          Supreme Court of Florida
                                   ____________

                                   No. SC15-1816
                                   ____________

                         GANGAPERSAD RAMROOP,
                                Petitioner,

                                          vs.

                              STATE OF FLORIDA,
                                  Respondent.

                                  [March 30, 2017]

PARIENTE, J.

      The conflict issue in this case is whether section 782.065, Florida Statutes

(2013),1 creates a substantive criminal offense of attempted murder of a law

enforcement officer that includes as an essential element that the defendant knew

that the victim was a law enforcement officer. In Ramroop v. State, 174 So. 3d

584 (Fla. 5th DCA 2015), the Fifth District Court of Appeal held that section

782.065, titled “Murder; law enforcement officer, correctional officer, correctional

probation officer,” requires knowledge but is a reclassification statute that “in and



     1. The current version of this statute is identical to the 2013 version under
which Ramroop was tried. See § 782.065, Fla. Stat. (2016).
of itself, is not a substantive crime.” Id. at 598. Gangapersad Ramroop, who

received two life sentences, including a mandatory life sentence for attempted

second-degree murder of a law enforcement officer, seeks review of the Fifth

District’s decision on the ground that it expressly and directly conflicts with this

Court’s decisions in Wright v. State, 586 So. 2d 1024 (Fla. 1991), and State v.

Darst, 837 So. 2d 394 (Fla. 2002), on whether the crime of attempted murder of a

law enforcement officer constitutes a substantive criminal offense. We have

jurisdiction. See art. V, § 3(b)(3), Fla. Const.

       The Fifth District correctly concluded that the jury instructions in

Ramroop’s trial were erroneous by not requiring the jury to find that Ramroop

knew that the victim was a law enforcement officer because knowledge is an

essential element of the crime defined by section 782.065. However, the Fifth

District incorrectly determined that section 782.065 is a reclassification statute that

does not create a separate substantive offense. We conclude that section 782.065 is

a reclassification statute that creates a substantive offense and, therefore, the proper

remedy for the erroneous jury instructions in Ramroop’s case would have been to

vacate both Ramroop’s convictions—attempted second-degree murder of a law

enforcement officer and first-degree felony murder of another victim, which was

based on the attempted second-degree murder conviction—and remand for a new

trial. Because the Fifth District incorrectly determined that section 782.065 does


                                         -2-
not create a separate substantive offense, it improperly remanded Ramroop’s case

for resentencing on the lesser-included offense of attempted second-degree murder

instead of ordering a new trial. Id. at 599. In doing so, the Fifth District left intact

the conviction of first-degree felony murder of a separate victim, for which a life

sentence was also imposed. Id. Accordingly, we quash the Fifth District’s

decision to the extent that it held that section 782.065 does not create a substantive

offense and remand with directions to order a new trial on the charges of attempted

second-degree murder of a law enforcement officer and first-degree felony

murder.2

                                  BACKGROUND

      The Fifth District explained the facts underlying Ramroop’s convictions as

follows:

             During the early morning hours of July 4, 2013, several officers
      of the Orlando Police Department attempted to pull over Ramroop’s
      vehicle for a traffic violation. A chase ensued, whereupon Ramroop
      ran several red lights, and allegedly shot at one of the officers
      involved in the pursuit, Officer Christopher Brillant. Ramroop
      ultimately struck another vehicle in an intersection, causing the death
      of the driver of that vehicle, Robert Charles John Hunter. Hunter was
      not wearing a seatbelt at the time of the crash, and his body was
      ejected from the vehicle onto the pavement. Ramroop was
      apprehended at the scene of the crash and subsequently charged by
      information with (1) attempted first-degree murder of an officer

      2. Ramroop does not challenge and we do not address his conviction for
Knowingly Discharging a Firearm from a Vehicle Within 1000 Feet of a Person.
§ 790.15(2), Fla. Stat. (2013).


