HENRY HARRIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Henry Harris appeals his conviction for attempted first-degree murder and other crimes. The Florida District Court of Appeal reversed his attempted first-degree murder conviction because the Florida Supreme Court in State v. Gray abolished the crime of attempted felony murder, which was one of two alternative bases given to the jury for conviction.
The attempted first-degree murder conviction must be reversed because the jury was instructed it could convict on the basis of attempted felony murder, a nonexistent crime under current law, and the error cannot be deemed harmless. The case must be remanded for resentencing on the remaining convictions, and the victim injury points for Vincent Brewer's death must be eliminated from the scoresheet.
[1] The offense of attempted felony murder is no longer recognized in Florida.
[2] A conviction based on a jury instruction for a nonexistent crime cannot be deemed harmless error.
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Join FLexlaw to unlock all legal intelligence“the offense of attempted felony murder will no longer be recognized in Florida because the "legal fictions required to support the intent for felony murder are simply too great."”
The court's rationale for reversing the attempted first-degree murder conviction based on State v. Gray's abolition of attempted felony murder.
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Join FLexlaw to unlock all legal intelligenceHarris was convicted of attempted first-degree murder, robbery with a firearm, two counts of kidnapping with a firearm, grand theft, second-degree ars…
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PARIENTE, Judge.
Defendant Henry Harris appeals from judgments of conviction and sentences for attempted first-degree murder, robbery with a firearm, two counts of kidnapping with a firearm, grand theft, second-degree arson and trespass of an occupied structure. We are compelled to reverse defendant’s judgment of conviction and sentence for attempted first-degree murder based on the supreme court’s decision in State v. Gray, 654 So. 2d 552 (Fla.1995).
In reliance on the law in effect at the time, the trial court instructed the jury on two alternative bases upon which it could find defendant guilty of attempted first-degree murder — attempted premeditated murder and attempted felony murder. Since trial, however, our supreme court in Gray has receded from Amlotte v. State, 456 So. 2d 448 (1984), by deciding that the offense of attempted felony murder will no longer be recognized in Florida because the “legal fictions required to support the intent for felony murder are simply too great.” 654 So. 2d at 554; see also State v. Grinage, 656 So. 2d 457 (Fla.1995). In Gray, our supreme court mandated that its holding must be applied to all cases pending on direct review or not yet final and therefore Gray is applicable to this case. 654 So. 2d at 554; see Grinage, 656 So. 2d at 457; see also Smith v. State, 598 So. 2d 1063, 1066 (Fla.1992).
We reject the state’s contention that the trial court’s instruction on attempted felony murder, which the state requested in this case, was harmless, especially in light of the fact that the jury was told it could convict defendant on the basis of a nonexistent crime. See State v. Sykes, 434 So. 2d 325 (Fla.1983). We are unable to conclude beyond a reasonable doubt that the instruction did not contribute to the jury convicting defendant of attempted first-degree murder. Compare Knight v. State, 394 So. 2d 997 (Fla. 1981); see State v. DiGuilio, 491 So. 2d 1129 (Fla.1986).
While our decision does not require a reversal of defendant’s other convictions, we must remand for resentencing on these convictions in light of our reversal of the attempted first-degree murder because the attempted murder conviction was scored as the primary offense. Additionally, in violation of rule 3.702(d)(5) of the Florida Rules of Criminal Procedure, defendant erroneously received victim injury points for the death of Vincent Brewer. Defendant should not have received these additional points on his score-sheet because he was acquitted of the death of victim Brewer by the jury. On remand, when recalculating defendant’s scoresheet, these points should be eliminated.
REVERSED AND REMANDED.
STONE and SHAHOOD, JJ., concur.
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Thompson v. State, 667 So. 2d 470 (Fla. 3d DCA 1996)…conviction of attempted first degree murder pursuant to the authority of Humphries v. State, 20 Fla.L.Weekly D2634, — So. 2d - [1995 WL 358107] (Fla. 5th DCA December 1, 1995); Tape v. State, 661 So. 2d 1287 (Fla. 4th DCA 1995) and Harris v. State, 658 So. 2d 1226 (Fla. 4th DCA 1995) and return the matter to the trial court for a new trial on the charge of attempted premeditated murder. We note that in reversing and remanding for a new trial on the charge of attempted premeditated murder, this case differs f…
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Harris v. State, 768 So. 2d 1179 (Fla. 4th DCA 2000)…theft; and (7) the lesser included offense of trespass of an occupied structure. We reversed Harris’ conviction for attempted first degree murder based on State v. Gray, 654 So. 2d 552 (Fla.1995), and remanded for re-sentencing. See Harris v. State, 658 So. 2d 1226 (Fla. 4th DCA 1995). After re-sentencing, Harris filed a second appeal challenging the score sheet used at re-sentencing. We affirmed per curiam in Harris v. State, 681 So. 2d 291 (Fla. 4th DCA 1996). Subsequently Harris filed a motion to vacate an…
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KEY v. State, 779 So. 2d 525 (Fla. 2d DCA 2000)…onvicted Key of the lesser included offense of battery and not of the charged offense of first-degree murder, he should not have been assessed points for the victim’s death. See Rodriguez v. State, 666 So. 2d 234 (Fla. 2d DCA 1995); Harris v. State, 658 So. 2d 1226 (Fla. 4th DCA 1995). Upon remand, the trial court should re-sentence Key without assessing 120 points for the victim’s death, but may impose other appropriate victim injury points. Affirmed in part, reversed in part, and remanded for resentencin…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Knight v. State, 394 So. 2d 997 (Fla. 1981)
- State v. Collin Gray, 654 So. 2d 552 (Fla. 1995)
- Rhoda Smith v. State, 598 So. 2d 1063 (Fla. 1992)
- Amlotte v. State, 456 So. 2d 448 (Fla. 1984)
- State v. Sykes, 434 So. 2d 325 (Fla. 1983)
- State v. Grinage, 656 So. 2d 457 (Fla. 1995)