MARK RANDALL SMITH, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court affirmed Smith's convictions except for two attempted first-degree murder convictions, which it reversed, and certified a question to the Florida Supreme Court regarding whether an overt act in attempted murder must be intended to kill or injure.
Convictions for attempted first-degree murder are reversed where the overt act (fleeing) was intentionally committed but not intended to kill or injure another.
[1] An overt act in attempted first-degree murder must be intended to kill or injure another; an act that is intentionally committed but lacks such intent does not constitute…
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Join FLexlaw to unlock all legal intelligenceSmith was convicted of multiple crimes including two counts of attempted first-degree murder. The convictions and sentences were appealed to the Third…
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PER CURIAM.
The appellant seeks review of several convictions and sentences thereon. We find no merit in the errors urged. See and compare Cave v. State, 613 So. 2d 454 (Fla.1993); Fotopoulos v. State, 608 So. 2d 784 (Fla.1992); Mann v. State, 603 So. 2d 1141 (Fla.1992); Hodges v. State, 595 So. 2d 929 (Fla.1992); State v. McCloud, 577 So. 2d 939 (Fla.1991); Farinas v. State, 569 So. 2d 425 (Fla.1990); Perez v. State, 604 So. 2d 916 (Fla. 3d DCA 1992); Pierre v. State, 597 So. 2d 853 (Fla. 3d DCA 1992); Roberts v. State, 500 So. 2d 338 (Fla. 4th DCA 1986); Tarpley v. State, 477 So. 2d 63 (Fla. 3d DCA 1985); Dodson v. State, 356 So. 2d 878 (Fla. 3d DCA), cert. denied, 360 So. 2d 1248 (Fla.1978), except that which urges error in the adjudications and sentences for attempted first degree murder, which pursuant to Gray v. State, 19 Fla.L.Weekly D1039, 1994 WL 176541 (Fla. 3d DCA May 10, 1994), we find to be well taken. Therefore, we affirm all convictions and adjudications thereon, save and except the two convictions and adjudications for attempted felony murder, which we hereby reverse. As this court did in Gray, supra, we certify the following question to the Supreme Court of Florida:
WHETHER THE “OVERT ACT” REFERRED TO IN AMLOTTE v. STATE, 456 So.2D 448, 449 (FLA.1984), INCLUDES ONE, SUCH AS FLEEING, WHICH IS INTENTIONALLY COMMITTED BUT IS NOT INTENDED TO KILL OR INJURE ANOTHER?
We also set aside all the sentences and remand for sentencing consistent with this opinion.
Affirmed in part, reversed in part, with directions.
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Citator
Cited By
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Smith v. State, 669 So. 2d 1133 (Fla. 3d DCA 1996)…PER CURIAM. In Smith v. State, 640 So. 2d 1257 (Fla. 3d DCA 1994), this court ordered Mark Smith’s two convictions for attempted felony murder vacated. Thereafter, the trial judge vacated those convictions and immediately mistakenly signed a judgment reimposing the convictions and resentencing S…
Authorities Cited (13 total)
- Konstantinos X. Fotopoulos v. State, 608 So. 2d 784 (Fla. 1992)
- State v. McCLOUD, 577 So. 2d 939 (Fla. 1991)
- Farinas v. State, 569 So. 2d 425 (Fla. 1990)
- Hodges v. State, 595 So. 2d 929 (Fla. 1992)
- Mann v. State, 603 So. 2d 1141 (Fla. 1992)
- Dodson v. State, 356 So. 2d 878 (Fla. 3d DCA 1978)
- Foster v. State, 613 So. 2d 454 (Fla. 1993)
- Cave v. State, 613 So. 2d 454 (Fla. 1993)
- Gesner Pierre v. State, 597 So. 2d 853 (Fla. 3d DCA 1992)
- Perez v. State, 604 So. 2d 916 (Fla. 3d DCA 1992)