                                          -3-
      engaged in the lawful performance of a legal duty and (2) knowingly
      discharging a firearm from a vehicle within 1000 feet of a person.
      Ramroop was also separately indicted for first-degree murder of
      Hunter.

Ramroop, 174 So. 3d at 587.

      A grand jury indicted Ramroop of first-degree murder for unlawfully killing

Robert Charles John Hunter “while engaged in the perpetration of an attempt to

murder [Officer Brillant] or while escaping from the immediate scene of an

attempt[] to murder [Brillant]” in violation of section 782.04(1)(a)(2). Ramroop

was separately charged by information with attempted first-degree murder of a law

enforcement officer in violation of sections 782.04(1)(a)(1), 777.04, 782.065,

775.087(1), 775.087(2), and 775.0823, Florida Statutes. The information alleged

that the crime of attempted first-degree murder arose from a “premeditated design

to effect the death of Christopher Brilliant [sic], attempt to murder Christopher

Brilliant [sic], by shooting a gun at Christopher Brilliant [sic] thus creating in the

mind of Christopher Brilliant [sic] a well founded fear that violence was about to

take place, while Christopher Brilliant [sic], a law enforcement officer for the

Orlando Police Department, was engaged in the lawful performance of a legal

duty; to-wit: enforcement of the traffic laws.”

      At trial, the special verdict form as to the indictment listed the following

offenses:




                                          -4-
      _____ WE, THE JURY, find the Defendant, guilty of First Degree
           Murder, as charged in the Indictment.
      _____ WE, THE JURY, find the Defendant, guilty of the lesser
           included offense of Manslaughter.
      _____ WE, THE JURY, find the Defendant, not guilty.

      The special verdict form as to Count 1 of the information listed the

following offenses:

      _____ WE, THE JURY, find the Defendant, guilty of Attempted First
           Degree Murder, as charged in the Information.
      _____ WE, THE JURY, find the Defendant, guilty of the lesser
           included offense of Attempted Second Degree Murder.
      _____ WE, THE JURY, find the Defendant, guilty of the lesser
           included offense of Attempted Voluntary Manslaughter.
      _____ WE, THE JURY, find the Defendant, guilty of the lesser
           included offense of Aggravated Assault on a Law Enforcement
           Officer.
      _____ WE, THE JURY, find the Defendant, guilty of the lesser
           included offense of Assault.
      _____ WE, THE JURY, find the Defendant, not guilty.

(Emphasis added.) The jury convicted Ramroop of the first-degree felony murder

of Hunter and the lesser-included offense of attempted second-degree murder of a

law enforcement officer, which served as the underlying felony for the conviction

of first-degree felony murder.

      As to section 782.065, the verdict form reflects that the jury made a special

finding “that [the victim] was at the time of the offense a police officer for the City

of Orlando in the lawful execution of his legal duties.” On appeal, the Fifth

District found that “the jury instruction pertaining to the jury’s special finding that

the victim was a law enforcement officer engaged in the performance of his duties

                                         -5-
at the time of the offense failed to also require the jury to find that Ramroop had

knowledge of the victim’s status.” Ramroop, 174 So. 3d at 586. However, the

Fifth District concluded that because section 782.065 is a reclassification statute

that does not create a separate substantive offense, but rather “operates solely to

reclassify . . . offenses committed against law enforcement officers,” reversing

Ramroop’s conviction of first-degree felony murder was unnecessary, and the

proper remedy for the erroneous jury instructions was to vacate the jury’s special

finding and remand Ramroop’s case for resentencing on the lesser-included

offense of attempted second-degree murder without reclassification. Ramroop,

174 So. 3d at 598-99.

                                    ANALYSIS

      The issue before us is whether section 782.065 creates a separate substantive

offense. Because this is a pure question of law, our review is de novo. See

Haygood v. State, 109 So. 3d 735, 739 (Fla. 2013).

