EDUARDS WILSON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The Third District Court of Appeal reversed Wilson's conviction for attempted felony murder because the Florida Supreme Court had recently held in State v. Gray that attempted felony murder is no longer a criminal offense in Florida. The court also reversed Wilson's sentence for attempted robbery as exceeding the statutory maximum for a second-degree felony.
The attempted felony murder conviction must be reversed and vacated because attempted felony murder is no longer a criminal offense in Florida. Lesser included offenses cannot exist for a nonexistent crime. Additionally, the twenty-seven-year sentence for attempted robbery exceeds the statutory maximum of fifteen years and must be reversed for resentencing.
[1] Attempted felony murder is no longer a criminal offense in Florida.
[2] A conviction for attempted felony murder is applicable to all cases pending on direct review or not yet final.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“attempted felony murder is no longer a criminal offense in the State of Florida”
Establishes the primary basis for reversing Wilson's attempted felony murder conviction based on State v. Gray.
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Join FLexlaw to unlock all legal intelligenceWilson was convicted of attempted felony murder and attempted robbery. He was sentenced to twenty-seven years in state prison for the attempted robber…
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PER CURIAM.
As to appellant’s first contention on appeal, we reverse and vacate his conviction and sentence for attempted felony murder based upon the Supreme Court’s most recent pronouncement in State v. Gray, 654 So. 2d 552 (Fla.1995) that attempted felony murder is no longer a criminal offense in the State of Florida. This decision is applicable to all cases pending on direct review or not yet final. Smith v. State, 598 So. 2d 1063, 1066 (Fla.1992); Fink v. Holt, 609 So. 2d 1333 (Fla. 4th DCA 1992). The State nevertheless argues that Gray does not affect potential lesser included offenses of attempted felony murder and that pursuant to section 924.34, Florida Statutes (1993),1 this court should reduce appellant’s conviction to an appropriate lesser included offense for which there was sufficient evidence. We disagree and find that the State’s reliance upon section 942.34 is misplaced. In accordance with Gray, appellant’s conviction for attempted felony murder is not being vacated due to insufficiency of evidence so as to invoke section 924.34. Moreover, the notion that lesser included offenses can somehow exist for a nonexistent crime simply defies logic. Thus, the trial court is instructed to reverse and vacate appellant’s conviction and sentence for attempted felony murder. See Gray; State v. Grinage, 656 So. 2d 457 (Fla.1995), receded from Amlotte v. State, 456 So. 2d 448 (Fla.1984).
As to appellant’s remaining argument on appeal, we agree that the trial court erred when it sentenced him to twenty-seven years in state prison where he was convicted of attempted robbery, a second degree felony. The maximum penalty for a second degree felony is fifteen years in state prison. See section 775.082(3)(c) Florida Statutes (Supp.1994). We, therefore, reverse and remand for a new sentencing hearing on this count.
Reversed and remanded with instructions.
. That statute provides that:
... when the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish his guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense.
ON MOTION FOR REHEARING AND CERTIFICATION
The State moves for rehearing or certification, arguing that on remand there should either be a new trial on lesser included offenses or that the defendant’s conviction for attempted first degree felony murder should be reduced to a lesser included offense. We cannot agree. We interpret the Florida Supreme Court’s decision in State v. Gray, 654 So. 2d 552 (Fla.1995), to require an outright reversal, rather than a reduction to a lesser included offense or a new trial on lesser included offenses. Moreover, we see no principled basis for such a reduction because, as a matter of law, there can be no lesser included offenses under a non-existent offense such as attempted first degree felony murder. We recognize, however, that this issue will arise in most, if not all, cases governed by State v. Gray. Accordingly, we certify that we have passed on the following question of great public importance:
WHEN A CONVICTION FOR ATTEMPTED FIRST DEGREE FELONY MURDER MUST BE VACATED ON AUTHORITY OF STATE V. GRAY, 654 So. 2d 552 (Fla.1995). DO LESSER INCLUDED OFFENSES REMAIN VIABLE FOR A NEW TRIAL OR REDUCTION OF THE OFFENSE?
The motion for rehearing is denied.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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State v. Eduards Wilson, 680 So. 2d 411 (Fla. 1996)…ortance: WHEN A CONVICTION FOR ATTEMPTED FIRST DEGREE FELONY MURDER MUST BE VACATED ON AUTHORITY OF STATE V. GRAY, 654 So. 2d 552 (Fla.l995)[,] DO LESSER INCLUDED OFFENSES REMAIN VIABLE FOR A NEW TRIAL OR REDUCTION OF THE OFFENSE? Wilson v. State, 660 So. 2d 1067, 1069 (Fla. 3d DCA 1995). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. Wilson was convicted of attempted felony murder and armed robbery after attempting to rob a man waiting for a bus and then shooting at him when the victim started to wal…
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Thompson v. State, 667 So. 2d 470 (Fla. 3d DCA 1996)…charge of attempted premeditated murder, this case differs from the recent cases of Lee v. State, 664 So. 2d 330 (Fla. 3d DCA 1995) (question certified); Alfonso v. State, 661 So. 2d 308 (Fla. 3d DCA 1995) (question certified), and Wilson v. State, 660 So. 2d 1067 (Fla. 3d DCA 1995) (question certified). In those cases this court refused to reduce a conviction for attempted felony murder to a lesser included offense or remand for a new trial on a lesser included offense because it found that there could be no…
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Pratt v. State, 668 So. 2d 1007 (Fla. 1st DCA 1996)…essarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense. Like our sister court in Wilson v. State, 660 So. 2d 1067 (Fla. 3d DCA 1995), we conclude that the appellant’s conviction “is not being vacated due to insufficiency of evidence” as specified literally in section 924.34. Id., 660 So. 2d at 1068. Thus, we agree with the Third District Court that, under these…
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. 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. Grinage, 656 So. 2d 457 (Fla. 1995)
- Fink v. Holt, 609 So. 2d 1333 (Fla. 4th DCA 1992)