lesser included offense of possession. Thus, pursuant to section 924.34, Florida Statutes (2002), Sampson's conviction for possession of cocaine with intent to sell is reversed and the trial court is directed to enter judgment for possession of cocaine....

...[2] These are the factual circumstances which have traditionally formed the basis for the Felony-Murder Rule, and its application in the instant case to O'Connor and Marcum, as well as to O'Brien was proper. Accordingly, pursuant to Florida Statute, Section 924.34, the judgments of conviction of murder in the first degree are reversed; and the cause remanded to the trial court to enter judgments for murder in the second degree as to all defendants, and to pass sentence accordingly....

...l opinion. However, our review of the record shows evidence sufficient to support a conviction of the lesser degree of homicide, to-wit, murder in the second degree, and we have ordered judgment entered for that offense pursuant to Florida Statutes, § 924.34....

...under section 782.051(1), his conviction and sentence must be reversed and he should be discharged. He is correct that his conviction and sentence for attempted felony murder should be reversed. However, we do not agree that he should be discharged. Section 924.34, Florida Statutes (2001), states: When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesse...

...late court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense. In addition, the Florida Supreme Court held in I.T. v. State, 694 So.2d 720 (Fla. 1997), that section 924.34 refers to both category 1 necessary lesser included offenses and category 2 permissive lesser included offenses....

...As do we, the Fifth District found the decisions in People v. Chinchilla, 52 Cal.App.4th 683, 60 Cal.Rptr.2d 761, 765 (1997) and People v. Czahara, 203 Cal.App.3d 1468, 250 Cal.Rptr. 836, 840 (1988) persuasive. But see People v. Rothrock, 21 Cal.App.2d 116, 68 P.2d 364, 366 (1937). In accordance with section 924.34, Florida Statutes (1995), which provides that, when an "appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish his guilt of a lesser statutory degree of the o...

...or a new trial or as substituted "reduced convictions" on remand, where a conviction for attempted felony murder is reversed on appeal. The state urges us to reduce Mr. Horn's attempted felony murder conviction to attempted manslaughter, pursuant to section 924.34, Fla.Stat. (1993). This court has previously declined a similar request. Were we to adopt the state's position and direct entry of judgment for attempted manslaughter (an intent crime) pursuant to section 924.34, we necessarily would be acting as the fact-finder and would have to assume the presence of the requisite intent....

...As in Pratt, we also certify the following questions to our supreme court as being of great public importance: WHEN A DEFENDANT IS CHARGED WITH ATTEMPTED SECOND-DEGREE MURDER AND IS CONVICTED BY A JURY OF ATTEMPTED THIRD DEGREE (FELONY) MURDER, DO STATE V. GRAY, 654 SO.2D 552 (FLA. 1995), AND SECTION 924.34, FLORIDA STATUTES (1991), REQUIRE OR PERMIT THE TRIAL COURT, UPON REVERSAL OF THE CONVICTION TO ENTER JUDGMENT FOR ATTEMPTED VOLUNTARY MANSLAUGHTER, A CATEGORY 1 NECESSARILY INCLUDE LESSER OFFENSE OF THE CRIME CHARGED? IF THE ANSWER IS...

...CONCLUSION Accordingly, we reverse Ms. Culver's judgment and sentence for trafficking in cocaine. On remand, the trial court shall adjudge Ms. Culver to be guilty of the lesser included offense of possession of cocaine, section 893.13(6)(a), and sentence her for that offense. See § 924.34, Fla....

...aving her "in a precarious and vulnerable state for a period beyond the robbery." Id. We therefore reverse the kidnapping conviction and remand the case with directions for the trial court to impose the lesser-included offense of false imprisonment. § 924.34, Fla....

...attery on a child,” the court would have charged the jury with lesser included offenses, opening the door to the partial jury pardon that the prosecutor sought to avoid. Had appellant been convicted as charged under this subsection, we would apply section 924.34, Florida Statutes (2014), and direct the trial court to enter judgment for a “lesser offense necessarily included in the offense charged,” the crime of battery for which the evidence was abundant....

...t of an automobile. Appellant's "mere presence as an after-acquired passenger in a vehicle, with knowledge that it has been stolen, [was] insufficient to convict [him] of [automobile] theft." State v. G.C., 572 So.2d 1380, 1382 (Fla. 1991). Although section 924.34 of the Florida Statutes (1989) gives an appellate court the authority to direct a trial court to enter judgment for a lesser offense, the supreme court recently held in Gould v....

...Therefore, we reverse the conviction for aggravated fleeing. Because the evidence was sufficient to prove the lesser included offense of simple fleeing, a misdemeanor in violation of section 316.1935(1), we remand with instructions to enter judgment and sentence for the lesser offense. See § 924.34, Fla....

...Under the rule of lenity applied to criminal statutes, section 775.021(1), it is not sufficient that the school "own" the property. Rather, the property must "comprise" the school. The two terms are not synonymous. Thus, we reverse defendant's conviction under section 893.13(1)(e). Pursuant to section 924.34 we direct the trial court on remand to enter judgment for the lesser-included offense of purchase of cocaine....

...t be convicted of that offense. Cf. Pratt v. State, 668 So.2d 1007, 1009 (Fla. 1st DCA), approved 682 So.2d 1096 (Fla.1996) ("Were we to adopt the state's position and direct entry of judgment for attempted manslaughter (an intent crime) pursuant to section 924.34, we necessarily would be acting as the fact-finder and would have to assume the presence of the requisite intent....

...e a finding of intent that the jury itself did not have to make."). The state's response to this is to argue only that the law of the case bars *19 any reconsideration of this issue. We have already rejected that argument. The state also argues that section 924.34 authorizes an appellate court to order a conviction on a permissive, lesser included offense. See § 924.34, Fla....

...nal convictions to rest upon a jury determination that a defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt." Id. The First District recognized, however, that the Florida Supreme Court has construed section 924.34 to authorize appellate judges to make a finding of guilt as to each element of permissive lesser included offenses in place of a jury determination....

...I.T. violates decisions of the United States Supreme Court. We decline to certify this *20 issue. The decisions in Apprendi and Blakely both came after the Florida court decided I.T. We think these later decisions make it clear beyond any doubt that section 924.34 as interpreted in I.T....

...gree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense. § 924.34, Fla....

...1st DCA 1994) (because attempted second-degree murder and attempted manslaughter are necessarily included lesser offenses of the charged offense of attempted first-degree murder, it was error not to give appropriate instructions). In support of its position, the state relies on section 924.34, Florida Statutes (1991): 924.34 When evidence sustains only conviction of lesser offense,—When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish his guilt of a lesser statutory degree of t...

...he offense or for the lesser included offense. Like our sister court in Wilson v. State, 660 So.2d 1067 (Fla. 3d DCA 1995), we conclude that the appellant's conviction "is not being vacated due to insufficiency of evidence" as specified literally in section 924.34. Id., 660 So.2d at 1068. Thus, we agree with the Third District Court that, under these circumstances, the provisions of section 924.34 were not triggered. See id. We note that the Florida Supreme Court did not specify in Gray whether section 924.34 applies to cases like Wilson or the case at bar. We acknowledge that, contrary to the literal wording of section 924.34, some appellate courts (including our own) have applied this statute also "to cases in which convictions had to be set aside because they were based on statutes later determined to be unconstitutional." Paige v....

...Subsequently, the Florida Supreme Court in Brown v. State, 629 So.2d 841 (Fla.1994), held the applicable statute unconstitutional because the statutory phrase "public housing facility" is vague and does not afford adequate notice as to what conduct is prohibited. Relying on section 924.34, the Fifth District Court determined that a conviction of a lesser-included offense (possession of cocaine) could be sustained, and it reversed Paige's conviction and remanded with directions to enter a new judgment accordingly. 641 So.2d at 180 & 182. In the analogous Harris case, we reversed the conviction of sale of cocaine within 200 feet of a public housing facility and cited section 924.34 in support of our instruction to enter judgment for the *1009 necessarily included lesser offense of sale of cocaine. 649 So.2d at 924; Gould v. State, 577 So.2d 1302, 1305 n. 7 (Fla.1991) (§ 924.34 is applicable only to necessarily lesser-included offenses); Shaara v. State, 581 So.2d 1339 (Fla. 1st DCA 1991). Reliance on section 924.34 is logical and proper in those instances like Harris and Paige, where the defendant is convicted of the charged offense based on sufficient evidentiary grounds....

...Instead, in convicting him of a lesser-included crime that does not contain the element of intent, the jury obviously did not have to find intent. Were we to adopt the state's position and direct entry of judgment for attempted manslaughter (an intent crime) pursuant to section 924.34, we necessarily would be acting as the fact-finder and would have to assume the presence of the requisite intent....

...portance: WHEN A DEFENDANT IS CHARGED WITH ATTEMPTED SECOND-DEGREE (DEPRAVED MIND) MURDER AND IS CONVICTED BY A JURY OF THE CATEGORY 2 LESSER-INCLUDED OFFENSE OF ATTEMPTED THIRD-DEGREE (FELONY) MURDER, DO STATE v. GRAY, 654 SO.2D 552 (FLA.1995), AND SECTION 924.34, FLORIDA STATUTES (1991), REQUIRE OR PERMIT THE TRIAL COURT, UPON REVERSAL OF THE CONVICTION, TO ENTER JUDGMENT FOR ATTEMPTED VOLUNTARY MANSLAUGHTER, A CATEGORY 1 NECESSARILY INCLUDED LESSER OFFENSE OF THE CRIME CHARGED? IF THE ANSWER...

...State, 101 So.2d 877 (Fla.App. 1958). For the reasons stated, the judgment is reversed and the cause is remanded with directions to the trial court to enter judgment and sentence on the lesser included offense, breaking and entering with intent to commit petit larceny. Section 924.34, Florida Statutes Annotated....

...See Tibbs v. State, 397 So.2d 1120 (Fla. 1981), affirmed, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). The jury had to have guessed that vaginal penetration occurred. A jury cannot convict on evidence susceptible to speculation or conjecture. However, section 924.34, Florida Statutes (1987), grants this court the power to direct a trial court to enter judgment for the lesser included offense when we determine the evidence does not prove the offense for which appellant was found guilty but does est...

...e adequate notice as to what conduct is prohibited. Brown v. State, 629 So.2d 841 (Fla. 1994). However, Paige's conviction of a lesser included offense, section 893.13(1)(a)(1) (possession of cocaine with intent to sell) can be sustained pursuant to section 924.34. That statute provides: 924.34....