      The United States Supreme Court made clear in Apprendi v. New Jersey,

530 U.S. 466 (2000), that the Sixth Amendment to the United States Constitution

guarantees each criminal defendant the right “to ‘a jury determination [of guilt on]

every element of the crime with which he is charged, beyond a reasonable

doubt.’ ” Id. at 476-77 (quoting United States v. Gaudin, 515 U.S. 506, 510

(1995)) (citations omitted). This principle guides our analysis.


                                         -6-
      The text of section 782.065 states in full:

             Murder; law enforcement officer, correctional officer,
      correctional probation officer.—Notwithstanding
      ss. 775.082, 775.0823, 782.04, 782.051, and chapter 921, a defendant
      shall be sentenced to life imprisonment without eligibility for release
      upon findings by the trier of fact that, beyond a reasonable doubt:
             (1) The defendant committed murder in the first degree in
      violation of s. 782.04(1) and a death sentence was not imposed;
      murder in the second or third degree in violation of s. 782.04(2), (3),
      or (4); attempted murder in the first or second degree in violation of
      s. 782.04(1)(a)1. or (2); or attempted felony murder in violation of
      s. 782.051; and
             (2) The victim of any offense described in subsection (1) was
      a law enforcement officer, part-time law enforcement officer,
      auxiliary law enforcement officer, correctional officer, part-time
      correctional officer, auxiliary correctional officer, correctional
      probation officer, part-time correctional probation officer, or auxiliary
      correctional probation officer, as those terms are defined in s. 943.10,
      engaged in the lawful performance of a legal duty.

§ 782.065, Fla. Stat. (2013).

      Similar to section 782.065, section 784.07, titled “Assault or battery of law

enforcement officers, firefighters, emergency medical care providers, public transit

employees or agents, or other specified officers: reclassification of offenses;

minimum sentences,” provides for reclassification “[w]henever any person is

charged with knowingly committing an assault or battery upon a law enforcement

officer . . . while the officer . . . is engaged in the lawful performance of his or her

duties.” § 784.07(2), Fla. Stat. (2016). Section 784.07 provides the lesser-

included offense of aggravated assault on a law enforcement officer that was listed

on the verdict form as to Count 1 of the information in Ramroop’s trial.

                                          -7-
      Subsection (3) of a former version of section 784.07 eventually became what

is now section 782.065. As the Fifth District explained:

             Looking beyond the plain language of the statute, we begin our
      analysis by reviewing the Florida Supreme Court’s earlier
      determination of whether section 784.07(3), Florida Statutes (1993),
      which, as discussed below, ultimately progressed to the statute at
      issue, section 782.065, required knowledge of the victim’s status as a
      law enforcement officer. In 1993, section 784.07—entitled Assault or
      battery of law enforcement officers, firefighters, or other specified
      officers; reclassification of offenses.—provided in relevant part as
      follows:
                    (2) Whenever any person is charged with
             knowingly committing an assault or battery upon a law
             enforcement officer . . . engaged in the lawful
             performance of his duties, the offense for which the
             person is charged shall be reclassified as follows:
             ....
                    (3) Notwithstanding the provisions of any other
             section, any person who is convicted of attempted murder
             of a law enforcement officer engaged in the lawful
             performance of his duty or who is convicted of attempted
             murder of a law enforcement officer when the motivation
             for such attempt was related, all or in part, to the lawful
             duties of the officer, shall be guilty of a life felony,
             punishable as provided in s. 775.0825.

      § 784.07(2)-(3), Fla. Stat. (1993). As drafted, knowledge of the victim’s
      status as a law enforcement officer was not expressly required as an element
      under subsection (3) to prove the attempted murder of a law enforcement
      officer.

Ramroop, 174 So. 3d at 592-93 (footnote omitted).

