LORI JEAN O'BRIAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
PER CURIAM.
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.
BOOTH, MICKLE and BENTON, JJ., concur.
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- Taylor v. State, 444 So. 2d 931 (Fla. 1983)
- Arline v. State, 550 So. 2d 1180 (Fla. 1st DCA 1989)