...To be a necessarily included lesser offense, all of the elements of the lesser offense must be included in the charged offense so that the burden of proof as to the charged crime cannot be discharged without proving the lesser offense. Gould; Brown v. State, 206 So.2d 377 (Fla. 1968); Shaara. Although by its language section 924.34 applies to cases in which "the evidence does not prove the offense for which the defendant was found guilty," the statute has also been applied to cases in which convictions had to be set aside because they were based on statutes later determined to be unconstitutional....

...the defendant); Long v. State, 578 So.2d 288 (Fla. 2d DCA 1991) (same); Wolfe v. State, 576 So.2d 915 (Fla. 2d DCA 1991) (same). The courts have also remanded for an adjudication of guilt on the lesser offense in such situations without reference to section 924.34....

...Since the evidence adequately supports a conviction for burglary as a second degree felony, we reverse the first degree burglary conviction and remand to the trial court with directions to enter judgment for a conviction of second degree burglary and to resentence the defendants in this regard. See Section 924.34, Florida Statutes (1979)....

...f the charge. Cf. Troyer, 610 So.2d at 531. Therefore, despite the Ellises' failure to preserve this issue for appellate review, we are compelled to reverse the adjudications and sentences imposed under Counts VIII, IX, and X. Next, we conclude that section 924.34, Florida Statutes (1995), is applicable in this case even though child abuse is not a necessarily lesser included offense of aggravated child abuse. Section 924.34, provides: When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish his guilt of a lesser statutory degree of the offense or a lesser offense necessari...

...all reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense. In I.T. v. State, 694 So.2d 720 (Fla. 1997), the Florida Supreme Court concluded that despite its wording, section 924.34 allows appellate courts to direct trial courts to enter judgments for "permissive" lesser included offenses as well as "necessarily" lesser included offenses, where the evidence fails to prove the charged offense but proves the lesser included offense....

...In this case, child abuse certainly meets the definition of a permissive lesser included offense, i.e., "offenses which may or may not be included in the offense charged, depending on the accusatory pleading in the evidence." Brown v. State, 206 So.2d 377, 381 (Fla.1968). Pursuant to section 924.34 and the supreme court's opinion in I.T., this court has the authority to reduce the aggravated child abuse conviction to the permissive lesser included offense of child abuse, a third-degree felony....

...r grand theft. However, because the State's evidence was sufficient to establish that a theft occurred, we remand for the trial court to reduce Carter's grand theft conviction to a conviction for petit theft and to resentence Carter accordingly. See § 924.34, Fla....

....014(2)(d), which defines third-degree grand theft to include theft from a dwelling of property valued at $100 or more, the State did not do so in this case. [2] In State v. Sigler, 967 So.2d 835, 845 (Fla. 2007), the Florida Supreme Court held that section 924.34 is "unconstitutional only to the extent that it can be read to allow the appellate court to direct entry of judgment for a lesser-included offense when all of the elements of the lesser-included offense have not been found by a jury be...

...a deadly weapon they needed to find the kitchen knife was likely to cause death or great bodily injury. Accordingly, we reverse. Because the Defendant concedes the evidence was sufficient to prove robbery by sudden snatching, we remand, pursuant to section 924.34, Florida Statutes (2000), for the trial court to impose final judgment and sentence for robbery by sudden snatching....

...ll. It presented no evidence showing an intent to sell within the park. Therefore, the court erred in denying the motion for judgment of acquittal. We reverse and remand with directions to enter judgment for simple possession of cocaine, pursuant to section 924.34, Florida Statutes (2006)....

...ree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense." § 924.34, Fla....

...in the alternative to a new a trial, sought the reduction of his conviction for aggravated assault to simple assault. We remand to the trial court to reduce Appellant’s conviction from aggravated assault to simple assault and for resentencing. See § 924.34, Fla....

...than in criminal cases. We therefore read Rule 8.110(j) as giving the trial judge the same options for finding a defendant guilty of a lesser included offense as does Rule 3.510. This holding is consistent with the supreme court's interpretation of section 924.34, Florida Statutes (1995), in I.T....

...g with intent to commit a misdemeanor, to wit: petit larceny; and then sentence for same after obtaining a presentence investigation and recommendations or after establishing at a hearing that appellant has previously been convicted of a felony. See Section 924.34, Florida Statutes; Davis v....

...robbery convictions because nothing was taken from the person of the bracelet owner), rev. den., 563 So.2d 633 (Fla. 1990). Although appellant's conviction for armed robbery of Kimberly Smith must be reversed, we direct the trial court, pursuant to section 924.34, Florida Statutes (1989), to enter a judgment of conviction against appellant for the crime of aggravated assault with a deadly weapon committed against Kimberly Smith. Section 924.34 provides as follows: When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish his guilt of a lesser statutory degree of the offense or a lesser offense...

...ppellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense. (Emphasis added). In Royal v. State, 490 So.2d 44 (Fla. 1986), the supreme court employed section 924.34 to do precisely what we now do....

...se of robbery with a firearm. This confusion was dispelled, however, by G.C. v. State, 560 So.2d 1186, 1189-90 (Fla. 3d DCA 1990), aff'd on other grounds, 572 So.2d 1380 (Fla. 1991), where the court held that the emphasized language in section *1000 924.34 referred to both category I and category II lesser included offenses. Because aggravated assault with a deadly weapon is a category II lesser included offense of robbery with a firearm, we apply section 924.34 and order the trial court to enter the judgment of conviction in accordance with the above directive....

...portance: WHEN A DEFENDANT IS CHARGED WITH ATTEMPTED SECOND-DEGREE (DEPRAVED MIND) MURDER AND IS CONVICTED BY A JURY OF THE CATEGORY 2 LESSER-INCLUDED OFFENSE OF ATTEMPTED THIRD-DEGREE (FELONY) MURDER, DO STATE v. GRAY, 654 So.2d 552 (Fla.1995), AND SECTION 924.34, FLORIDA STATUTES (1991), REQUIRE OR PERMIT THE TRIAL COURT, UPON REVERSAL OF THE CONVICTION, TO ENTER JUDGMENT FOR ATTEMPTED VOLUNTARY MANSLAUGHTER, A CATEGORY 1 NECESSARILY INCLUDED LESSER OFFENSE OF THE CRIME CHARGED? IF THE ANSWER...

...trial court to find a child guilty of a necessarily lesser included offense, but not a permissive lesser included offense. However, the Third District based its construction of rule 8.110(j) on the supreme court's construction of similar language in section 924.34, Florida Statutes, in Gould v. State, 577 So.2d 1302 (Fla.1991). The supreme court receded from Gould in I.T., 694 So.2d at 722, and held that section 924.34 encompasses both necessarily lesser included offenses as well as permissive lesser included offenses....

...We determine, however, that the evidence does establish that Wolfe is guilty of the offense of keeping a house of prostitution under section 796.07(2)(a), Florida Statutes (1987), [1] which we conclude is a necessarily lesser included offense of maintaining a house of ill fame. [2] As we are authorized to do under section 924.34, Florida Statutes (1987), we direct the trial court to enter judgment for the lesser included offense and to resentence defendant for that lesser offense....

...conclusion that the property was taken as an afterthought to the murders). Accordingly, judgments of acquittal should have been entered as to first-degree felony murder and robbery. See Mahn, 714 So.2d at 397; Fowler, 492 So.2d at 1352. Pursuant to section 924.34, Florida Statutes (1997), we must next determine whether the evidence supports convictions for lesser statutory degrees or necessarily included lesser offenses other than first-degree murder and robbery....

...Once out in traffic, the appellant led many officers on a high-speed chase that resulted in the appellant crashing his car. These facts are sufficient to support a conviction for culpable negligence. See, e.g., Ellison v. State, 547 So.2d 1003 (Fla. 1st DCA 1989), quashed on other grounds, 561 So.2d 576 (Fla.1990). Section 924.34, Florida Statutes (2001), states: When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense. Further, "section 924.34 refers to both category 1 necessary lesser included offenses and category 2 permissive lesser included offenses." Coicou v....

...es establish the lesser offense of culpable negligence, we reverse the appellant's conviction for aggravated assault on a law enforcement officer and remand this cause to the trial court with directions to enter judgment for culpable negligence. See § 924.34, Fla....

...se of culpable negligence as required by I.T., we have determined that it is appropriate to certify a question of great public importance to the supreme court. The question is certified because of our difficulty in reconciling I.T.'s construction of section 924.34, Florida Statutes, with decisions such as United States v....

...me as a necessarily included offense except that it contains one or more statutory elements which the charged offense does not contain."). See also State v. Wimberly, 498 So.2d 929 (Fla.1986); Brown v. State, 206 So.2d 377 (Fla.1968). Accordingly, a section 924.34 remand with directions for the trial court to impose judgment and sentence for a permissive lesser included offense requires entry of judgment and sentence for a crime which includes at least one element never addressed by the verdict of a jury....

...harge of possession of methamphetamine pursuant to section 893.13(1), Florida Statutes (1991). Therefore, we direct the trial court to enter a judgment for the lesser included offense of possession of methamphetamine and to sentence accordingly. See § 924.34, Fla....

...Accordingly, we find that the State failed to establish each element of trafficking or attempted trafficking, and conclude that Hernandez’s convictions for felony murder in the first-degree must be reversed. REMEDY Having concluded that Hernandez’s convictions must be vacated, we consider the remedy to be applied. Under section 924.34, Florida Statutes (2010): When the appellate court determines that the evidence does not prove the *763 offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser o...

...the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense. In I.T. v. State, 694 So.2d 720, 724 (Fla.1997), we interpreted section 924.34 to allow an appellate court to modify the trial court’s verdict and to enter a judgment either for a necessarily lesser included offense or for a permissive lesser included offense where supported by the allegations in the charging document and the proof at trial....

...�s possession of at least 28 grams of cocaine). Accordingly, because Hernandez was charged and convicted in a manner encompassing each element of third-degree felony murder, this Court may direct a verdict for the lesser included offense pursuant to section 924.34....

...ted with ill will, hatred, spite or an evil intent towards the eventual victim. Thus, consistent with the holdings in Duckett and Ellison, Michelson's conviction for depraved mind second-degree murder lacks evidentiary support, and must be reversed. Section 924.34, Florida Statutes (1997), provides that when the appellate court determines that the evidence is insufficient to sustain the offense for which the defendant was convicted, but does establish his guilt as to a necessarily included lesse...