      In Wright, this Court held that section 784.07 defines the “substantive

offense” of battery on a law enforcement officer and “requires as an essential

element proof that the victim was in fact a law enforcement officer.” 586 So. 2d at

                                        -8-
1030. Two years later, again reviewing section 784.07 in Thompson v. State, this

Court “addressed on appeal whether the trial court erred in denying the defendant’s

requested jury instruction, which included knowledge of the victim’s status as a

law enforcement officer as an element of attempted murder of a law enforcement

officer under section 784.07(3), Florida Statutes (1993).” Ramroop, 174 So. 3d at

593 (citing Thompson, 695 So. 2d 691, 691 (Fla. 1993)). This Court concluded

that “knowledge of the victim’s status as a law enforcement officer is a necessary

element of the offense” defined in section 784.07, Florida Statutes (1993), and

reversed the defendant’s conviction for attempted felony murder. Thompson, 695

So. 2d at 693. Therefore, taking Wright and Thompson together, it is clear that

knowledge that the victim is a law enforcement officer is an essential element of

the crime defined by section 784.07. Thus, relying on our case law regarding

section 784.07, the Fifth District correctly held that “section 782.065 requires

knowledge of the victim’s status as a law enforcement officer.” Ramroop, 174 So.

3d at 597. Accordingly, for a defendant to be convicted of the offense defined in

section 782.065, the jury must find beyond a reasonable doubt that the defendant

knew, when the offense was committed, that the victim was a law enforcement

officer. Id.; see Thompson, 695 So. 2d at 693; see also Apprendi, 530 U.S. at 476-

77.




                                        -9-
      Section 782.065, which sets forth the crime of attempted murder of a law

enforcement officer, is functionally the same as section 784.07, which sets forth

the crime of assault and battery on a law enforcement officer, except of course that

the crime is different and the penalty for violating section 782.065 is a mandatory

life sentence. In Darst, we unanimously held that section 784.07 was not an

enhancement statute but a reclassification statute that creates a substantive crime:

             We have for review the decision of the Fifth District Court of
      Appeal, Darst v. State, 816 So. 2d 680 (Fla. 5th DCA 2002), both
      declaring section 784.07 of the Florida Statutes (1999) to be an
      enhancement statute, and certifying conflict with Mills v. State, 773
      So. 2d 650 (Fla. 1st DCA 2000). We have jurisdiction. See art. V,
      § 3(b)(4), Fla. Const.
             This Court granted review in Mills, and addressed the issue
      presented here. See Mills v. State, 822 So. 2d 1284 (Fla. 2002).
      There we held section 784.07 of the Florida Statutes is a
      reclassification statute, not an enhancement statute, and thus creates a
      substantive crime. See id. at 1287. As the district court’s holding is
      inconsistent with this Court’s decision in Mills, its decision is quashed
      and the case is remanded to the district court for further proceedings
      consistent with Mills.
837 So. 2d at 395.

      The Fifth District in Darst, contrary to the First District in Mills, erroneously

held that section 784.07 was an enhancement statute and was created to “increase

the penalties for the enumerated crimes of assault, aggravated assault, battery and

aggravated battery for offenders who commit these crimes upon law enforcement

officer.” Darst v. State, 816 So. 2d 680, 682 (Fla. 5th DCA 2002) (quoting Merritt

v. State, 712 So. 2d 384, 385 (Fla. 1998)). However, the Fifth District


                                        - 10 -
acknowledged that “section 784.07(c) could also be interpreted as creating a

substantive offense because it contains the element of knowingly committing the

act of aggravated assault on a law enforcement officer.” Id. at 683. The Fifth

District stated that the First District’s decision in Mills v. State, 773 So. 2d 650

(Fla. 1st DCA 2000), held that this same subsection actually creates a substantive

offense dealing with assault or battery on a law enforcement officer. Darst, 816

So. 2d at 683.

      We acknowledge that, in Merritt, we stated that section 784.07, Florida

Statutes (1995), the precursor to section 782.065, “is an enhancement statute rather

than a statute creating and defining any criminal offense.” 712 So. 2d 384, 385

(Fla. 1998). However, that statement directly contradicts our subsequent opinion

in Darst. Because our statement in Merritt was made before the United States

Supreme Court opinion in Apprendi and our decision in Darst, we conclude that

the statement was erroneous. Thus, to the extent that our statement in Merritt

misled the Fifth District, we now clarify this issue.

