Section 924.34 Florida Statutes Interpretation
Section 924.34, Florida Statutes (2001), entitled "When evidence sustains only conviction of lesser offense," provides:
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 (Fla. 1997) the court held that section 924.34 extends to include both necessarily and permissive lesser-included offenses.
Further, "section 924.34 . . . allows an appellate court to direct a trial court to enter an adjudication or judgment for a permissive lesser-included offense where supported by the allegations in the charging document and the proof at trial." State v. Sigler, 967 So. 2d 835, 842 (Fla. 2007) (citing I.T., 694 So. 2d at 724).
Moreover, we held in Sigler that section 924.34 permits an appellate court to direct a judgment for a lesser-included offense when the jury determines all of the elements of the lesser offense. See 967 So. 2d at 844.