Stone v. State

ON REHEARING

The motion for rehearing is granted. The opinion of April 18, 1990 is withdrawn and the following opinion is substituted.

By way of cross appeal, the state argues that the trial court erred in reducing the conviction from attempted first degree murder to attempted second degree murder. We reverse.

The jury was instructed that in order to find the defendant guilty as charged it must find premeditation was proved beyond a reasonable doubt. The jury did, in fact, return a verdict of guilty of attempted first degree murder with a firearm.

At a post-trial hearing, the defendant’s counsel…