      In the case below, the Fifth District relied on our earlier decision in Mills,

822 So. 3d at 1287, to conclude that “section 782.065 operates as a reclassification

statute” rather than an enhancement statute because it “does not ‘cut across some

or all criminal statutes.’ ” Ramroop, 174 So. 3d at 598. As we have pointed out,

we held in Darst that section 784.07 of the Florida Statutes “is a reclassification


                                         - 11 -
statute, not an enhancement statute, and thus creates a substantive crime.” 837 So.

2d at 395. Therefore, the Fifth District erred when it concluded that a

reclassification statute does not create a separate substantive crime because “it

increase[s] a defendant’s sentence beyond the maximum possible sentence of the

substantive crime and is only applied following a jury’s finding that the defendant

violated a particular subsection of section 782.04 or 782.051.” Ramroop, 174 So.

3d at 598.

      The United States Supreme Court’s decision in Apprendi made clear that

any factual finding that increases the maximum sentence must be found by a jury

beyond a reasonable doubt. 530 U.S. 466. Indeed, referring to its decision in

Apprendi, the United States Supreme Court stated in Alleyne v. United States,

“that any fact that increases the mandatory minimum is an ‘element’ that must be

submitted to the jury.” 133 S. Ct. 2151, 2155 (2013). The Supreme Court further

explained:

             [I]t is impossible to dispute that facts increasing the legally
      prescribed floor aggravate the punishment. . . . Elevating the low-end
      of a sentencing range heightens the loss of liberty associated with the
      crime: the defendant’s “expected punishment has increased as a result
      of the narrowed range” and “the prosecution is empowered, by
      invoking the mandatory minimum, to require the judge to impose a
      higher punishment than he might wish.” Apprendi [530 U.S.] at 522,
      (Thomas, J., concurring). Why else would [the legislative body] link
      an increased mandatory minimum to a particular aggravating fact
      other than to heighten the consequences for that behavior? . . . This
      reality demonstrates that the core crime and the fact triggering the


                                        - 12 -
      mandatory minimum sentence together constitute a new, aggravated
      crime, each element of which must be submitted to the jury.
              Defining facts that increase a mandatory statutory minimum to
      be part of the substantive offense enables the defendant to predict the
      legally applicable penalty from the face of the indictment.
      See Apprendi, 530 U.S. at 478-479. It also preserves the historic role
      of the jury as an intermediary between the State and criminal
      defendants. See United States v. Gaudin, 515 U.S. [506,] 510-511,
      [(1995)] (“This right was designed ‘to guard against a spirit of
      oppression and tyranny on the part of rulers,’ and ‘was from very
      early times insisted on by our ancestors in the parent country, as the
      great bulwark of their civil and political liberties’ ” (quoting 2 J.
      Story, Commentaries on the Constitution of the United States
      §§ 1779, 1780, pp. 540-541 (4th ed. 1873))); Williams v. Florida, 399
      U.S. 78, 100, (1970) (“[T]he essential feature of a jury obviously lies
      in [its] interposition between the accused and his accuser”); Duncan v.
      Louisiana, 391 U.S. 145, 155 (1968) (“A right to jury trial is granted
      to criminal defendants in order to prevent oppression by the
      Government”).
              ....
              As noted, the essential Sixth Amendment inquiry is whether a
      fact is an element of the crime. When a finding of fact alters the
      legally prescribed punishment so as to aggravate it, the fact
      necessarily forms a constituent part of a new offense and must be
      submitted to the jury. It is no answer to say that the defendant could
      have received the same sentence with or without that fact. It is
      obvious, for example, that a defendant could not be convicted and
      sentenced for assault, if the jury only finds the facts for larceny, even
      if the punishments prescribed for each crime are identical. One reason
      is that each crime has different elements and a defendant can be
      convicted only if the jury has found each element of the crime of
      conviction.