...Bongarzone, 116 A.D.2d 164, 167, 500 N.Y.S.2d 532 (1986) (upholding solicitation conviction for second degree murder). Accordingly, we reverse the conviction and remand this case to the trial court with directions to enter judgment for the lesser included offense of guilty of solicitation to commit aggravated battery. See § 924.34, Fla....

...Aldacosta guilty of the statutory elements of simple battery, which is a necessary lesser-included offense of felony battery. We therefore remand the case to the trial court to enter a conviction for simple battery and an appropriate sentence. See § 924.34, Fla. Stat. (2007); State v. Sigler, 967 So.2d 835, 844 (Fla.2007) ("[W]hen all of the elements of a lesser offense have been determined by the jury, section 924.34 is a valid exercise of the legislative prerogative allowing appellate courts to direct a judgment for such an offense.")....

...We agree with appellant that the evidence presented did not support her conviction of aggravated child abuse. We reverse the conviction and direct the trial court on remand to enter judgment for child abuse under section 827.03(1), Florida Statutes (1999). See § 924.34, Fla....

...nd the evidence adduced at trial was sufficient to establish Golden's guilt for the lesser included offense of keeping a house of prostitution under section 796.07(2)(a), Florida Statutes (1987). See Wolfe v. State . As we are authorized to do under section 924.34, Florida Statutes (1987), we direct the trial court to enter judgment for the lesser included offense and to resentence Golden accordingly....

...was precluded from using the transferred intent doctrine to support the convictions for attempted murder in the first degree. There is nothing in the record to indicate that appellant intended to kill either Ransom or Fudge. Having said all of that, section 924.34, Florida Statutes (1991), provides that when this court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense, this court "...

...onviction for manslaughter and a sentence thereon, rather than completely discharging the appellant from his crime, as the dissent maintains. See Pierce v. State, 376 So.2d 417 (Fla. 3d DCA 1979); Martinez v. State, 360 So.2d 108 (Fla. 3d DCA 1978); § 924.34, Fla....

...(2003) (proscribing simple battery as a misdemeanor of the first degree). And it is even possible that an adjudication of delinquency under section 800.04(4) (lewd or lascivious battery) might be reduced to an adjudication of delinquency under section 784.03(1) (simple battery) on appeal. See § 924.34, Fla....

...It does not reach whether any other charge was properly before the jury. Moreover, because the record reflects that the lesser included offense of attempt was also before the jury, I would consider directing the entry of judgment on the lesser included offense of attempt in this case. See § 924.34, Fla....

...See Fla. Std. Jury Instr. (Crim.) 20.19; Pizzo , 945 So.2d at 1207 . The evidence at trial showed that the most Cooks ever stole was on March 4, 2016, when he walked out of the store with two televisions worth a total of $796. Therefore, pursuant to section 924.34, Florida Statutes, the cause should be remanded for entry of a judgment of conviction for the lesser offense of grand theft of property over $300 but less than $5,000, grand theft in the third degree, a third degree felony....

...Simo, the jury found and the record supports that Tribbitt attempted to rob Ms. Simo. Accordingly, we reverse Tribbitt's conviction in count I for attempted robbery with a deadly weapon. We remand for the trial court to enter a judgment for the offense of attempted robbery and to resentence Tribbitt for that crime. See § 924.34, Fla....

...NOTES [1] Although the verdict form reflects that the jury found Tribbitt guilty of attempted robbery with a weapon, the judgment lists the crime as attempted armed robbery with a deadly weapon. [2] In State v. Sigler, 967 So.2d 835, 845 (Fla. 2007), the Florida Supreme Court held that section 924.34 is "unconstitutional only to the extent that it can be read to allow the appellate court to direct entry of judgment for a lesser-included offense when all of the elements of the lesser-included offense have not been found by a jury be...

...Appellant contends the trial court erred when it denied his motion for judgment of acquittal because the undisputed facts do not satisfy the statutory elements of that crime. For the reasons explained below, we agree and reverse with instructions to the trial court to enter a judgment of theft, as authorized by section 924.34, Florida Statutes....

...y... [d]eprive the other person of a right to the property or a benefit from the property... [or][a]ppropriate the property to his or her own use or to the use of any person not entitled to the use of the property." § 812.014(1)(a), (b), Fla. Stat. Section 924.34, Florida Statutes, authorizes appellate courts to "reverse [a] judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense." Here, the victim's uncontroverted testimony was that her purse contained $400 in cash when it was taken. Indeed, the trial court entered a restitution order in that amount. This would support a conviction of third-degree felony grand theft under section 812.014(2)(c)1. Pursuant to section 924.34, Florida Statutes, we would be authorized to direct the trial court to enter a judgment for the lesser included offense of third-degree felony theft, even though the penalty for that offense is the same as that for robbery by sudden snatching....

...The court remanded for the trial court to reduce the trespass charge to attempted trespass. Id. at 248. Attempted trespass is a category two permissive lesser included offense of trespass pursuant to the Schedule of Lesser Included Offenses in the Standard Jury Instructions (2004). Section 924.34, Florida Statutes (2004), [1] would authorize the reduction of the trespass to the attempt if the charge and proof are present. See I.T. v. State, 694 So.2d 720, 724 (Fla.1997) (section 924.34 refers to both category one necessary lesser included offenses and category two permissive lesser included offenses if the charge and proof are present)....

...ttempted trespass can be considered a permissive lesser here. Therefore, we reverse for discharge on the trespass conviction. Affirmed in part, reversed in part, and remanded. NORTHCUTT, J., and THREADGILL, EDWARD F., Senior Judge, Concur. NOTES [1] Section 924.34 provides: When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily in...

...to support the charge and reversed. Brumit v. State, 843 So.2d 978 (Fla. 4th DCA 2003). Unlike the present case, however, that panel directed the trial court to enter judgment on the lesser included offense of child abuse, relying on a statute. See § 924.34, Fla....

...court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense."). In Sigler v. State, 881 So.2d 14 (Fla. 4th DCA 2004), we held under similar circumstances that section 924.34 is no longer valid when a factual issue critical to the lesser included offense was not itself submitted to the jury at trial....

...granted, 956 So.2d 455 (Fla. 2007). The state concedes that the manifest injustice doctrine may apply to Defendant, who is similarly situated to Festa; its only argument to the contrary arises in the event the supreme court were to uphold the application of section 924.34, Florida Statutes. Section 924.34 provides as follows: When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense nec...

...case. The allegation of an illegal conviction was an exceptional circumstance warranting relaxation of the law of the case doctrine. 881 So.2d at 17. In State v. Sigler, 967 So.2d 835 (Fla.2007), the supreme court affirmed, holding that section *208 924.34, Florida Statutes, is unconstitutional to the extent it can be read to allow the appellate court to direct entry of judgment for a lesser included offense if not all the elements of the lesser have been found by a jury beyond a reasonable doubt....

...*1082 Harris contends that we must reverse his conviction for robbery with a firearm and remand for a new trial. The State argues, however, that Harris is not entitled to a new trial. The State argues that, instead, this court should direct the trial court to enter a judgment for attempted robbery with a firearm pursuant to section 924.34, Florida Statutes (2011). Section 924.34 provides as follows: When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense. The Florida Supreme Court discussed section 924.34 in Jaimes . There, the defendant was convicted of aggravated battery by causing great bodily harm, but he was charged with aggravated battery with a deadly weapon. 51 So.3d at 447 . In reversing the conviction, the supreme court stated, “Under section 924.34, Florida Statutes (2010), when an appellate court vacates a conviction but determines that the evidence establishes the defendant’s guilt as to a lesser included offense, ‘the appellate court shall reverse the judgment and direct the trial court to enter judgment for the ......

...In doing so, the supreme court recognized that “the elements of simple battery were both supported by the charging document and the proof at trial, and each element of the offense was determined by the jury beyond a reasonable doubt.” Id. (citing State v. Sigler, 967 So.2d 835, 842 (Fla.2007)). To constitutionally apply section 924.34, the jury must have found every element of the lesser offense beyond a reasonable doubt....

...ablished the attempt but was insufficient to prove that a purchase took place). Based on the fact that the evidence did not support and the jury did not find all the elements of the lesser offense of attempted robbery with a firearm, we cannot apply section 924.34....

...ntroduce competent, substantial evidence showing that the value of the stolen property exceeded $20,000, and we reverse and remand to the trial court to impose a sentence for grand theft over $10,000 but less than $20,000, a third-degree felony. § 924.34, Fla....

...We acknowledge that a juvenile judge may properly invoke a procedure used in adult criminal cases if there is no counterpart in the juvenile laws, and if the procedure was not intended to apply exclusively to adults. See I.T. v. State, 694 So.2d 720 (Fla.1997) (applying section 924.34, Florida Statutes in a juvenile delinquency proceeding)....

...with the intent to purchase, in violation of sections 777.04(3) and 893.13(2)(a)1., Florida Statutes (2003), a lesser-included charge of conspiracy to traffic, we direct the trial court to enter a *1227 conviction on the lesser-included charge. See § 924.34, Fla....

...In addition, Rayl cannot show prejudice arising from his counsel's alleged deficient performance because even if Rayl's trial counsel had presented Duncan to the trial court, such action would not have affected this court's authority to direct the trial court to adjudicate Rayl guilty of manslaughter on remand pursuant to section 924.34, Florida Statutes (2000)....

...600 to get a new laptop computer with the same programs”). Accordingly, we reverse M.S.O.’s adjudication of delinquency for third degree grand theft and remand for the trial court to enter judgment for the lesser included offense of petit theft. § 924.34, Fla....

...or $600 to get a new laptop computer with the same programs"). Accordingly, we reverse M.S.O.'s adjudication of delinquency for third degree grand theft and remand for the trial court to enter judgment for the lesser included offense of petit theft. § 924.34, Fla....

...and against her or his will”). We reverse Stanley’s kidnapping conviction and the sentence imposed for that crime, and we remand with directions to the trial court to enter judgment for false imprisonment and to sentence him for that crime. See § 924.34, Fla....

...The State concedes error as it relates to the jury instructions and asks for the case to be remanded with instructions to enter judgment for trespass on property other than a structure or conveyance under section 810.09(1)(a), Florida Statutes. As authority for this procedure, the State cites to section 924.34, Florida Statutes (2011), which provides: When the appellate court determines that the evidence does not prove the *415 offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offen...

