GUY RANDALL JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 1986-04-09
No. 85-850
LETTS and DELL, JJ., concur.
486 So. 2d 657 Florida District Court of Appeal, Fourth District (1986) Positive Treatment
Cited by 22 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Guy Randall Johnson appeals his conviction for first-degree murder and attempted first-degree murder of Sharon Ann Jones. The court affirmed the convictions, holding that Johnson could be liable for attempted murder as an accomplice based on pointing a gun at Jones during a violent felony, and that premeditation could be inferred from the circumstances. The court struck the cost assessment that was not orally imposed by the trial court.


Holding

The court affirmed the conviction for attempted murder, holding that Johnson's act of pointing a gun at Jones constituted an overt act toward attempted murder, that he could be liable as an accomplice to the underlying felony, and that premeditation could be inferred from the circumstances and manner of the attack. The court struck the cost assessment because it was not orally imposed by the trial court.


Headnotes

[1] A defendant's argument for a judgment of acquittal is not preserved for appeal if the specific grounds for the argument were not presented to the trial court.

[2] The commission of a felony, for purposes of attempted felony murder, includes the entire criminal episode, not just the precise moment the underlying felony occurs.

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Key Quotes

“the word during does not refer narrowly to the time, in this case, when Volf was being murdered, or when something was removed from the premises, if the underlying offense was a robbery.”

Establishes that 'during the perpetration of a felony' encompasses the entire criminal episode, not just the moment of the core offense

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Facts & Procedural History

Johnson and Carlos Roberts Arevalo were indicted for the first-degree murder of Lennie Volf and attempted first-degree murder of Sharon Ann Jones. Dur…

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Opinion of the Court
GLICKSTEIN, Judge.

GLICKSTEIN, Judge.

This is a belated appeal, pursuant to this court’s grant of a petition for writ of habe-as corpus, of judgment and sentence in a criminal case tried to a jury. We affirm the judgment and sentence, except as to the assessment of costs on the judgment form, which we strike. Together with Carlos Roberts Arevalo, appellant/defendant Guy Randall Johnson was indicted on one count of first degree murder of Lennie Volf and one count of attempted first degree murder, of Volfs girlfriend Sharon Ann Jones. Appellant’s motions for judgment of acquittal at the close of the state’s case and at the close of all the evidence were denied. The jury found Johnson guilty as charged on each count and he was so adjudicated. The trial court sentenced him to the mandatory minimum sentence of twenty-five years for the attempted murder, to be served concurrently-

Two issues, restated, in our view bear discussion:

I. Whether the trial court erred when it denied appellant’s judgment of acquittal on the attempted murder charge, because the evidence failed to show the appellant aided or abetted a specific overt act during the commission of the felony that could have caused death. We conclude it did not.

II. Whether the printed statement on the judgment form, imposing costs, should be stricken. We conclude that it should.

I.

Appellant contends that his timely motions, at the close of the state’s case and at the close of all the evidence, for entry of judgment of acquittal, should have been granted on the ground that the evidence against him was legally insufficient to convict him on the second count, attempted first degree murder. Appellant points out that the Florida Supreme Court has defined attempted felony murder as an individual’s committing, aiding or abetting a specific overt act which could but does not cause another’s death, while the individual is perpetrating or attempting to perpetrate one of the enumerated felonies. Amlotte v. State, 456 So. 2d 448, 449-50 (Fla.1984). Appellant argues that the only possible theory on which he could be charged with attempted first degree murder of Sharon Jones was attempted felony murder; yet Ms. Jones did not give testimony as to any overt act, that appellant committed, aided or abetted, towards her murder, and appellant’s case tended to show that he was no longer present when Arevalo attacked Ms. Jones. Appellant further contends there was no evidence of premeditation of Johnson as regards Ms. Jones; any premeditation by Arevalo could not be imputed to Johnson, and there was no evidence of any preexisting plan to commit any felony of any kind against Ms. Jones.

The state contends that appellant’s present line of argument was never presented to the trial court and is therefore not preserved for appeal. E.g., Sapp v. State, 411 So. 2d 363 (Fla. 4th DCA 1982) (One may not tender a position to the trial court on one ground and successfully offer a different basis for that position on appeal). In the instant case we do not see in the record of the trial proceedings any of the contentions made respecting his motion for judgment of acquittal on the attempted murder charge. Accordingly, he failed to preserve this issue for appeal.