Id. at 2161-62 (second and third emphasis added), overruling Harris v. United

States, 536 U.S. 545 (2002). Therefore, the same principles that apply to treating

section 784.07 as a substantive offense, requiring knowledge as an essential

element, apply equally to section 782.065. Due to the knowledge requirement and

                                       - 13 -
the fundamental, constitutional principles announced in Apprendi, a defendant may

be subject to the increased sentence set forth in section 782.065 only when a jury

finds beyond a reasonable doubt that the offense was committed with knowledge

that the victim was a law enforcement officer. In other words, a defendant is not

subject to the increased punishment under section 782.065 if he or she did not

know that the victim was a law enforcement officer when he or she committed the

offense. Thus, we hold that section 782.065 is a reclassification statute that creates

a substantive offense, which includes knowledge as an essential element.

                      PROPER REMEDY IN THIS CASE

      We now turn to determine the proper remedy for the erroneous jury

instructions in Ramroop’s trial on an essential element of the crime of attempted

murder of a law enforcement officer, charged under section 782.065. As the Fifth

District stated, “because the jury was not instructed to determine whether Ramroop

had knowledge of Officer Brillant’s status as a law enforcement officer, his

sentence for attempted second-degree murder is erroneous.” Ramroop, 174 So. 3d

at 599. The Fifth District concluded that because 782.065 was not a substantive

offense, the appropriate remedy for failing to properly instruct the jury on the

knowledge requirement was to reduce Ramrooop’s conviction to the lesser-

included offense without reclassification under section 782.065. Id. Ramroop




                                        - 14 -
argues, however, that when a fundamentally erroneous jury instruction is given, the

proper remedy is to reverse for a new trial. We agree.

      This Court has “long held that fundamental error occurs in a jury instruction

where the instruction pertains to a disputed element of the offense and the error is

pertinent or material to what the jury must consider to convict.” Haygood, 109 So.

3d at 741 (citing Delva v. State, 575 So. 2d 643, 644-45 (Fla. 1991)). As this

Court explained in Reed, “[f]undamental error is not subject to harmless error

review. By its very nature, fundamental error has to be considered harmful. If the

error was not harmful, it would not meet our requirement for being fundamental.”

Id. at 369-70.

      The error in the jury instructions in Ramroop’s trial pertained to both

attempted first-degree murder and attempted second-degree murder of a law

enforcement officer. Attempted second-degree murder of a law enforcement

officer, the exact crime of which Ramroop was convicted, is a lesser-included

offense one degree removed from the crime of attempted first-degree murder of a

law enforcement officer—the crime charged in the information. See State v.

Montgomery, 39 So. 3d 252, 259 (Fla. 2010). Pursuant to our case law, because

the erroneous jury instruction in Ramroop’s trial pertained to an element of the

crime that was necessary for the jury to convict Ramroop of the crime as charged,

the jury instructions were fundamental error. Haygood, 109 So. 3d at 741; Reed,


                                        - 15 -
837 So. 2d at 369-70 (“Fundamental error is not subject to harmless error

review.”). Further, because the error pertained to an offense within one degree of

the crime for which Ramroop was convicted, this fundamental error is per se

reversible. Montgomery, 39 So. 3d at 259; Pena v. State, 901 So. 2d 781, 787 (Fla.

2005). Therefore, we conclude that the erroneous jury instructions in Ramroop’s

case were fundamental error and require reversal of his conviction for attempted

second-degree murder and felony first-degree murder because these convictions

were interdependent.

      This conclusion is further illustrated by the discrepancies within the jury

instructions and verdict form that were used in Ramroop’s trial. In the

Introduction to Attempted Homicide, the jury instructions stated:

             In this case Gangapersad Ramroop is accused of Attempted
      First Degree Murder with a Firearm.
             Attempted murder in the first degree includes the lesser crimes
      of attempted murder in the second degree and attempted voluntary
      manslaughter, all of which are unlawful.
             An attempted killing that is excusable or was committed by the
      use of justifiable deadly force is lawful.
             If you find that there was an attempted killing of Christopher
      Brilliant [sic] by Gangapersad Ramroop, you will then consider the
      circumstances surrounding the attempted killing in deciding if it was
      attempted first degree murder, or attempted second degree murder, or
      attempted voluntary manslaughter, or whether the attempted killing
      was excusable or resulted from justifiable use of deadly force.