...nor defense counsel invited the error. We therefore instruct the trial court to vacate the delinquency finding as to felony battery and to enter a withhold of adjudication of delinquency as to the necessarily included lesser offense of simple battery. See § 924.34, Fla....

...o [Barnes] are indisputable from the face of the record before us.” Id. at 404. We direct the trial court to vacate Barnes’ first-degree murder conviction, enter a judgment for second-degree murder, and sentence Barnes accordingly. See § 924.34, Fla. Stat. (2014).6 AFFIRMED, in part; REVERSED, in part; and REMANDED with directions. BERGER and WALLIS, JJ., concur. 6 Section 924.34, Florida Statutes (2014), provides: When evidence sustains only conviction of lesser offense.– When the appellate court determines that the evidence does not prove the offense for whi...

...to support the charge and reversed. Brumit v. State, 843 So.2d 978 (Fla. 4th DCA 2003). Unlike the present case, however, that panel directed the trial court to enter judgment on the lesser included offense of child abuse, relying on a statute. See § 924.34, Fla....

...court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense."). In Sigler v. State, 881 So.2d 14 (Fla. 4th DCA 2004), we held under similar circumstances that section 924.34 is no longer valid when a factual issue critical to the lesser included offense was not itself submitted to the jury at trial....

...We similarly conclude that the Legislature did not intend the burglary statute to be so applied. While the State’s evidence was insufficient to prove a burglary, it was (as J.L. acknowledges) sufficient to prove the lesser included offense of trespass. 2 Section 924.34, Florida Statutes (2009), provides that when an appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser offense necessarily included in the o...

...1st DCA 1996), and certify the following questions as being of great public importance: WHEN A DEFENDANT IS CHARGED WITH ATTEMPTED SECOND-DEGREE MURDER AND IS CONVICTED BY A JURY OF THE CATEGORY 2 LESSER-INCLUDED OFFENSE OF ATTEMPTED THIRD DEGREE (FELONY) MURDER, DO STATE V. GRAY, 654 So.2d 552 (Fla.1995), AND SECTION 924.34, FLORIDA STATUTES (1991), REQUIRE OR PERMIT THE TRIAL COURT, UPON REVERSAL OF THE CONVICTION TO ENTER JUDGMENT FOR ATTEMPTED VOLUNTARY MANSLAUGHTER, A CATEGORY 1 NECESSARILY INCLUDED LESSER OFFENSE OF THE CRIME CHARGED? IF THE ANSWER I...

...er is in the first degree. [3] We must, therefore, reverse and remand with the direction that the trial court reduce Steverson's conviction to the necessarily included offense of attempted second degree murder and impose an appropriate sentence. See § 924.34, Fla....

...We held that the evidence did not support the conviction, because there was insufficient evidence of a depraved mind. Sigler, 881 So.2d at 16 (citing Sigler v. State, 805 So.2d 32 (Fla. 4th DCA 2001)). We also held that we could not remand for the entry of a conviction of third degree felony murder under section 924.34, Florida Statutes (2003), because the jury’s verdict “did not include a jury determination beyond reasonable doubt as to each element” of the enumerated felony (harboring an escapee)....

...1997) (concluding that the definitions in the standard jury instructions on robbery are “a correct statement of the law” and recognizing that a BB or pellet gun may be a deadly weapon). Accordingly, the Fifth District correctly ordered the trial court to reduce Davis’s convictions to robbery with a weapon. Cf. § 924.34, Fla....

...lesser-included offense that is established by the record where the evidence does not sustain the offense for which the defendant was found guilty); State v. Sigler, 967 So. 2d 835, 844 (Fla. 2007) (“[W]hen all of the elements of a lesser offense have been determined by the jury, section 924.34 is a valid exercise of the legislative prerogative allowing appellate courts to direct a judgment for such an offense.”). -4-  Therefore, we approve the result of the Fifth District�...

...UANCE OF THE OPINION? and WHEN A DEFENDANT IS CHARGED WITH ATTEMPTED SECOND-DEGREE MURDER AND IS CONVICTED BY A JURY OF THE CATEGORY 2 LESSER-INCLUDED OFFENSE OF ATTEMPTED THIRD DEGREE (FELONY) MURDER, DO STATE V. GRAY, 654 So.2d 552 (Fla.1995), AND SECTION 924.34, FLORIDA STATUTES (1991) REQUIRE OR PERMIT THE TRIAL COURT, UPON REVERSAL OF THE CONVICTION TO ENTER JUDGMENT FOR ATTEMPTED VOLUNTARY MANSLAUGHTER, A CATEGORY 1 NECESSARILY INCLUDED LESSER OFFENSE OF THE CRIME CHARGED? IF THE ANSWER IS...

...UANCE OF THE OPINION? and WHEN A DEFENDANT IS CHARGED WITH ATTEMPTED SECOND-DEGREE MURDER AND IS CONVICTED BY A JURY OF THE CATEGORY 2 LESSER-INCLUDED OFFENSE OF ATTEMPTED THIRD DEGREE (FELONY) MURDER, DO STATE V. GRAY, 654 So.2d 552 (Fla.1995), AND SECTION 924.34, FLORIDA STATUTES (1991), REQUIRE OR PERMIT THE TRIAL COURT, UPON REVERSAL OF THE CONVICTION TO ENTER JUDGMENT FOR ATTEMPTED VOLUNTARY MANSLAUGHTER, A CATEGORY 1 NECESSARILY INCLUDED LESSER OFFENSE OF THE CRIME CHARGED? IF THE ANSWER I...

...[1] Accordingly, we reverse Luther's conviction for selling cocaine within 1,000 feet of a public housing facility and remand with instructions to the trial court to adjudicate Luther guilty of selling cocaine, a necessarily lesser included offense, and to resentence him accordingly. See § 924.34, Fla....

...Since the state proved appellant committed the offense of sale of cocaine, the conviction for sale of cocaine within 1,000 feet of a school must be vacated and remanded with directions to enter a judgment of conviction and sentence for sale of cocaine, in accordance with the provisions of section 924.34, Florida Statutes.")....

...NOTES [1] Luther also argues that the trial court erred in instructing the jury on expert witnesses because the trial court did not indicate to the jury which witnesses were experts. As to this issue, we affirm without further discussion. [2] We note that the Florida Supreme Court has held section 924.34 unconstitutional "[t]o the extent that [it] can be read to provide for conviction of an offense whose elements have not been determined by the jury...." State v. Sigler, 967 So.2d 835, 844 (Fla.2007). However, section 924.34 can be constitutionally applied in the instant case because the sale of cocaine is a necessarily lesser included offense of the sale of cocaine within 1,000 feet of a public housing facility. See id. ("[W]hen all of the elements of a lesser offense have been determined by the jury, section 924.34 is a valid exercise of the legislative prerogative allowing appellate courts to direct a judgment for such an offense.").

...Moreover, Thornton acknowledged that he was sexually stimulated by the contact. Had the State appropriately charged Thornton with lewd and lascivious molestation, we would today be affirming his conviction of that offense. Reversed and remanded with directions. WHATLEY and NORTHCUTT, JJ., Concur. NOTES [1] Section 924.34, Florida Statutes (2000), allows this court to order the trial court to enter a directed verdict for a lesser included offense if the evidence presented at trial does not support the crime the defendant was convicted of yet does establish guilt of the lesser offense....

...lder is a remand for entry of a judgment finding Mr. Ortiz guilty of simple battery on a person sixty-five years of age or older, sections 784.03(1) and 784.08(2)(c), a felony of the third degree, and for resentencing Mr. Ortiz for that offense. See § 924.34, Fla....

...(quashing district court’s decision affirming a conviction for aggravated battery with great bodily harm and remanding for the district court to direct the entry of a verdict for the lesser included offense of simple battery). We do not think that section 924.34 applies under the facts of this case....

...The information sufficiently alleged the lesser-included offense of possession of marijuana with intent to sell, and the evidence at trial supported such a conviction. Accordingly, we remand with instructions to enter a judgment for possession of marijuana with intent to sell. See § 924.34, Fla....

...property because there was no showing that he intended to dispose of the speakers. The State concedes that the evidence was insufficient but argues that this court should remand for entry of an order finding B.B.P. guilty of grand theft pursuant to section 924.34, Florida Statutes (2001)....

...We agree that the evidence was insufficient to support the charge of dealing in stolen property because it was not shown that B.B.P. intended to traffic in the stolen property. See § 812.019(1), Fla. Stat. (2001). However, we do not agree that a finding of guilt may be directed for the crime of grand theft. Section 924.34 provides: When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily in...

...the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense. B.B.P. was found guilty of the nonexistent crime of possession of stolen property, which of course has no lesser-included offenses. Therefore, section 924.34 has no application in this case....

...While we affirm three of the kidnapping convictions challenged on appeal, we reverse one of them because the evidence was insufficient under the three-part test set forth in Faison v. State, 426 So. 2d 963 (Fla. 1983), to support the commission of that kidnapping count. Instead, we remand on that count pursuant to section 924.34, Florida Statutes (2015), for entry of a judgment of conviction for the lesser included offense of false imprisonment while armed and masked. I....

...Here, the manager’s movement and confinement were limited to facilitating the robbery from the safe, black box and cash registers he controlled as the store’s custodian. We therefore reverse the defendant’s conviction for kidnapping the manager. Nonetheless, we are compelled by section 924.34, Florida Statutes (2015), to remand for entry of a judgment of conviction and resentencing on the lesser included offense of false imprisonment while armed and masked. Section 924.34 provides: When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense. § 924.34, Fla. Stat. (2015) (emphasis added). “[W]hen all of the elements of a lesser offense have been determined by the jury, section 924.34 is a valid exercise of the legislative prerogative allowing appellate courts to direct a judgment for such an offense.” State v....

...ing serious bodily injury where only the driver has been injured. The appellant’s conviction is accordingly reversed and this case is remanded to the trial court for entry of judgment and imposition of sentence for driving under the influence. See § 924.34, Fla....

...As to defendant’s other contention, we affirm. That contention is that the trial court, following our remand in the first appeal, acted contrary to this court’s opinion in that appeal by adjudicating defendant guilty of attempted manslaughter with a firearm. But section 924.34, Florida Statutes, (1989), authorized this court to direct that adjudication, and, as the state suggests, that adjudication was properly understood by the trial court to have been directed inasmuch as a firearm was clearly involved in defendant’s crime....

...(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 *1175 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....