Even if the issue were to be considered, appellant reads the law stated in Amlotte much too narrowly. Amlotte concerns, of course, attempted felony murder only, and not attempted premeditated murder. When the Florida Supreme Court in Am-lotte speaks of the person’s committing an overt act or aiding or abetting such an act during the commission of an enumerated felony, the word during does not refer narrowly to the time, in this case, when Volf was being murdered, or when something was removed from the premises, if the underlying offense was a robbery.

In State v. Wright, 379 So. 2d 96 (Fla.1979), the police intercepted three men attempting to leave after robbery of a store, and one of the robbers was killed by a police bullet. It was held Wright could be convicted of murder in death of his co-perpetrator, under section 782.04(3), Florida Statutes. Although the point was not addressed as an issue, the language of the statute that refers to persons killed during the perpetration of a felony was mentioned in the Wright opinion. Obvious ly “during the perpetration of a felony” refers to the entire criminal episode, even including the period of attempted flight from the scene of the crime, and not narrowly when the underlying murder or robbery or other enumerated felony was actually occurring.

Here there was evidence appellant pointed a gun at Ms. Jones while his co-perpetrator was manhandling Volf. This alone could qualify as an overt act toward the attempted murder of Ms. Jones. Appellant was present during the entire episode, by some testimony, and one could reason that was the case even by his own statements. Even if he was waiting for Arevalo in the car at the time Arevalo was attacking Ms. Jones as he claims, it can be reasoned he was legally still present at that time for purposes of the Amlotte principle. There was testimony both by Arevalo and by witness Don Greene that indicates an intention of the perpetrators to commit robbery — to retrieve what Volf was holding as collateral for the cocaine he had given the perpetrators on credit. Appellant was an accomplice to that underlying offense and therefore could be guilty of attempted felony murder. Appellant could also be guilty of attempted premeditated murder, being an accomplice, on the scene, of Arevalo, evidence of whose premeditation was certainly sufficient to justify letting a jury decide whether the intent was present. Premeditation may be deduced from such circumstances as the manner of the attempted murder and the nature and kind of wounds inflicted. Welty v. State, 402 So. 2d 1159 (Fla.1981). Premeditation need not refer to a design to take the person’s life that originated a substantial period of time before the event; premeditation may occur a matter of moments before the murderous act, even after a battery has begun. See, e.g., Buford v. State, 403 So. 2d 943 (Fla.1981).

II.

There was no mention of imposition of costs upon appellant, when judgment and sentence were orally imposed. The judgment form has imprinted on it an order to pay $15 to the Crimes Compensation Trust Fund and $2 as a court cost; but the trial court never said anything about either. Because the trial court did not express an intention to assess costs against the defendant, we follow Davis v. State, 477 So. 2d 47 (Fla. 4th DCA 1985) (Per curiam) (“[I]f the sentence includes assessment of costs against appellant, that aspect of the sentence is stricken”); and Williams v. State, 478 So. 2d 122 (Fla. 4th DCA 1985) (Per curiam) (“The form of the judgment contained an assessment of costs, which we strike.”).

LETTS and DELL, JJ., concur.


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Citator

Cited By (11 total)

  • Burns v. State, 584 So. 2d 1073 (Fla. 4th DCA 1991)
    …(1989), expressly includes the words “any act” in defining the crime of attempt. Wielding and pointing a handgun at someone is an act teeming with consequences and is reasonably understood as an act toward the commission of murder. Johnson v. State, 486 So. 2d 657 (Fla. 4th DCA 1986). Indeed we can think of few single acts more calculated to advance an enterprise in murder or violence. We should also have been prepared to affirm the conviction for resisting arrest with violence while carrying a firearm. As i…
  • Oropesa v. State, 555 So. 2d 389 (Fla. 3d DCA 1989)
    …ce was insufficient to warrant his conviction of attempted first-degree murder on a charge of attempted felony murder. In that regard, we entirely agree with Amlotte v. State, 456 So. 2d 448, 450 (Fla.1984) and its clarification in Johnson v. State, 486 So. 2d 657 (Fla. 4th DCA 1986). The evidence demonstrated Orope-sa's participation as an aider and abettor, forcing himself into the victim’s home and participating in the ensuing fight. Whenever an individual perpetrates or attempts to perpetrate an enumerate…
  • Frazier v. State, 549 So. 2d 807 (Fla. 1st DCA 1989)
    …PER CURIAM. AFFIRMED. Johnson v. State, 486 So. 2d 657 (Fla. 4th DCA 1986). SHIVERS, C.J., and WENTWORTH and WIGGINTON, JJ., concur.…

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