When one of the ways to commit the offense is to attempt, endeavor, or offer to commit the offense as otherwise defined, then the offense is fully proved by proving such attempt, and there is no separate crime of attempt. See, e.g., Achin v. State, 436 So.2d 30 (Fla. 1982); Adams v. Murphy, 394 So.2d 411 (Fla. 1981), on quest. certified, 598 F.2d 982 (5th Cir. 1979); Pagano v. State, 387 So.2d 349 (Fla. 1980); Milazzo v. State, 377 So.2d 1161 (Fla. 1979); King v. State, 339 So.2d 172 (Fla. 1976), affirming 317 So.2d 852 (Fla. 1st DCA 1975); McAbee v. State, 391 So.2d 373 (Fla. 2d DCA 1980); Silvestri v. State, 332 So.2d 351 (Fla. 4th DCA), approved, 340 So.2d 928 (Fla. 1976). By defining the crimes of theft and grand theft of the first and second degrees so that one of the ways they may be proved is by showing that the accused endeavored to obtain or use the property of another with the requisite criminal intent, the legislature has negated any intention of allowing the general attempts statute to operate with reference to them.

The issue concerns whether a defendant may be convicted of a nonexistent lesser included offense, where defense counsel requested that the jury instruction for the nonexistent offense be given. We find conflict with our decisions in Adams v. Murphy, 394 So.2d 411 (Fla. 1981), and Pagano v. State, 387 So.2d 349 (Fla. 1980). We hold that one may never be convicted of a nonexistent crime and remand for a new trial, finding that defense counsel invited the error.

No lesser included offenses have been identified for these offenses. There is no crime of Attempt to Corrupt Public Servant by Threat.See Pagano v. State , 387 So.2d 349 (Fla. 1980). Unlawfully harming a public servant is a second degree felony.

In this regard, I find the following conclusion of the Florida Supreme Court very persuasive: " If a crime is itself an attempt to do an act or accomplish a result, there can be no lesser[-]included offense of attempting to commit that crime." Pagano v. State, 387 So.2d 349, 350 (Fla.1980). ¶ 81.

See Bragg v. State, 475 So.2d 1255 (Fla. 5th DCA 1985). See generally Pangano v. State, 387 So.2d 349, 350 (Fla. 1980). In construing the statutory provision here under review, the fifth district implicitly found that the statute properly related the proscribed threats to the performance of a public duty when it stated: "The elements of the crime require proof of threat of unlawful harm to a public servant to influence the person threatened to do, or not do, some discretionary act."

No case has been cited to us nor have we found any which permits a conviction for a nonexistent crime. Adams v. Murphy, 394 So.2d 411 (Fla. 1981) (attempted perjury); Pagano v. State, 387 So.2d 349 (Fla. 1980) (attempted corruption by threat against a public servant). In so holding, we are aware of our holding in McIntyre v. State, 380 So.2d 1064 (Fla. 2d DCA 1980).

The Florida cases consistently follow the fundamental error rule in cases in which the nonexistence of the crime of "attempt" is based upon a "merger," or inclusion of acts amounting to an attempt to commit the crime in the statutory definition of the substantive offense itself. See Silvestri v. State, 332 So.2d 351 (Fla. 4th DCA 1976); Pagano v. State, 387 So.2d 349 (Fla. 1980); and McAbee v. State, 391 So.2d 37 (Fla. 2nd DCA 1980). Furthermore, one case has specifically held that there is no such offense as "attempted second degree grand theft" under the current grand theft statute, Section 812.014(1).