However, the explanation of “lesser included crimes or attempts” later in the jury

instructions stated, “The lesser crimes indicated in the definition of Attempted First


                                        - 16 -
Degree Murder are Attempted Second Degree Murder, Attempted Voluntary

Manslaughter, Aggravated Assault and Assault.” In other words, the latter

explanation added additional lesser included charges of “Aggravated Assault and

Assault.” Ironically, the jury instructions given on the lesser-included offenses of

attempted second-degree murder and aggravated assault demonstrate the error that

we seek to remedy in this case.

      The jury instructions on attempted second-degree murder stated:

             To prove the crime of Attempted Second Degree Murder, the
      State must prove the following two elements beyond a reasonable
      doubt:
             1. Gangapersad Ramroop intentionally committed an act which
      would have resulted in the death of Christopher Brilliant [sic] except
      that someone prevented Gangapersad Ramroop from killing
      Christopher Brilliant [sic] or he failed to do so.
             2. The act was imminently dangerous to another and
      demonstrating a depraved mind without regard for human life.
             ....
             In order to convict of Attempted Second Degree Murder, it is
      not necessary for the State to prove the defendant had an intent to
      cause death.

(Citing §§ 782.04(2), 777.04, Fla. Stat.).

      Along with the jury instructions on attempted second-degree murder were

the instructions on “Aggravation of a Felony Victim Law Enforcement Officer,”

which stated, in pertinent part:

            If you find that Gangapersad Ramroop committed the crime
      charged in count one of the information or any lesser included offense
      and you also find beyond a reasonable doubt that Christopher Brilliant


                                        - 17 -
      [sic] was a law enforcement officer in the lawful performance of a
      legal duty your finding should reflect that in the special verdict form.

      The jury instructions on the lesser-included offense of aggravated assault on

law enforcement stated:

             To prove the crime of Aggravated Assault on a Law
      Enforcement Officer, the State must prove the following seven
      elements beyond a reasonable doubt. The first three elements define
      assault.
             1. Gangapersad Ramroop intentionally and unlawfully
      threatened, either by word or act, to do violence to Christopher
      Brill[]ant.
             2. At the time, Gangapersad Ramroop appeared to have the
      ability to carry out the threat.
             3. The act of Gangapersad Ramroop created in the mind of
      Christopher Brill[]ant a well-founded fear that the violence was about
      to take place.
             4. The assault was made with a deadly weapon.
             5. Christopher Brill[]ant was at the time a law enforcement
      officer.
             6. Gangapersad Ramroop knew Christopher Brill[]ant was a
      law enforcement officer.
             “Willfully” means intentionally and purposely.

(Citing § 784.07(c), Fla. Stat.) (emphasis added).

      These jury instructions make clear that aggravated assault on a law

enforcement officer, which includes a knowledge requirement, is treated as a

separate, substantive crime under section 784.07. Not only was it charged as a

distinct crime, but, while the jury was not required to find that Ramroop knew that

Officer Brillant was a law enforcement officer to convict him of the greater offense

of attempted second-degree murder, the jury instructions required knowledge as an


                                        - 18 -
element of the lesser-included offense of aggravated assault on a law enforcement

officer.

       Indeed, the jury’s verdict reflects that they did not find any premeditation or

knowledge of the victim’s status on Ramroop’s part before he committed the

offense—namely discharging his firearm out of his driver’s window towards

Officer Brillant. The jury did not convict Ramroop of attempted first-degree

murder, which would have required a finding of premeditation and intent to kill

Officer Brillant. Instead, they found Ramroop guilty “of the lesser included

offense of Attempted Second Degree Murder” with the aggravation that Brillant

“was at the time of the offense a police officer for the City of Orlando in the lawful

execution of his legal duties”—two findings that did not include knowledge as an

element. Likewise, the jury did not find Ramroop guilty of the lesser-included

offense of aggravated assault on a law enforcement officer, which also requires the

jury to find that the defendant knew that the victim was a law enforcement officer.

