GRACIELA HIEKE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A conviction for solicitation to commit third-degree murder is invalid because third-degree murder requires an unintentional killing, making solicitation of such an act an oxymoron.
[1] A conviction for solicitation to commit third degree murder is legally impossible as third degree murder requires an unintentional killing, which cannot be solicited.
[2] A defendant cannot be convicted of a nonexistent crime, even if the defense invited the error by requesting the jury instruction.
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Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of solicitation to commit third-degree murder after admitting to hiring someone to beat her husband but denying intent to …
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LETTS, Judge.
The defendant was found guilty of solicitation to commit third degree murder. We reverse; there is no such crime.
Under the facts of this case, the defendant admits that she hired a hit-man to beat up her husband, but defends the charge that she was guilty of solicitation to commit first degree murder insisting that she intended for him to be beaten up but not killed. Third degree murder is defined as the unlawful killing of a human being without any design to effect death while committing or attempting to commit a felony. § 782.04(4), Fla.Stat. (1991). In other words, under third degree, the death is accidental and while one can solicit the commission of a felony or solicit to kill anyone, there cannot be a solicitation to kill someone without any design to effect death because one cannot solicit an unintentional death. That is an oxymoron. Miller v. State, 430 So. 2d 611 (Fla. 4th DCA 1983).
The state argues that the defense not only failed to object to such an instruction, but actually asked for it, thus precluding appellate review. However, we must reject that argument because our supreme court has unequivocally stated that “no one may be convicted of a nonexistent crime” even though the error is invited. Achin v. State, 436 So. 2d 30 (Fla.1982). It is interesting that the public defender did not cite the two cases on which we rely and which we believe to be controlling. However, that omission would appear to demonstrate that the public defender’s request for such an instruction at the trial level was not a deliberate “gotcha maneuver.” Nevertheless, even if it were, Achin teaches us that the result would be the same.
The jury specifically acquitted the defendant of solicitation to commit first degree murder, but since Achin mandated a new trial because the conviction was for a nonexistent crime, we now remand this cause for a new trial on the lesser included offenses of aggravated battery or battery as same were set forth on the verdict form.
REVERSED AND REMANDED.
DOWNEY and ANSTEAD, JJ., concur.
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State v. Kawana M. Ashley, 701 So. 2d 338 (Fla. 1997)…uman being, when perpetrated without any design to effect death."). . See § 390.001(10)(a), Fla. Stat. (1993) (providing punishment for "[a]ny person who willfully performs, or participates in, a termination of a pregnancy"). . Cf. Hieke v. State, 605 So. 2d 983, 983 (Fla. 4th DCA 1992) ("In other words, under third degree, the death is accidental and while one can solicit the commission of a felony or solicit to kill anyone, there cannot be a solicitation to kill someone without any design to effect death…
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Jones v. State, 908 So. 2d 615 (Fla. 4th DCA 2005)…lear on this issue.” A defendant cannot be convicted of a nonexistent lesser included of [*620] fense, even if defense counsel would have specifically requested that the court give a jury instruction for the nonexistent offense. Id.; Hieke v. State, 605 So. 2d 983 (Fla. 4th DCA 1992) (holding that there is no such crime as solicitation to commit third degree murder). We are aware of Miller v. State, 430 So. 2d 611 (Fla. 4th DCA 1983), upon which Hieke relied, in which we held “[w]e cannot envision a situatio…
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Nelson v. State, 855 So. 2d 132 (Fla. 4th DCA 2003)…school of litigation to succeed.”); M-5 Communications, Inc. v. ITA Telecomms., Inc., 708 So. 2d 1039, 1039 (Fla. 3d DCA 1998) (“reversal is also mandated by an application of the anti-gotcha rule in its original and purest form."); Hieke v. State, 605 So. 2d 983, 984 (Fla. 4th DCA 1992) ("However, that omission would appear to demonstrate that the public defender’s request for such an instruction at the trial level was not a deliberate 'gotcha maneuver.' "); Chatmon v. Woodard, 492 So. 2d 1115, 1116 n. 2 (F…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Achin v. State, 436 So. 2d 30 (Fla. 1982)
- Miller v. State, 430 So. 2d 611 (Fla. 4th DCA 1983)