ROBERT EMILIO VALLADARES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the crime of attempted felony murder is logically impossible and does not exist in Florida. The conviction for this offense is reversed.
Valladares was convicted of attempted felony murder, grand theft, and escape after nearly running over a police officer during an escape attempt. The …
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COBB, Judge.
Valladares was tried and convicted of (1) attempted felony murder of a law enforcement officer; (2) grand theft of a motor vehicle; and (3) escape. The evidence at trial indicated that Valladares, while attempting to escape from custody, nearly ran over a police officer in the process, forcing the latter to dive onto the hood of the motor vehicle Valladares was driving. Subsequently, the car smashed into a tree and the officer was thrown off the hood. Valladares had swerved the car prior to the crash, attempting to dislodge the officer. On appeal Valladares contends that he was improperly charged with attempted felony murder of a law enforcement officer, and, furthermore, that the facts of the case did not include an “overt act” sufficient to support conviction for that offense. Valladares also argues that the trial court fundamentally erred in failing to give the entire, required sequence of instructions for all attempted homicides.
Subsequent to the filing of the briefs in the instant case, the Florida Supreme Court issued its opinion in State v. Gray, 654 So. 2d 552 (Fla.1995), wherein it receded from Amlotte v. State, 456 So. 2d 448 (Fla.1984) and concluded that Justice Overton’s dissent in that case was correct — ie., the crime of attempted felony murder is logically impossible. Hence, there is no such crime in Florida as attempted felony murder. The Gray decision was explicitly deemed to be applicable to all cases then pending on direct review or not yet final as of that time.
Valladares was convicted in the instant case of the non-existent crime of attempted felony murder. We reverse that conviction and remand for resentencing in regard to his convictions for grand theft and escape.
REVERSED and REMANDED.
HARRIS and GRIFFIN, JJ., concur.
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Lewellen v. State, 682 So. 2d 186 (Fla. 2d DCA 1996)…r, as the state concedes, the mandatory court cost that should be imposed for a misdemeanor is $50. Lewellen raises two other challenges to his petit theft conviction which have no merit but which warrant discussion. Relying on Valladares v. State, 658 So. 2d 626 (Fla. 5th DCA 1995), and O’Brian v. State, 649 So. 2d 336 (Fla. 1st DCA 1995), Lewellen argues that his conviction must be vacated because he was convicted of petit theft of a motor vehicle which he claims is a non-existent crime. The cases cited by…1 / 2
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Gutierrez v. State, 665 So. 2d 294 (Fla. 5th DCA 1995)…Fla.L.Weekly D2248 (Fla. 3d DCA) (trial court instructed to reverse and vacate conviction and sentence for attempted felony murder; court would not find that lesser included offenses could exist for nonexistent crime). See also, Valladares v. State, 658 So. 2d 626 (Fla. 5th DCA 1995) (defendant’s conviction for nonexistent crime of attempted felony murder reversed and remanded for resentencing on other offenses); Selway v. State, 660 So. 2d 1176 (Fla. 5th DCA 1995) (defendant’s conviction for attempted third…
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Kaplan v. State, 681 So. 2d 1166 (Fla. 5th DCA 1996)…simply reversed conviction for attempted third degree murder as a nonexistent crime); Selway v. State, 660 So. 2d 1176 (Fla. 5th DCA 1995) (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. Cons…
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
- State v. Collin Gray, 654 So. 2d 552 (Fla. 1995)
- Amlotte v. State, 456 So. 2d 448 (Fla. 1984)