BY THE COURT. The decision of the Fourth District Court of Appeal reported at 318 So.2d 487 , affirming petitioner’s conviction of aggravated assault, is reversed. State v. White, 324 So.2d 630 (Fla.1975). On the authority of Section 924.34, Fla.Stat....

...case and requires a ruling in T.Y.’s favor. That rule states, “If in a petition the offense alleged necessarily includes lesser offenses the *772 court may find the child committed such a lesser offense.” Construing the comparable language of section 924.34, Florida Statutes (1985), 2 in Gould v....

...State, 560 So.2d 1186 , 1190-91 n. 4 (Fla. 3d DCA 1990), approved, 572 So.2d 1380 (Fla.1991). We do not think that the analysis of Rule 8.110(j) in dictum in footnote four in G.C., 560 So.2d at 1190 -91 n. 4, survives Gould any more than this court’s accompanying construction of section 924.34 in G.C., id....

...lee after having been stopped as Erskine in fact did, which is not an element of subsection (3), see Anderson v. State, 780 So.2d 1012 (Fla. 4th DCA 2001), but is encompassed in subsection (1). The cause is remanded for resentencing accordingly. See § 924.34, Fla....

error has been demonstrated. In conformity with § 924.34, Fla.Stat., F.S.A., I would reverse the judgment

...he was "remaining in" the dwelling). In conclusion, we reverse the conviction for sexual battery with a deadly weapon and remand so that the trial judge may enter judgment for the lesser offense of sexual battery pursuant to section 794.011(5). See § 924.34, Fla....

...NOTES [1] In finding the defendant guilty of sexual battery with a deadly weapon under section 794.011(3), the jury necessarily found that defendant was guilty of the unaggravated form of sexual battery enumerated in section 794.011(5), which does not involve physical force or the use of violence. Thus, section 924.34 can be applied in this case without creating any Sixth Amendment concerns under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). See Sigler v. State, 881 So.2d 14, 20 (Fla. 4th DCA 2004)(finding section 924.34 unconstitutional in circumstances where "the previous jury determination cannot be deemed to have necessarily found defendant guilty as to every element" of the lesser included offense).

...M.J.C., who was born on January 4, 1980, was only fifteen at the time of the offense. The evidence established that M.J.C. was guilty of the lesser offense of sexual battery pertaining to offenders less than eighteen years of age. See § 794.011(2)(b). In accordance with the provisions of section 924.34, Florida Statutes (1995), we reverse the judgment and sentence entered below and remand for entry of an appropriate judgment and sentence for the lesser offense....

...New Jersey, 530 U.S. 466, 476-77 (2000). Florida Statutes permit appellate courts to direct a trial court to enter a judgment for a lesser included offense if the jury’s verdict includes a finding of guilt for each element of that lesser included offense. § 924.34, Fla. Stat. (2011). Section 924.34 states: When the appellate court determines that the evidence does not prove the offense for which the defendant was 2  found guilty but does establish guilt of a lesser statu...

...degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense. § 924.34, Fla....

...There is also sufficient evidence in the record that every element of those lesser included offenses was proved to the jury beyond a reasonable doubt. As a result, entry of judgment for the lesser included offenses of possession of the drugs with intent to sell on both Count One and Count Two is proper pursuant to section 924.34. We hereby reverse Defendant’s convictions on Count One and Count Two, but remand this case back to the trial court with instructions to enter judgments of conviction against the Defendant under section 893.13(1)(a) for possessio...

...However, the evidence was not sufficient to establish that a purchase took place. Accordingly, we reverse and remand for entry of a judgment for the lesser-included offense of attempted trafficking in the amount of 400 grams or more but less than 150 kilograms and for resentencing in conformity therewith. See § 924.34, Fla....

...s declared unconstitutional that part of the statute under which the appellant was adjudicated guilty. See Brown v. State, 629 So.2d 841 (Fla.1994). The appellant is correct and we must vacate his adjudication. However, we must also consider whether section 924.34, Florida Statutes (1991), requires that we direct the trial court to enter judgment for a lesser included offense....

State, 694 So.2d 720 (Fla.1997) (interpreting § 924.34, Fla. Stat. (1995))). Mr. Himes also disputes

...me of the theft. For this reason the conviction for grand larceny is in error. Other attacks made by the appellant on the sufficiency of the evidence have been considered and in the opinion of the court are without merit. In conformity to F.S. 1967, Section 924.34, F.S.A., we hereby reverse the judgment and vacate the sentence of the trial court with directions to the trial court to enter judgment of conviction for petty larceny and to impose sentence accordingly, taking into account the incarce...

...shall not grant a new trial but shall find or adjudge the defendant guilty of the lesser degree or lesser offense necessarily included in the charge, unless a new trial is granted by reason of some other prejudicial error. Fla. R. Crim. P. 3.620. See § 924.34, Fla....

...the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense”); State v. Sigler, 967 So. 2d 835, 844 (Fla. 2007) (construing § 924.34 and holding: “To the extent that section 924.34 can be read to provide for conviction of an offense whose elements have not been determined by the jury, it would be unconstitutional. Otherwise, when 10 all of the elements of a lesser offense have been determined by the jury, section 924.34 is a valid exercise of the legislative prerogative allowing appellate courts to direct a judgment for such an offense”); Michelson v. State, 927 So....

established that Lowman committed this offense. Section 924.34, Florida Statutes (1995), requires this court

...State, 187 So.2d 908 (Fla.App.3rd, 1966); Adams v. State, 242 So.2d 723 (Fla.App.1st, 1971). Accordingly, the judgment entered below is reversed and the cause is remanded with directions to the trial court to enter judgment and sentence on the lesser included *518 offense of petit larceny. Section 924.34, Florida Statutes Annotated....

...As in the instant case, the district court of appeal found that G.C.’s conduct did constitute trespass to a conveyance and ordered that adjudication of delinquency be entered on that charge. Because trespass to a conveyance is not a necessarily lesser included offense of grand theft, G.C. argued that section 924.34, Florida Statutes 1 prohibited the court from adju *722 dicating him delinquent on that ground. Section 924.34 provides: 924.34 When evidence sustains only conviction of lesser offense....

...gree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense. § 924.34, Fla.Stat. (1995). The district court of appeal held that (1) chapter 924 does not apply to juvenile cases, which are instead governed by chapter 39, or, alternatively, (2) section 924.34 applies to permissive lesser included offenses as well as necessarily lesser included offenses....

...In Gould , the adult defendant was found guilty of — among other things — sexual battery under section 794.011(4)(a), Florida Statutes (1985). The Second District Court of Appeal concluded that the conviction was not supported by the evidence. Instead of vacating the conviction, however, the court relied on section 924.34 to adjudicate Gould guilty of sexual battery under section 794.011(5), Florida Statutes (1985)....

...ashed the part of the decision directing that Gould be adjudicated guilty on the basis of that statutory section. We held that permissive lesser-included offenses which are supported by the charging document and the facts are not within the scope of section 924.34, which by its express language only encompasses lesser offenses necessarily included in the offense charged....

...court discharged a juvenile who had been incorrectly adjudicated delinquent of grand theft of a motor vehicle, instead of entering adjudication on the basis of a permissive lesser-included offense such as trespass to a conveyance. The court held that Gould mandated that section 924.34 only allowed substitution of necessarily lesser included offenses....

...This Court rightly recognized that section 39.14, Florida Statutes (1981), governed the state’s right to appeal in the juvenile context at that time, and thus “trumped” the two sections of chapter 924 then at issue. 3 However, in the present analysis, we find no counterpart in chapter 39 to section 924.34. Additionally, we find nothing to persuade us that the legislature intended to treat juveniles differently than adults in this context. Therefore, we find that G.C. is not controlling. Because we hold section 924.34 applicable to juvenile proceedings, it becomes necessary for us to decide whether Gould overruled our holding in G.C....

...6 The contents of section 919.16, Florida Statutes (1965), were adopted as Florida Rule of Criminal Procedure 3.510 in 1967. 7 This statute was thereafter repealed in 1970 by chapter 70-339, section 180, Laws of Florida. In section 161 of the same session law, the legislature amended section 924.34, Florida Statutes, to its current form to clarify and simplify the substance of the prior version of the statute....

...8 However, this amendment did not change the use of the language “necessarily included in the offense charged.” Based on the similarity between the language in the former section 919.16 (“offense *724 which is necessarily included in the offense charged”) and current section 924.34 (“lesser offense necessarily included in the offense charged”), it naturally follows from Brown that the substantially similar language in section 924.34 should be read as statutory support consistent with the inherent powers of an appellate court to modify the trial court’s judgment and direct the trial court to enter judgment for a necessarily lesser included offense, or if the charge and proof are present, the permissive lesser included offense. This reasoning was not presented to us in Gould , although it is essentially the analysis of section 924.34 written by Judge Cope in G.C. Given the fact that Brown has been a landmark of our jurisprudence, there is no logical reason to read section 924.34 to eliminate category 4 (now category 2) of the Brown decision. Hence, we hold that section 924.34 refers to both category 1 necessary lesser included offenses and category 2 permissive lesser included offenses....

...We quash the decision below and remand with directions to vacate the adjudications of delinquency of I.T. and J.J. It is so ordered. OVERTON, SHAW, GRIMES and WELLS, JJ., concur. HARDING, J., concurs in result only with an opinion, in which KOGAN, C.J. and ANSTEAD, J., concur. . Section 924.34, Florida Statutes (1995), is identical to section 924.34, Florida Statutes (1989)....

...directions to the trial court to enter judgment for such lesser degree or offense necessarily included in the charge and pass sentence accordingly, unless some other matter or thing appearing in the record makes it advisable that a new trial be had. § 924.34, Fla.Stat....

...at this conviction had to be reversed. However, the State argued that a new trial was not necessary and that this Court should direct the trial court to enter a judgment and sentence for the lesser included offense of culpable negligence pursuant to section 924.34, Florida Statutes (2001)....

