Opinion
Case No. 4D02-4568.
Opinion filed July 14, 2004.
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Marvin Mounts, Jr., Judge, L.T. Case No. 01-7562 CFA02.
Evelyn A. Ziegler, West Palm Beach, for appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
ON MOTION TO CERTIFY A QUESTION OF GREAT PUBLIC IMPORTANCE
The state has requested, in its motion for rehearing, that we certify the question raised in this case as one of great public importance. We agree that we should because our decision will affect how juries are instructed in many cases, and because we are uncertain as to whether our resolution of this issue is required by Ray v. State, 403 So.2d 956 (Fla. 1981), which defined lesser included offenses, but did not consider the effect of a statute such as section 775.087. We accordingly certify the following question as one of great public importance:
WHERE THE EVIDENCE WOULD SUPPORT FINDINGS UNDER SECTION 775.086, FLORIDA STATUTES, THAT RESULT IN THE PENALTY FOR AGGRAVATED BATTERY BEING THE SAME AS FOR ATTEMPTED SECOND DEGREE MURDER, IS AGGRAVATED BATTERY A LESSER INCLUDED OFFENSE OF SECOND DEGREE MURDER?
STONE and TAYLOR, JJ., concur.