TREVOR MILLER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that fleeing, even if not intended to kill, can constitute an 'overt act' for attempted felony murder. The court affirmed the armed robbery conviction but reversed the attempted first-degree felony murder conviction.
The defendant was convicted of attempted first-degree felony murder and armed robbery. The state amended the information, which the defendant waived o…
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PER CURIAM.
Pursuant to the reasoning in Gray v. State, 19 Fla.L.Weekly D1039, — So. 2d - [1994 WL 176541] (Fla. 3d DCA May 10, 1994) (review granted no. 83766) we reverse appellant’s conviction for attempted first degree felony murder, affirm the conviction of armed robbery,1 and certify to the Supreme Court that this decision involves the following question of great public importance:
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?
Affirmed in part, reversed in part, and remanded for resentencing on the armed robbery conviction in light of the reversal on the attempted first degree murder conviction.
Affirmed in part, reversed in part, question certified.
. A defendant may waive the right to object to the amendment of an information, Johnson v. State, 190 So. 2d 811 (Fla. 4th DCA 1966), cert, denied, 196 So.2cL925 (Fla.1967). The defendant, in open court, waived objection to the state’s amendment to the information, and declined the opportunity to continue the trial, therefore we find no error in this regard.
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Citator
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State v. Miller, 660 So. 2d 272 (Fla. 1995)…be of great public importance: 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. Miller v. State, 651 So. 2d 1313 (Fla. 3d DCA 1995). We have jurisdiction based on article V, section 3(b)(4) of the Florida Constitution. We recently addressed the identical certified question in State v. Gray, 654 So. 2d 552 (Fla.1995). (Collin Gray and Miller were codefendants…
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Kaplan v. State, 681 So. 2d 1166 (Fla. 5th DCA 1996)…1 (Fla. 1996) and State v. Miller, 660 So. 2d 272 (Fla.1995), as precluding a new trial on the charge of attempted premeditated murder. In Miller, the Florida Supreme Court merely approved the result reached by the Third District in Miller v. State, 651 So. 2d 1313 (Fla. 3d DCA 1995), wherein the appellant’s conviction for the nonexistent crime of attempted felony murder was reversed, and his conviction for armed robbery was affirmed. There is no indication that the defendant in either Wilson or Miller was eve…
Authorities Cited
- Amlotte v. State, 456 So. 2d 448 (Fla. 1984)
- Augustus Johnson, Jr. v. State, 190 So. 2d 811 (Fla. 4th DCA 1966)