ROBERT LEE DIXON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Lee Dixon appeals his conviction and sentence for first-degree murder and attempted robbery. The District Court of Appeal affirmed his first-degree murder conviction but vacated his attempted robbery conviction, holding that a defendant cannot be convicted of an underlying felony when that felony is used to support a felony murder conviction.
A defendant cannot be convicted of an underlying felony that is used to establish a felony murder conviction. The court vacated Dixon's attempted robbery conviction because it served as the underlying felony for the first-degree murder conviction.
[1] A defendant cannot be convicted of both felony murder and the underlying felony that forms the basis for the felony murder conviction.
[2] A conviction for an underlying felony is vacated when that felony is used to support a felony murder conviction.
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Join FLexlaw to unlock all legal intelligence“a defendant could not be convicted or sentenced for robbery and for first-degree felony murder where the robbery was the underlying felony”
Establishes the principle that underlies the court's holding that attempted robbery cannot be charged when used to support felony murder
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Join FLexlaw to unlock all legal intelligenceDixon was indicted for first-degree murder and attempted robbery with a firearm. At trial, the judge instructed the jury on first-degree murder, felon…
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SCHEB, Judge.
Defendant, Robert Lee Dixon, appeals his conviction and sentence for first-degree murder and his conviction for attempted robbery. We have reviewed all four points that he raises and find only his contention that he cannot be convicted of attempted robbery has merit.
The grand jury charged defendant by indictment with first-degree murder and attempted robbery with a firearm. At the conclusion of the trial, the judge instructed the jury on first-degree murder and felony murder, as well as attempted robbery. The jury found defendant guilty of both first-degree murder and attempted robbery. Before sentencing, the state attorney pointed out to the court that defendant could be convicted of, but not sentenced for, the underlying felony of attempted robbery. Defense counsel agreed with this representation of the law. The trial judge sentenced defendant to life imprisonment with a twenty-five-year mandatory minimum term on the first-degree murder charge. He adjudicated defendant guilty of attempted robbery with a firearm but withheld sentence on that count “in light of the applicable Florida case law.”
Defendant now argues that the trial court erred in adjudicating him guilty of attempted robbery with a firearm. We agree. Since the trial judge did not sentence defendant for attempted robbery, he apparently recognized that the attempted robbery conviction was an underlying felony necessary for the first-degree murder conviction. The record does not show any independent evidence of premeditation; therefore, the trial judge was correct in treating the attempted robbery as the underlying felony.
This court recently held that a defendant could not be convicted or sentenced for robbery and for first-degree felony murder where the robbery was the underlying felony. Enmund v. State, 459 So. 2d 1160 (Fla. 2d DCA 1984). See also Bell v. State, 437 So. 2d 1057 (Fla.1983), and Harris v. State, 439 So. 2d 265 (Fla. 2d DCA 1983), petition for review denied, 450 So. 2d 486 (Fla.1984). In reaching this conclusion in Enmund, we cited our decision in Harris, which expressly relied on Bell. Similarly, the defendant here cannot be convicted or sentenced for the attempted robbery which was used as the underlying felony for the first-degree murder conviction.
In Enmund we recognized that the Florida Supreme Court had previously held that a defendant could be convicted but not sentenced for a robbery where the robbery was the underlying felony specified by the jury as justifying a first-degree murder conviction. Hawkins v. State, 436 So. 2d 44 (Fla.1983). See also Hegstrom v. State, 401 So. 2d 1343 (Fla.1981). Since we noted the apparent conflict between Hawkins and Bell, we certified to the supreme court the question of whether a defendant could be convicted of both felony murder and the underlying felony. Enmund.
Accordingly, we affirm the judgment and sentence for first-degree murder, but we vacate defendant’s conviction for attempted robbery. We also again certify the following question to the supreme court as one of great public importance:
WHEN A DEFENDANT IS CONVICTED OF FELONY MURDER, CAN HE BE CONVICTED OF, ALTHOUGH NOT SENTENCED FOR, THE UNDERLYING FELONY?
GRIMES, A.C.J., and SCHOONOVER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Furr v. State, 464 So. 2d 693 (Fla. 2d DCA 1985)…rmed robbery conviction. However, if, on retrial, appellant is again convicted on first degree (felony) murder, he shall be sentenced on that conviction and, as we have held in Enmund v. State, 459 So. 2d 1160 (Fla. 2d DCA 1984), and Dixon v. State, 463 So. 2d 342 (Fla. 2d DCA 1985), the conviction for armed robbery shall be vacated.1 REVERSED AND REMANDED FOR A NEW TRIAL WITH DIRECTIONS. GRIMES, A.C.J., and SCHOONOVER, J., concur. . We note that the supreme court has accepted jurisdiction to review the qu…1 / 2
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W.S.L. v. State, 470 So. 2d 828 (Fla. 2d DCA 1985)…ating defendant guilty on both the felony murder and the underlying felony of sexual battery. We reverse the convictions and sentences for the underlying felony of sexual battery. See Pina v. State, 468 So. 2d 475 (Fla. 2d DCA 1985); Dixon v. State, 463 So. 2d 342 (Fla. 2d DCA 1985); Enmund v. State, 459 So. 2d 1160 (Fla. 2d DCA 1984). As in those cases we certify to the Florida Supreme Court the following question: WHEN A DEFENDANT IS GUILTY OF FELONY MURDER, CAN HE BE CONVICTED OF, ALTHOUGH NOT SENTENCED F…
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Miller v. State, 467 So. 2d 1084 (Fla. 2d DCA 1985)…entenced for the crime used as the underlying felony for the first degree murder conviction. Copeland v. State, 457 So. 2d 1012 (Fla.1984); State v. Baker, 456 So. 2d 419 (Fla.1984); Bell v. State, 437 So. 2d 1057 (Fla.1983); [*1087] Dixon v. State, 463 So. 2d 342 (Fla. 2d DCA 1985); Enmund v. State, 459 So. 2d 1160 (Fla. 2d DCA 1984). Accordingly, we reverse the conviction and sentence for sexual battery, the underlying felony, and re-certify the following question we first posed in Enmund: WHEN A DEFENDANT…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bell v. State, 437 So. 2d 1057 (Fla. 1983)
- State v. Hegstrom, 401 So. 2d 1343 (Fla. 1981)
- State v. Rivers, 401 So. 2d 1343 (Fla. 1981)
- Hawkins v. State, 436 So. 2d 44 (Fla. 1983)
- State v. Harris, 439 So. 2d 265 (Fla. 2d DCA 1983)
- Enmund v. State, 459 So. 2d 1160 (Fla. 2d DCA 1984)