O'Brian v. State, 92-3630
| Decision Date | 31 January 1995 |
| Docket Number | No. 92-3630,92-3630 |
| Citation | 649 So.2d 336 |
| Parties | 20 Fla. L. Weekly D307 Lori Jean O'BRIAN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
An Appeal from the Circuit Court for Okaloosa County; Ben Gordon, Judge.
Nancy A. Daniels, Public Defender, and Nada M. Carey, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and Sonya Roebuck Horbelt, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, for appellee.
We must reverse O'Brian's conviction for attempted manslaughter and remand for a new trial because a jury instruction was given on attempted manslaughter by culpable negligence, a non-existent crime in Florida. Taylor v. State, 444 So.2d 931 (Fla.1983); Arline v. State, 550 So.2d 1180 (Fla. 1st DCA 1989). We also remand for resentencing on O'Brian's conviction for aggravated battery (a second-degree felony), as the State concedes that the sentence was improperly enhanced to a first-degree felony under section 775.087(1), Florida Statutes (1991), based upon O'Brian's use of a weapon in committing the offense.
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Lewellen v. State
...have no merit but which warrant discussion. Relying on Valladares v. State, 658 So.2d 626 (Fla. 5th DCA 1995), and O'Brian v. State, 649 So.2d 336 (Fla. 1st DCA 1995), Lewellen argues that his conviction must be vacated because he was convicted of petit theft of a motor vehicle which he cla......
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