Lesser Offense Necessarily Included In the Offense Charged - Section 924.34 Florida Statutes
Under section 924.34, Florida Statutes (2010):
When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense.
In I.T. v. State, 694 So. 2d 720, 724 (Fla. 1997), the court interpreted section 924.34 to allow an appellate court to modify the trial court's verdict and to enter a judgment either for a necessarily lesser included offense or for a permissive lesser included offense where supported by the allegations in the charging document and the proof at trial.
See also State v. Sigler, 967 So. 2d 835, 842 (Fla. 2007) (explaining that in order for an appellate court to direct a verdict for a lesser included offense, the jury must have found every element of that lesser offense beyond a reasonable doubt).