STATE OF FLORIDA, PETITIONER,
v.
NICHOLAS VANCE FURR, RESPONDENT
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Florida Supreme Court held that while second-degree depraved mind murder is a lesser included offense of first-degree felony murder, a defendant may be convicted of both first-degree felony murder and the underlying felony of armed robbery, reversing the district court's contrary holding.
A defendant may be convicted of both first-degree felony murder and the underlying felony of armed robbery, and second-degree depraved mind murder is a lesser included offense of first-degree felony murder.
[1] A defendant may be convicted of both first-degree felony murder and the underlying felony that constitutes the predicate act for the murder charge.
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Join FLexlaw to unlock all legal intelligenceFurr was charged with first-degree felony murder based on an armed robbery, and the district court held he could not be convicted of both the murder a…
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PER CURIAM.
This cause is before us on a petition to review Furr v. State, 464 So. 2d 693 (Fla. 2d DCA 1985), in which the district court held (1) that second-degree depraved mind murder is a lesser included offense of first-degree felony murder and (2) that the respondent, Furr, cannot be convicted for first-degree felony murder and the underlying felony of armed robbery. We find that, while the holding on the first issue is consistent with our decision in Linehan v. State, 476 So. 2d 1262 (Fla.1985), the district court’s holding on the second issue directly conflicts with our decision in State v. Enmund, 476 So. 2d 165 (Fla.1985). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const. Consistent with these recent decisions, we approve the decision of the district court with regard to the first Linehan issue and quash the decision with regard to the second Enmund issue. We remand this cause for further proceedings in accordance with Enmund.
It is so ordered.
MCDONALD, C.J., and BOYD, OVER-TON and EHRLICH, JJ., concur on the first issue.
SHAW, J., concurs in part and dissents in part with an opinion on the first issue.
ADKINS and BARKETT, JJ., dissent on the first issue.
McDonald, C.J., and BOYD, EHRLICH and SHAW, JJ., concur on the second issue.
OVERTON, J., concurs in part and dissents in part with an opinion on the second issue.
ADKINS and BARKETT, JJ., dissent on the second issue.
SHAW, Justice,
concurring in part and dissenting in part.
I concur that convictions for both first-degree felony murder and the predicate felony are permissible.
I dissent from the holding that second-degree depraved-mind murder is a lesser included offense of first-degree felony murder. Each offense contains a statutory element not present in the other and thus each is a separate offense. Neither the state nor the defendant is entitled to a jury instruction on an offense which is not contained in the charging instrument and is not a lesser included offense. See § 775.-021(4), Fla.Stat. (1983) and Linehan v. State, 476 So. 2d 1262, 1266 (Fla.1985) (Shaw, J., dissenting).
OVERTON, Justice,
concurring in part, dissenting in part on second issue.
I agree with the Court’s disposition of this cause on the first issue, but, for the reasons expressed in my dissent in En-mund v. State, 476 So. 2d 165 (Fla.1985), I dissent from the disposition of the second issue in this cause.
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Scurry v. State, 521 So. 2d 1077 (Fla. 1988)…ch, it was a category two lesser included offense, not a category one necessarily lesser included offense. The Court later implicitly adopted this rationale when it approved the opinion of the district court of appeal on this issue in State v. Furr, 493 So. 2d 432 (Fla.1986). By its holding in the instant case, the majority has now determined that an instruction on second-degree murder must be given as a necessarily lesser included offense of first-degree felony murder regardless of whether there is evidence…
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Scurry v. State, 506 So. 2d 4 (Fla. 2d DCA 1987)…lony murder, but it is not a necessarily lesser included offense. Although Linehan v. State, 476 So. 2d 1262, 1265 (Fla.1985), says that second degree murder is a necessarily lesser included offense of first degree murder, in light of State v. Furr, 493 So. 2d 432 (Fla.1986), a later case, we believe that the supreme court did not intend that a second degree murder instruction is required in every first degree felony murder charge without consideration of evidence to support it. The supreme court considered a…
Authorities Cited
- Linehan v. State, 476 So. 2d 1262 (Fla. 1985)
- State v. Carney, 476 So. 2d 165 (Fla. 1985)
- State v. Enmund, 476 So. 2d 165 (Fla. 1985)
- Furr v. State, 464 So. 2d 693 (Fla. 2d DCA 1985)