...l rights to trial by jury and proof beyond a reasonable doubt?” Id. In accordance with the supreme court’s mandate, we now reconsider this case in light of State v. Sigler, 967 So.2d 835 (Fla.2007). In Sigler , the supreme court examined whether section 924.34 violated a defendant’s right to trial by a jury. 967 So.2d at 837 . The supreme court held that: To the extent that section 924.34 can be read to provide for conviction of an offense whose elements have not been determined by the jury, it would be unconstitutional. Otherwise, when all of the elements of a lesser offense have been determined by the jury, section 924.34 is a valid exercise of the legislative prerogative allowing appellate courts to direct a judgment for such an offense....

of the offense or a lesser included offense. Section 924.34, Fla.Stat. (1977). It must have concluded that

...We reverse Russell’s kidnapping conviction, but otherwise affirm. Although the evidence was sufficient to establish false imprisonment, we conclude that competent, substantial evidence did not exist to support the jury verdict for kidnapping with intent to tamper with evidence. On remand, pursuant to section 924.34, Florida Statutes (2009), 1 the trial court is directed to enter judgment for false imprisonment, and to resentence Russell accordingly. Crain v. State, 894 So.2d 59, 76 (Fla.2004). AFFIRMED, in part; REVERSED, in part; and REMANDED. ORFINGER, C.J., EVANDER and JACOBUS, JJ., concur. . Section 924.34 provides: When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily in...

section 784.03(1) (simple battery) on appeal. See § 924.34, Fla. Stat. (2003). The better practice, in my

...conviction for only second- degree misdemeanor criminal mischief. Therefore, we reverse the conviction for the first-degree misdemeanor and remand for entry of a conviction on the lesser offense of second-degree misdemeanor criminal mischief. See § 924.34, Fla....

...rial court to find a child guilty of a necessarily lesser included offense, but not a permissive lesser included offense. However, the Third District based its construction of rule 8.110® on the supreme court’s construction of similar language in section 924.34, Florida Statutes, in Gould v. State, 577 So.2d 1302 (Fla.1991). The supreme court receded from Gould in I.T., 694 So.2d at 722 , and held that section 924.34 encompasses both necessarily lesser included offenses as well as permissive lesser included offenses....

...Thus, the evidence was insufficient to prove grand theft. All other elements of theft were supported by sufficient evidence. For the reasons set forth above, we reverse and remand to the trial court for entry of a judgment for petit theft in accordance with section 924.34, Florida Statutes (2006)....

...atutes (1979), and found guilty of petit theft under Section 812.014, Florida Statutes (1979). On appeal it is asserted that petit theft is not a lesser included offense of burglary of a conveyance. We agree and reverse the adjudication. Pursuant to Section 924.34, Florida Statutes (1979), we conclude the evidence showed appellant was guilty of trespass of a conveyance under Section 810.08(1), Florida Statutes, which was a necessarily lesser included offense of the crime charged....

...Were we concerned solely with the sufficiency of the evidence as to the uniform element of the charge for battery on a licensed security officer, we would reverse and remand with instructions to convict Mr. Marsh of simple battery instead of battery on a licensed security officer. See § 924.34, Fla....

...See Paige v. State, 641 So.2d 179, 181 (Fla. 5th DCA 1994). See also R.W. v. State, 646 So.2d 783, 784 (Fla. 2d DCA 1994). Because section 893.13(1)® has been ruled void for vagueness, we reverse the judgment, and remand for resentencing in accordance with section 924.34, Florida Statutes, which provides: When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish his guilt of a lesser statutory degree of the offense or a...

...rawals from the two $20,000 checks and the $4,700 in online transfers. See section III(I)(a)-(b), supra. 17 withdrawals is $1,000, Mr. Garcia’s conviction must be reduced to third-degree grand theft. See § 924.34, Fla....

...$4,700 in funds through a series of online transfers from Ms. Macriello’s BOA checking account. Because the value of the property stolen is $1,000, we reduce Mr. Garcia’s conviction for second-degree grand theft to third-degree grand theft and remand for resentencing. See § 924.34, Fla....

...uld have been either with an intent to sell or for his own personal use. We reverse appellant’s conviction for possession of cocaine with intent to sell and remand for entry of a judgment of conviction for simple possession of cocaine, pursuant to section 924.34, Florida Statutes (2016), and for resentencing....

...of the judgment and sentence to reflect a conviction for grand theft in the second degree as a lesser included offense of exploitation of an elderly person or disabled adult. See Jaimes v. State, 51 So. 3d 445, 451 (Fla. 2010) (noting that under section 924.34 of the Florida Statute, “when an appellate court vacates a conviction but determines that the evidence establishes the defendant’s guilt as to a lesser included offense, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the ....

...Bill McCollum, Attorney General, and Bryan G. Jordan, Assistant Attorney General, Tallahassee, Florida, for Respondent. PER CURIAM. We have for review Carrin v. State, 875 So.2d 719, 721 (Fla. 1st DCA 2004), in which the First District Court of Appeal cited section 924.34, Florida Statutes (2001), as construed by I.T....

...2d at 722. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We stayed proceedings in this case pending disposition of State v. Sigler, 967 So.2d 835, 845 (Fla.2007), in which we discussed I.T. and other cases at length in ultimately holding section 924.34 unconstitutional "to the extent that it can be read to allow the appellate court to direct entry of judgment for a lesser-included offense when all of the elements of the lesser-included offense have not been found by a jury beyond a r...

impose sentences therefor as provided by law. See: § 924.34, Fla.Stat., F.S.A.; Bronson v. State, 152 Fla

...State, 192 So. 3d 517 (Fla. 2d DCA 2016), a case where the defendant argued “that the appropriate remedy . . . is a remand for entry of a judgment finding [him] guilty of [the lesser included offense], and for resentencing . . . for that offense” under section 924.34, Florida Statutes,3 “the correct remedy is to remand for a new trial on the offense charged in the information, free of the incorrect jury instruction.” Ortiz, 192 So....

...Alleyne as support for arguing that the Fifth District’s remedy was appropriate. However, because the life sentence accompanying section 782.065 is a mandatory statutory minimum punishment, the Fifth District’s remedy was inconsistent with 3. Section 924.34, Florida Statutes, provides the following: When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statuto...

...lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense. § 924.34, Fla. Stat. (2011); see Sigler v. State, 967 So. 2d 835, 841 (Fla. 2007) (holding that section 924.34 could be unconstitutional in application). - 20 - Alleyne, which clearly stated, “It is no answer to say that the defendant could have received the same sentence with or without that fact.” 133 S....

...We similarly conclude that the Legislature did not intend the burglary statute to be so applied. While the State's evidence was insufficient to prove a burglary, it was (as J.L. acknowledges) sufficient to prove the lesser included offense of trespass. [2] Section 924.34, Florida Statutes (2009), provides that when an appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser offense necessarily included in the o...

...We conclude that appellant’s remaining arguments are without merit. We reverse appellant’s conviction for possession of cocaine with intent to sell or deliver, and remand with directions that the trial court enter judgment for the lesser offense of possession of cocaine and resentence appellant accordingly. See § 924.34, Fla....

...The proof was adequate to sustain the guilt of defendant of petit larceny, an offense of a lesser degree included within the charge. Bornstein v. State, Florida 1951, 54 So.2d 519 ; Lambert v. State, Fla.App.1959, 111 So.2d 68 ; Suarez v. State, Fla.App.1962, 136 So.2d 367 . In conformity to section 924.34, Florida Statutes, F.S.A., we hereby reverse the judgment and sentence of the trial court with direction to enter judgment of conviction for petit larceny and to impose sen *565 tence accordingly, taking into account the incarceration...

murder in the second degree. So, by authority of Section 924.34, Florida Statutes 1951, and F.S.A., the judgment

...ss. Brown v. State, 629 So.2d 841 (Fla.1994). As a result, Williams’ conviction constitutes fundamental error and should be vacated. See Heflin v. State, 595 So.2d 1018 (Fla. 2d DCA 1992); Bell v. State, 585 So.2d 1125 (Fla. 2d DCA 1991). However, section 924.34 requires that we direct the trial court to enter judgment for the lesser included offense of possession of cannabis with intent to sell, purchase, manufacture or deliver under section 893.13(l)(b)....

...However, because the evidence was sufficient to establish the category one lesser included offense of misdemeanor fleeing or attempting to elude a law enforcement officer in violation of section 316.1935(1) and because the jury was properly instructed on it, we remand, pursuant to section 924.34, Florida Statutes, for the trial court to enter a judgment of conviction for that offense....

...h the performance of any governmental or political function”, the intent of which was to reach political terrorism and the like). 14 See Fla. R. Crim. P. 3.620; State v. Sigler, 967 So. 2d 835 (Fla. 2007) (construing parallel statutory provision, section 924.34, Florida Statutes, to permit appellate court to direct trial court to enter judgment for a lesser offense when all elements of the lesser offense have been determined by the jury)....

...lesser included offense of child neglect. See § 827.03(2)(d) ("A person who willfully or by culpable negligence neglects a child without causing great bodily harm, permanent disability, or permanent disfigurement to the child commits a felony of the third degree . . . ."); § 924.34, Fla....

...The defendant argues that when the jury found that he had committed the crime without using a firearm, this necessarily negated an essential element of the crime of aggravated battery. He argues that the offense must be reduced to simple battery. See § 924.34, Fla....

...Without an enumerated felony to base the felony causing bodily injury charge on, the state failed to prove one of the elements of the charge it brought under section 782.051(1). Thus, Braham claims his conviction and sentence on the felony causing bodily injury charge must be reversed. However, section 924.34, Florida Statutes (1997), states: When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesse...

...Thus, it follows that a violation of section 782.051(2) is a lesser statutory degree of felony causing bodily injury than a charge brought pursuant to section 782.051(1). We therefore reverse Braham’s conviction and sentence for felony causing bodily in'jury pursuant to section 782.051(1) and, pursuant to section 924.34, remand the case with directions to enter a judgment and sentence for the lesser degree of felony causing bodily injury under section 782.051(2)....

...accelerated obsolescence because manufacturers are constantly releasing new, improved technology at lower prices.” Lucky v. State, 25 So.3d 691, 692 (Fla. 4th DCA 2010). Because the evidence does not sustain the grand theft conviction pursuant to section 924.34, Florida Statutes (2011), we reverse the conviction for felony grand theft and remand with directions to enter judgment for the lesser included offense of petit theft, a misdemeanor, and to resen-tence Austin on this count....

...We are reversing Canavan’s aggravated stalking conviction because the State did not, as a matter of law, establish the third element of aggravated stalking— that factually Canavan knew the final injunction had been entered against him. However, we do not take issue with the remaining elements of the offense. Section 924.34, Florida Statutes (2007), requires an appellate court to remand for entry of a judgment of conviction for the lesser-included offense of simple stalking where the jury has specifically found the existence of the elements comprising this lesser-included offense....