See Thompson, 695 So. 2d at 693.

       As to the remedy for this error, the State argues that the Fifth District

employed the correct remedy by remanding with instructions to impose a sentence

for attempted second-degree murder, which provides for a fifteen-year sentence,

rather than for attempted second-degree murder of a law enforcement officer,

which carries a mandatory life sentence. We disagree. As the Second District


                                         - 19 -
recently held in Ortiz v. State, 192 So. 3d 517 (Fla. 2d DCA 2016), a case where

the defendant argued “that the appropriate remedy . . . is a remand for entry of a

judgment finding [him] guilty of [the lesser included offense], and for resentencing

. . . for that offense” under section 924.34, Florida Statutes,3 “the correct remedy is

to remand for a new trial on the offense charged in the information, free of the

incorrect jury instruction.” Ortiz, 192 So. 3d at 521. Likewise, in Ramroop’s case,

we conclude that the correct remedy “is to remand for a new trial on the offense

charged in the information, free of the incorrect jury instruction.” Id.

       The State also relies on the United States Supreme Court’s decision in

Alleyne as support for arguing that the Fifth District’s remedy was appropriate.

However, because the life sentence accompanying section 782.065 is a mandatory

statutory minimum punishment, the Fifth District’s remedy was inconsistent with




      3. Section 924.34, Florida Statutes, provides the following:

             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.

§ 924.34, Fla. Stat. (2011); see Sigler v. State, 967 So. 2d 835, 841 (Fla.
2007) (holding that section 924.34 could be unconstitutional in application).


                                        - 20 -
Alleyne, which clearly stated, “It is no answer to say that the defendant could have

received the same sentence with or without that fact.” 133 S. Ct. at 2162-63.

      Thus, we conclude that Ramroop is entitled to a new trial.

                                   CONCLUSION

      We conclude that section 782.065 creates a separate substantive criminal

offense. Therefore, the erroneous jury instructions that did not include knowledge

as an essential element of attempted murder of a law enforcement officer as to

section 782.065 amounted to fundamental error.4 Accordingly, we quash the Fifth

District’s decision to the extent it is inconsistent with this opinion, vacate

Ramroop’s convictions of attempted second-degree murder and first-degree felony

murder, and remand for a new trial on these charges.5

      It is so ordered.

LABARGA, C.J., and LEWIS, QUINCE, and LAWSON, JJ., concur.
CANADY and POLSTON, JJ., concur in result.



       4. The Standard Jury Instructions should be amended to treat the crime of
Murder or Attempted Murder of a Law Enforcement Officer in a manner similar to
Assault or Battery on a Law Enforcement Officer. See Fla. Std. Jury Instr. 6.4
(Attempted Second Degree Murder); Fla. Std. Jury Instr. 8.10, 8.11, 8.12, 8.13; see
also In re Std. Jury Instrs. in Crim. Cases—Report No. 2013-03, 146 So. 3d 1110,
1110 (Fla. 2014); In re Std. Jury Instrs. in Crim. Cases—Report No. 2013-02, 137
So. 3d 995, 995 (Fla. 2014).

       5. Because this issue is dispositive, we leave undisturbed the other issues
discussed in the Fifth District’s opinion and decline to address the other issues
raised by Ramroop.


                                         - 21 -
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

Application for Review of the Decision of the District Court of Appeal – Direct
Conflict of Decisions

      Fifth District - Case No. 5D14-1359

      (Orange County)

William R. Ponall of Ponall Law, Maitland, Florida,

      for Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Wesley Heidt,
Bureau Chief, and Andrea K. Totten, Assistant Attorney General, Daytona Beach,
Florida,

      for Respondent




                                      - 22 -
