JOSEPH COLEMAN

v.

STATE OF FLORIDA

KHOUZAM, Chief Judge. Joseph Coleman appeals his judgment and sentence for attempted first-degree murder and kidnapping entered following retrial on remand from this court's reversal in Coleman v. State, 157 So. 3d 368 (Fla. 2d DCA 2015). We reverse the judgment and conviction for attempted first-degree murder and remand with directions

- 2 - for the trial court to reduce Coleman's conviction for that offense to the lesser-included offense of attempted second-degree murder and resentence him accordingly.

We affirm in all other respects.¹ State, 63 So. 3d 760 (Fla. 2d DCA 2011). Coleman later filed a petition alleging ineffective assistance of appellate counsel, which this court granted and concluded entitled Coleman to a belated appeal. Coleman v. State, 110 So. 3d 971, 971 (Fla. 2d DCA 2013). In the belated appeal, this court reversed Coleman's conviction and sentence for attempted second-degree murder and remanded for a new trial on that offense. Coleman, 157 So. 3d at 370.

However, on remand, Coleman was erroneously retried on the original charges, and this time the jury found him guilty of attempted first-degree murder and kidnapping. He was 1Our prior opinion directed a retrial on the attempted murder charge only, not the kidnapping charge. Coleman, 157 So. 3d at 370. Inexplicably, however, Coleman was retried on both charges. Because our record does not reflect any challenge below or on appeal to the propriety of the retrial on the kidnapping charge, we affirm the judgment and sentence for that conviction without comment. But we caution the circuit court clerk and representatives from the Department of Corrections that this affirmance does not constitute a second conviction for kidnapping.

- 3 - sentenced to a term of natural life with a twenty-five-year mandatory minimum sentence.

On appeal, Coleman argues—and the State appropriately concedes—that his conviction on retrial for attempted first-degree murder violates the prohibition against double jeopardy because the original jury acquitted him of that charge when it convicted him of the lesser-included offense of attempted second-degree murder. The First District's decision in Middleton v. State, 131 So. 3d 815 (Fla. 1st DCA 2014), is instructive. In Middleton, the "[a]ppellant assert[ed] his prior conviction for the lesser[- ]included offense of second-degree murder with a firearm was an implied acquittal on the charged offense of first-degree murder with a firearm for purposes of double jeopardy," and the First District agreed. Id. at 816.

Accordingly, the court concluded that "appellant's retrial and conviction for first-degree murder with a firearm violated the constitutional prohibition against double jeopardy." Id. at 818. Similarly, in the instant case, the original jury's verdict on the lesser-included offense of attempted second-degree murder was an acquittal on the charge of attempted first-degree murder.

Therefore, it was a clear violation of double jeopardy principles for Coleman to be retried on the attempted first-degree murder charge. Rather, Coleman should have been retried on the charge of attempted second-degree murder, as this court explicitly directed. Coleman, 157 So. 3d at 370 ("[W]e reverse Mr. Coleman's conviction for attempted second-degree murder and remand for a new trial on that offense.").

We reverse and remand with directions that the trial court reduce Coleman's conviction to the lesser-included offense of attempted second-degree murder and resentence him accordingly. See Middleton, 131 So. 3d at 818.

- 4 - Affirmed in part, reversed in part, and remanded with directions.

LaROSE and SLEET, JJ., Concur.