...And what value did you place on all of this ? A. Eight hundred. Q. Eight hundred dollars ? A. (Witness nodded affirmatively.)” This is insufficient. Suarez v. State, 136 So.2d 367 (2d D.C.A.Fla.1962). The other points raised by appellants are without merit. Pursuant to Florida Statutes § 924.34 (1967), F.S.A., judgment of the trial court is reversed and remanded with instruction to enter judgment of conviction on the lesser included offenses and to pass sentence accordingly....

1996). Although the court in I.T. held that section 924.34 applies in juvenile delinquency proceedings

Todd v. State, 187 So.2d 908 (Fla. 3d DCA 1966); § 924.34, Fla. Stat. (1979). Affirmed in part; reversed

...an automobile. Appellant’s “mere presence as an after-acquired passenger in a vehicle, with knowledge that it has been stolen, [was] insufficient to convict [him] of [automobile] theft.” State v. G.C., 572 So.2d 1380, 1382 (Fla.1991). Although section 924.34 of the Florida Statutes (1989) gives an appellate court the authority to direct a trial court to enter judgment for a lesser offense, the supreme court recently held in Gould v....

...re the jury may decide that the defendant committed armed burglary. The State did not present such evidence in this case. We conclude that, as to count I, Mr. McCoy may properly be convicted of burglary of a dwelling, rather than armed burglary. See § 924.34, Fla....

...Because the State presented no evidence that he used any other deadly weapon during this criminal episode, we reverse the conviction and the resulting three-year minimum mandatory sentence. On remand, the trial court shall enter a judgment and sentence for the necessarily lesser offense of assault. See § 924.34, Fla....

...Such evidence is insufficient to establish the current value of these items. See Aycock v. State, 87 So.3d 1259, 1260 (Fla. 4th DCA 2012); Lucky v. State, 25 So.3d 691, 692-93 (Fla. 4th DCA 2010). We remand for entry of adjudication of petit theft as authorized by section 924.34, Florida Statutes (2006)....

...In the instant case, the State failed to prove beyond a reasonable doubt that the weight of the heroin exceeded the statutory amount of four grams. The improper mixing of the contraband prior to testing lends doubt to the chemist’s findings as to the weight of the substances she received. Accordingly, pursuant to section 924.34, Florida Statutes (1985), we reverse the judgment and sentence for Count II (trafficking in heroin) and remand to the trial court with directions to enter judgment of conviction on the lesser included offense of possession of heroin with intent to sell....

...3d DCA 2001). However, because the evidence was sufficient to support a conviction for the lesser included offense set forth in section 316.1935(1) and the jury necessarily found that the elements of such lesser offense were proven, we remand, pursuant to section 924.34, Florida Statutes (2010), for the trial court to enter a judgment of conviction for that offense....

...The evidence was undisputed that appellants were invited into the victims’ home prior to any crime being committed; therefore, their burglary convictions must be reversed pursuant to Delgado v. State, 25 Fla. L. Weekly S631 , — So.2d-, 2000 WL 1205960 (Fla. Aug. 24, 2000) (on reh’g). In accordance with section 924.34, Florida Statutes (1997), the case is remanded to the trial court for entry of judgments and sentences for simple battery as to appellant Brian Hinchcliff, who was convicted of burglary-with-a-battery in violation of section 810.02(2)(...

...and its refusal to do so was error. -4-  Accordingly, we reverse Wiechert's grand theft conviction and remand with directions that the trial court reduce that conviction to one for second-degree petit theft. See § 924.34, Fla....

...d at trial provided sufficient foundation for a conviction of that offense. The appellant’s conviction is accordingly reversed and this case is remanded for the trial court to enter judgment and impose sentence for violation of section 790.23. See § 924.34, Florida Statutes....

...practical explanation for the conduct is inconceivable.” (citations omitted)). We direct the trial court to vacate Barnes’ first-degree murder conviction, enter a judgment for second-degree murder, and sentence Barnes accordingly. See § 924.34, Fla. Stat. (2014);5 AFFIRMED, in part; REVERSED, in part; and REMANDED. BERGER and WALLIS, JJ., concur. 5 Section 924.34, Florida Statutes (2014), provides: When evidence sustains only conviction of lesser offense.– When the appellate court determines that the evidence does not prove the offense for whi...

...had committed the lesser included offense of trespass to a conveyance. See § 810.08, Fla.Stat. (1987). G.C. contends that we are without authority to sustain the adjudication of delinquency on the ground that he was guilty of the lesser offense. He relies on a portion of the criminal appeals statute, section 924.34, Florida Statutes (1989), which provides: When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish his guilt of a lesser statutory degree of the offens...

...State, 405 So.2d 247, 248 (Fla. 3d DCA 1981) (reducing trespass to attempted trespass) (Brown v. State category two). We conclude that there is ample authority for sustaining the adjudication of delinquency on the basis of the lesser included offense. 2 Alternatively, even if section 924.34 were applicable, G.C. would still not be entitled to relief. The phraseology used in section 924.34, “lesser offense necessarily included in the offense charged,” is substantially identical to the phrase construed in Brown , “offense which is necessarily included in the offense charged.” § 919.16, Fla.Stat....

...The sole authority for the requirement that the jury be instructed on category four, as well as category three, lesser included offenses is Brown’s construction of the section 919.16 phrase “offense which is necessarily included in the offense charged.” It follows that the substantially identical language contained in section 924.34 will support reduction of a charge to either category of lesser included offense....

...at 1011 n. 7; see also In the Interest of R.R., 397 So.2d 1051 (Fla. 4th DCA 1981). In 1987 the classification was changed to category two. The Florida Bar re Standard Jury Instructions — Criminal, 508 So.2d 1221, 1232 (Fla.1987). R.R. relied on section 924.34 as authority for sustaining the adjudication of delinquency on the basis of a lesser included offense....

...State and State v. C.C., that portion of R.R. is no longer good law. . From a mechanical standpoint, an affirmance of an adjudication of delinquency does not involve the vacating of the adjudication and imposing a new adjudication, as is contemplated by section 924.34 in a criminal appeal....

conviction for breaking and entering. Thus, pursuant to § 924.34, Fla.Stat., F.S. A.,1 we reverse the conviction

and by virtue of the provisions of Fla.Stat. § 924.34, F.S.A., the judgment and sentence appealed is

...ttery upon a mentally defective person and direct the trial court on remand to enter judgments of conviction on the lesser included offenses of sexual battery and attempted sexual battery. See Mathis v. *223 State, 682 So.2d 175 (Fla. 1st DCA 1996); § 924.34, Fla....

Winburn v. State, 28 Fla. 339, 9 So. 694; Fla.Stat. § 924.34, F.S.A. We have carefully examined appellant’s

170 So. 445. Pursuant to the provisions of Section 924.-34, F.S.1957, F.S.A., the judgment is reversed

...State, 899 So.2d 382, 383 (Fla. 1st DCA 2005) (holding State has burden of proving each element of an offense “and that it must, in order to avoid the entry of a judgment of acquittal, produce legally sufficient evidence of each element.”). Pursuant to section 924.34, Florida Statutes, we remand with instructions to the trial court to enter a judgment against Appellant for the lesser-included offense of improper exhibition of a firearm on that count, in violation of section 790.10, Florida Statutes, and resen-tence Appellant accordingly....

...3(l)(i), Florida Statutes, is unconstitutionally void for vagueness, we reverse the plea, conviction, and sentence as to Count I and remand with directions for the trial court to enter a conviction for the lesser-included offense of sale of cocaine. § 924.34, Fla.Stat.; Paige v....

...While we affirm three of the kidnapping convictions challenged on appeal, we reverse one of them because the evidence was insufficient under the three-part test set forth in Faison v. State, 426 So. 2d 963 (Fla. 1983), to support the commission of that kidnapping count. Instead, we remand on that count pursuant to section 924.34, Florida Statutes, for entry of a judgment of conviction for the lesser included offense of false imprisonment while armed and masked. I....

...ilitating of the robbery. Here, the manager’s confinement and compelled movement was limited to facilitating the robbery itself. We therefore reverse the defendant’s conviction for kidnapping the manager. Nonetheless, we are compelled by section 924.34, Florida Statutes, to remand for entry of a judgment of conviction and resentencing on the lesser included offense of false imprisonment while armed and masked. Section 924.34 provides: When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense. § 924.34, Fla. Stat. (2015) (emphasis added). “[W]hen all of the elements of a lesser offense have been determined by the jury, section 924.34 is a valid exercise of the legislative prerogative allowing appellate courts to direct a judgment for such an offense.” State v....

remanded to enter judgment, pursuant to Fla.Stat. § 924.34 (1969), F.S.A.5 adjudicating Singleton guilty

See State v. Sigler, 967 So.2d 835 (Fla. 2007) ; § 924.34, Fla. Stat. (2016).

..., it would have been improper for the trial court (or this court, upon reversal of the judgment for burglary) to direct entry of judgment for trespass on property other than a structure or conveyance. See State v. Sigler, 967 So. 2d 835 (Fla. 2007); § 924.34, Fla....

greater is found defective. I think Fla. Stat. § 924.34, F.S.A. (1971) should be interpreted to allow

...blish a third-degree felony. Accordingly, we reverse the judgment and sentence for grand theft. On remand, the trial court shall enter a judgment for petit theft as the lesser statutory degree of the offense that was established by the evidence. See § 924.34, Fla....

...ir and not pointed it at anyone in particular. The court instead reduced the second count to improper exhibition of a firearm, a permissive lesser included offense. Harris was subsequently convicted on both counts. The appellant contends that, under section 924.34, Florida Statutes (1993), when a court finds the evidence is insufficient to support the greater charge, it shall reduce that charge to a necessarily included lesser offense, but may not reduce the charge to a permissive lesser included offense, as happened here. However, section 924.34 is inapplicable to these facts, as it concerns the power of an appellate court to do that which the trial court did not and should have initially done....

possession of not more than five grams of marijuana. Section 924.34, Florida Statutes (1973); e. g., Bornstein

...ined on sofa by defendant holding a gun on her and telling her to "shut up"). Accordingly, we reverse Cole's conviction for armed kidnapping and remand with directions to the trial court to enter a judgment for false imprisonment with a firearm, see § 924.34, Fla....

...1 However, the evidence presented was sufficient to prove the misdemeanor offense of driving with a suspended license. Thus, upon remand, the trial court is directed to enter judgment and resentence Garcia on the misdemeanor charge of driving with a suspended license. See § 924.34, Fla....

