RODERICK KIMBERLY CRYSTAL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the conviction for attempted third-degree murder must be reversed based on a recent Florida Supreme Court decision that there is no such crime.
Appellant was convicted of burglary, attempted third-degree murder, and aggravated battery. The attempted third-degree murder conviction rested on the…
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PER CURIAM.
Roderick Kimberly Crystal (Crystal) appeals his convictions and concurrent sentences for burglary of an occupied dwelling with assault while armed, attempted third-degree murder with a weapon, and aggravated battery. These crimes occurred on March 8, 1991. Crystal v. State, 616 So. 2d 150, 151 (Fla. 1st DCA 1993). The instant case is here on direct review, after retrial based on this court’s earlier remand. See id.
Crystal was sentenced in September 1993 to concurrent prison terms as follows: Count one (burglary of an occupied dwelling with assault while armed) — twenty-two years; count two (attempted third-degree murder with a weapon) — fifteen years; and count three (aggravated battery) — five years. The Florida Supreme Court however recently held: “[W]e recede from the holding in Am-lotte[ 1] that there is a crime of attempted felony murder in Florida. This decision must be applied to all cases pending on direct review or not yet final.” State v. Gray, 654 So. 2d 552, 554 (Fla.1995). Crystal’s conviction for attempted third-degree murder rests on his conviction for the felony of aggravated battery. See Crystal, 616 So. 2d at 151. We thus must reverse Crystal’s conviction for attempted felony murder. Gray.
We accordingly reverse and vacate Crystal’s conviction for attempted third-degree murder; and remand for resentencing on the remaining counts, as recomputation of the sentencing guidelines scoresheet may affect the range of sentences permitted for the remaining counts. However, since the initial sentences were based upon an inaccurate scoresheet, we note that the trial judge may consider the imposition of any sentence which otherwise would have been permissible at the initial sentencing hearing. See Roberts v. State, 547 So. 2d 129 (Fla.1989).
JOANOS, LAWRENCE and BENTON, JJ. concur. . Amlotte v. State, 456 So. 2d 448 (Fla.1984).
Cases With Similar Vibessemantic neighbors from the corpus
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Kaplan v. State, 681 So. 2d 1166 (Fla. 5th DCA 1996)…(court simply reversed defendant’s conviction for attempted third degree felony murder ); Valladares v. State, 658 So. 2d 626 (Fla. 5th DCA 1995) (court simply reversed conviction for non-existent crime of attempted felony murder); Crystal v. State, 657 So. 2d 77 (Fla. 1st DCA 1995) (court simply reversed attempted third degree murder conviction). . Art. I, § 9, Fla. Const.; Fifth Amend., U.S. Const.…
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Riggins v. State, 671 So. 2d 244 (Fla. 1st DCA 1996)…granted, No. 86,680, 668 So. 2d 604 (Fla. Jan. 31, 1996). Appellant’s remaining convictions are affirmed, but the case is remanded for recom-putation of appellant’s scoresheet and resen-tencing on the remaining convictions. Gray; Crystal v. State, 657 So. 2d 77 (Fla. 1st DCA 1995). AFFIRMED in part, REVERSED in part and REMANDED for further proceedings. ERVIN, MINER and VAN NORTWICK, JJ., concur. . Appellant was originally charged with attempted second degree murder of a law enforcement officer.…
Authorities Cited
- State v. Collin Gray, 654 So. 2d 552 (Fla. 1995)
- Amlotte v. State, 456 So. 2d 448 (Fla. 1984)
- Doyal Powell Roberts v. State, 547 So. 2d 129 (Fla. 1989)
- Crystal v. State, 616 So. 2d 150 (Fla. 1st DCA 1993)