
    Richard ESPINOSA, Appellant, v. STATE of Florida, Appellee.
    No. 95-842.
    District Court of Appeal of Florida, Fifth District.
    May 30, 1997.
    Order Certifying Question of Rehearing July 25, 1997.
    James B. Gibson, Public Defender, and Dan D. Hallenberg, Assistant Public Defender, Daytona Beach, for Appellant.
    Robert A. Butterworth, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   HARRIS, Judge.

We remanded this case to the trial court, as directed by the supreme court, for determination of whether the evidence presented at trial was sufficient to convict Espinosa of the greater offense of resisting with violence even though the jury convicted him of resisting without violence. Espinosa v. State, 690 So.2d 656 (Fla. 5th DCA 1997). The trial court has now complied with our remand and determined that the state made out a prima facia ease, even though not believed by the jury; hence, there was sufficient evidence to convict Espinosa of the greater offense. Under our directions from the supreme court, Espinosa lacks standing to challenge the fact that one of the elements of the lesser offense was not proved. We therefore affirm the court below.

Since the trial court has now made a finding not previously subject to appeal by the defendant, it appears that Espinosa should, if he disagrees with the finding below or the standard used by the trial court, be permitted to move for rehearing or certification of this issue to the supreme court.

AFFIRMED,

DAUKSCH and ANTOON, JJ., concur.

ON MOTION FOR REHEARING

HARRIS, Judge.

While we agree with much of Appellant’s argument in relation to the appropriate standard to be applied in order to comply with the instructions of the supreme court in State v. Espinosa, 686 So.2d 1345 (Fla.1996), we believe the better solution to this thorny issue is to approve the motion to certify the issue to the supreme court. The State, in its response, recognizes the difficulty of applying the supreme court’s instructions in Espi-nosa and joins in the motion to certify.

In suggesting possible standards to apply, we were not indicating approval of any of them. We were merely pointing out the complexity of the trial court’s task should it find sufficient evidence to convict of the greater offense when the jury, by its acquittal, indicated otherwise.

Because appellate courts all over the state will continue to face issues related to resisting with and without violence convictions— charged and otherwise — this appears to be an appropriate matter for the supreme court. We, therefore, certify the following question as one of statewide concern:

WHAT STANDARD SHOULD THE TRIAL COURT USE IN DETERMINING WHETHER THERE WAS SUFFICIENT EVIDENCE TO CONVICT FOR THE GREATER OFFENSE WHEN THE JURY HAS, BY ACQUITTAL, INDICATED OTHERWISE?

ISSUE CERTIFIED TO THE SUPREME COURT.

DAUKSCH and ANTOON, JJ., concur.  