...Erroneous Adjudication of Guilt Although there was no flaw in the jury’s verdict, as noted above, the judgment is erroneous because it adjudicates Lincoln guilty of a crime of which he was never found guilty by the jury. The State urges us to use section 924.34, Florida Statues, to correct this error....

...It argues that section confers authority upon us to reverse and remand for the trial court to enter judgment for the second-degree felony under section 800.04(5)(c)2. While we ultimately agree this is the proper remedy, we cannot arrive at this conclusion using section 924.34 based on the plain wording of the statute. Indeed, section 924.34 applies “[w]hen the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessar...

...We have established the jury instruction was properly given, and therefore, Lincoln’s argument for a new trial fails. We agree with the State that the fundamental error arises from the judgment and sentence, but not the jury’s verdict; however, we do not agree that section 924.34 provides the remedy requested. Instead, we have clear precedent to overturn the erroneous judgment and remand to the trial court to enter the proper judgment consistent with the jury verdict....

...Premeditation may be proved by the totality of the circumstances of the case. See Sireci, 399 So.2d 964 ; Phippen, 389 So.2d 991 ; Spinkellink, 313 So.2d 666 . Given the totality of the circumstances of this case, we are satisfied that premeditation has not been proved beyond a reasonable doubt. Accordingly, pursuant to section 924.34, Florida Statutes (1979), the judgment of conviction of murder in the first degree is reversed and the cause remanded to the trial court to enter judgment for murder in the second degree and re-sentence the defendant accordingly....

...rring that the defendant’s actions evidenced a depraved mind regardless of human life necessary to sustain a conviction of second degree murder. 1 However, the record does establish the defendant’s guilt of manslaughter. 2 Therefore, pursuant to Section 924.34, Florida Statutes (1975), the judgment of conviction of second degree murder is reduced to manslaughter and the cause remanded to the trial court for imposition of sentence in accordance herewith....

...1st DCA 1959); Section 812.021, Florida Statutes (1975). Accordingly, the judgment and sentence entered below are reversed and the cause is remanded with directions to the trial court to enter judgment and sentence on the lesser offenses of petit larceny. Section 924.34, Florida Statutes (1975)....

Category 1, lesser included offense of robbery. See § 924.34, Fla. Stat. (1997); Fla. Std. Jury Instr. (Crim

...than in criminal cases. We therefore read Rule 8.110© as giving the trial judge the same options for finding a defendant guilty of a lesser included offense as does Rule 3.510. This holding is consistent with the supreme court’s interpretation of section 924.34, Florida Statutes (1995), in I.T....

...2d DCA 1983). As a secondary issue, the state concedes that although the defendant was charged with and convicted of robbery with a deadly weapon, the record contains no evidence that the defendant had taken any property of value. As a consequence, pursuant to section 924.34, Florida Statutes (1985), even if we were otherwise affirming this cause, it would have to be remanded for the entry of a judgment for the lesser offense of attempted robbery....

...Accordingly, the trial court erred in denying Williams' motion for judgment of acquittal on that charge. The State suggests that the proper remedy upon reversal is to remand with directions for the court to enter a judgment for the permissive lesser-included offense of aggravated assault with a firearm. Section 924.34, Florida Statutes (2014), permits an appellate court to direct entry of a judgment for a permissive lesser-included offense if the jury has determined all the elements of that crime....

...Wallace had in any of his property was the cash in his wallet[,] which he testified was two hundred and twenty-two dollars. Defense counsel's motion for judgment of acquittal again was denied. We conclude the trial court erred. That being so, we address the proper remedy upon remand. Section 924.34, Florida Statutes (2008), provides: When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a les...

...appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense. In I.T. v. State, 694 So.2d 720, 723 (Fla. 1997), the Florida Supreme Court made clear "section 924.34 refers to both category 1 necessary lesser included offenses and category 2 permissive lesser included offenses." Battery is a permissive lesser included offense of robbery....

...ed offense of the offense charged in the indictment *1089 or information and is supported by the evidence), we reverse the judgment and direct the trial court to enter judgment of conviction for the permissive lesser included offense of battery. See § 924.34; Michelson v....

...Phillips’ judgment and sentence for possession of cannabis with intent to sell. On remand, the trial court shall adjudge Mr. Phillips to be guilty of the necessarily lesser included offense of possession of not more than twenty grams of cannabis, section 893.13(6)(b), and sentence him for that offense. See § 924.34, Fla....

...In support of his position the defendant has pointed out to us the following language in the concluding paragraph of the opinion of this court in Spencer v. State, Fla.App. 1968, 217 So.2d 331 : There is, however, ample evidence that the wire stolen had some value at the time of the theft. In conformity to F.S. 1967, Section 924.34, F.S.A., we hereby reverse the judgment and vacate the sentence of the trial court with directions to enter judgment of conviction for petty larceny * * (Emphasis added.) The emphasized language was ,an accurate comment on the record then before the court....

...State has argued that this court has the authority to reduce a conviction overturned on appeal to a lesser offense when the charging document sufficiently alleges the elements of the lesser offense and the evidence supports the conviction for them. § 924.34, Fla....

...acquittal. Accordingly, we reverse the conviction for grand theft from a dwelling and remand to the circuit court for the entry of a judgment of guilt for second-degree petit theft. Reversed and Remanded. STEVENSON, TAYLOR and CONNER, JJ., concur. . Section 924.34, Florida Statutes (2013), provides: When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a les...

...State, 421 So.2d 746, 747 (Fla. 4th DCA 1982) (evidence supported conviction of robbery with a weapon where the defendant attempted to take the victim’s stereo from her car using a knife, but did not threaten the -victim with the knife). Pursuant to section 924.34, Florida Statutes (1997), we reverse the judgment of robbery with a deadly weapon and direct the trial court to enter a judgment of robbery with a weapon and resentence Hall on that conviction....

...Stat. (2013). Because we conclude that the State established with competent, substantial evidence only that the two ATM transactions (totaling $1,000) constituted grand theft, Mr. Garcia’s theft conviction must be reduced to third- degree grand theft. See § 924.34, Fla....

...es of online transfers from Ms. Macriello’s BOA checking account. Because the value of the property stolen is $1,000, we reduce Mr. Garcia’s conviction for second-degree grand theft to third-degree grand theft and remand for resentencing. See § 924.34, Fla. Stat....

...ind the evidence adduced at trial was sufficient to establish Long’s guilt for the lesser included offense of keeping a house of prostitution under section 796.07(2)(a), Florida Statutes (1987). See Wolfe v. State. As we are authorized to do under section 924.34, Florida Statutes (1987), we direct the trial court to enter judgment for the lesser included offense and to resentence Long accordingly....

...51, Florida Statutes (Supp.1996), is inapplicable to juvenile delinquency proceedings. The court certified the above question. The state points out that in I.T. v. State, 694 So.2d 720 (Fla.1997), this Court held that a section of chapter 924, i.e., section 924.34, 2 applies to juvenile proceedings....

...The district court found that the evidence presented at trial did not sustain a charge of grand theft, but it did sustain a charge of trespass in a conveyance and ordered the trial court to enter an adjudication of delinquency based on that charge. 694 So.2d at 721 . On review, this Court held that section 924.34, 4 which allows an appellate court to sustain a conviction of a lesser offense when the evidence does not prove the charged offense, applies to juvenile proceedings. Id. at 722 . We reasoned that section 924.34 also applies to juveniles because chapter 39, the juvenile statute, contains no comparable language addressing this issue....

...WELLS, J., dissents with an opinion, in which PARIENTE, J., concurs. . The legislature recently transferred the portions of chapter 39 relating to juvenile delinquency proceedings to chapter 985, effective October 1, 1997. See Ch. 97-238, Laws of Fla. . Section 924.34 states: 924.34 When evidence sustains only conviction of lesser offense....

...gree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense. § 924.34, Fla....

included lesser offense of the crime charged. See § 924.34, Fla.Stat. (1993); Fla. Std.Jury Instr. (Grim

...Accordingly, the trial court erred in reducing the conviction to simple possession. We therefore reverse the judgment and sentence. On remand the trial court is to enter judgment for the necessarily lesser-included offense of sale of cannabis and resentence Higdon accordingly. See § 924.34, Fla....

...nce of the element of using “force, violence or assault or putting in fear.” § 812.13(1), Fla.Stat. (1989). The appellee concedes the error. Therefore, we reverse the appellant’s conviction and sentence for robbery and, in *52 accordance with section 924.34, Florida Statutes, remand with directions to the trial court to adjudicate the appellant guilty of the necessarily lesser included crime of petit theft and to resentence the appellant accordingly....

State, 694 So.2d 720 (Fla.1997) (applying section 924.34, Florida Statutes in a juvenile delinquency

...1st DCA 2003) (citing Gilbert v. State, 817 So.2d 980, 982 (Fla. 4th DCA 2002)). Mr. Cappelletti, the owner of the property at issue here, conceded on cross-examination that he had guessed at the values to which he testified. Accordingly, pursuant to section 924.34, Florida Statutes (2010), we reverse the conviction and sentence for felony grand theft, and remand with directions to enter judgment for the lesser included offense of petit theft, a misdemeanor; and to resen-tence appellant accordingly....

...or sexual battery upon a person 12 years of age or older, which is a lesser-included offense of the charged offense. § 794.011(5)(a), Fla. Stat. (2014). Accordingly, we direct the trial court to adjudicate Appellant guilty of sexual battery. See § 924.34, Fla. Stat. (2014); see also State v. Sigler, 967 So. 2d 835, 844 (Fla. 2007) (“[W]hen all of the elements of a lesser offense have been determined by the jury, section 924.34 is a valid exercise of the legislative prerogative allowing appellate courts to direct a judgment for such an offense.”). Therefore, we REVERSE Appellant’s judgment on Count I and REMAND with instructions for the trial court to enter judgment for sexual battery and resentence accordingly....

...property because there was no showing that he intended to dispose of the speakers. The State concedes that the evidence was insufficient but argues that this court should remand for entry of an order finding B.B.P. guilty of grand theft pursuant to section 924.34, Florida Statutes (2001)....

...We agree that the evidence was insufficient to support the charge of dealing in stolen property because it was not shown that B.B.P. intended to traffic in the stolen property. See § 812.019(1), Fla. Stat. (2001). However, we do not agree that a finding of guilt may be directed for the crime of grand theft. Section 924.34 provides: When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily in...

...the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense. B.B.P. was found guilty of the nonexistent crime of possession of stolen property, which of course has no lesser-included offenses. Therefore, section 924.34 has no application in this case....