Blekley Coicou v. State Of Florida (SC04-637)

SUMMARY: 6-0 decision. The 3rd DCA was reversed for directing the trial court to enter a judgment of conviction on a "lesser included offense." The Court held that attempted second-degree murder is not a necessarily lesser-included offense of attempted first-degree felony murder because attempted second-degree murder contains an element, a depraved mind, that is not an element of attempted first-degree felony murder.

The jury convicted Coicou of attempted first-degree felony murder with a firearm. The jury specifically found that Coicou committed a robbery and used a firearm. On appeal, Coicou argued that the trial court fundamentally erred by convicting him of attempted felony murder because the State used the same act, the shooting of the victim, to prove both the attempted felony murder and the underlying felony offense.

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. 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. The Third District remanded to the trial court with directions to enter a judgment of conviction for attempted second-degree murder.

Attempted second-degree murder is not a necessarily lesser-included offense of attempted first-degree felony murder because attempted second-degree murder contains an element, a depraved mind, that is not an element of attempted first-degree felony murder. 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. The proper remedy is remand to the trial court for retrial on any lesser offenses contained in the charging instrument and instructed on at trial.