GEORGE L. GUTIERREZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
George Gutierrez appeals his conviction for attempted third-degree murder following a shooting incident. The appellate court reversed the attempted murder conviction based on State v. Gray but affirmed his convictions for aggravated battery and shooting into a building.
The court reversed the attempted third-degree murder conviction as nonexistent under State v. Gray and rejected arguments for a lesser included offense to a nonexistent crime. The court affirmed the aggravated battery conviction, finding sufficient evidence that Gutierrez intentionally caused injury through unwanted touching during the struggle.
[1] A conviction for a nonexistent crime cannot support a conviction for a lesser included offense.
[2] A motion for judgment of acquittal should be denied when the evidence presented by the state, viewed in the light most favorable to the state, is sufficient to establish…
Previewing 2 of 4 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“We agree that Gray requires a reversal of the conviction of attempted third degree murder. Concerning the state's argument that appellant's conviction should be reduced to a lesser included offense, we agree with Alfonso v. State, 661 So.2d 308 (Fla. 3d DCA 1995), that there can be no lesser included offense to a nonexistent crime.”
Establishes the court's holding that attempted third-degree murder is nonexistent under Florida law and cannot be reduced to a lesser included offense.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceGutierrez was living with Dianne Buchannan and her son Chad. Following an argument between Gutierrez and Dianne, Chad intervened to break up the fight…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Shooting Into A Building cases and more on FLexlaw
HARRIS, Judge.
Appellant, George L. Gutierrez, timely appeals from his judgment and sentence.
Gutierrez was arrested following a shooting incident in Orange County. At the time of the incident he was living with Dianne Buchannan and her son, Chad Buchannan. Gutierrez and Dianne argued; Chad got between them to break up the fight. Gutierrez then went into his bedroom and shut the door. As Chad walked down the hall near the bedroom door, Gutierrez opened the door with a gun in his hand. He and Chad struggled. The gun went off and a bullet struck Chad.
Gutierrez was charged with aggravated battery with a firearm (Count 1), aggravated assault with a firearm (Count 2), shooting into a building (Count 3), and attempted second-degree murder with a firearm (Count 4).
At the close of the state’s case, the defense moved for judgment of acquittal, arguing that the state had not made a prima facie case on any of the charges. The motion was denied. Gutierrez then testified on his own behalf that the shooting was a matter of self-defense. He was acquitted on the assault charge (Count 2); he was found guilty of aggravated battery with a firearm (Count 1), shooting into a building (Count 3), and the lesser included offense of attempted third degree murder (Count 4). Appellant argues first that his conviction for attempted third degree murder must be vacated on the basis of State v. Gray, 654 So. 2d 552 (Fla.1995).
The state concedes error and asks this court to direct the trial court upon remand to enter a judgment for the lesser included offense listed on the verdict form.
We agree that Gray requires a reversal of the conviction of attempted third degree murder. Concerning the state’s argument that appellant’s conviction should be reduced to a lesser included offense, we agree with Alfonso v. State, 661 So. 2d 308 (Fla. 3d DCA 1995), that there can be no lesser included offense to a nonexistent crime. See also, Wilson v. State, 660 So. 2d 1067 (Fla. 3d DCA 1995), rehearing denied, certification granted, 20 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 degree felony murder reversed, other convictions affirmed and remanded to trial court for resentencing); and State v. Miller, 660 So. 2d 272 (Fla.1995) (based on Gray, court would approve Third DCA’s result where that court reversed defendant’s conviction for attempted first degree felony murder, affirmed his conviction for armed robbery, and remanded for resentencing).
We reject Gutierrez’s argument that his motion for judgment of acquittal on the aggravated battery count was improperly denied because the evidence was insufficient to show the touching was unwanted or that he intentionally caused injury. The testimony at trial suggested that appellant had a gun, he and the victim struggled, and during the struggle the gun went off two times. The second bullet struck the victim in the groin, causing great bodily harm. The victim testified that he did not consent to being shot and that he was in fear of Gutierrez because he had a gun. Gutierrez’s argument is without merit.
REVERSED with instructions to vacate conviction for attempted third degree murder and resentencing; AFFIRMED in all other respects.
DAUKSCH and ANTOON, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
State v. Brady, 685 So. 2d 984 (Fla. 5th DCA 1997)…rge, on which the jury was instructed in the first prosecution. See Wilson. That includes aggravated battery with a firearm, the charge which was dismissed in this case. REVERSED and REMANDED. COBB and THOMPSON, JJ., concur. . Gutierrez v. State, 665 So. 2d 294 (Fla. 5th DCA 1995).…
-
Kaplan v. State, 681 So. 2d 1166 (Fla. 5th DCA 1996)…ts.5 . Section 810.02(1) and (2)(b) and section 775.087(2)(a)1, Fla Stat. (1991) (armed burglary of a dwelling). . See State v. Miller, 660 So. 2d 272 (Fla.1995). . See State v. Wilson, 680 So. 2d 411 (Fla. 1996). . See also Gutierrez, v. State, 665 So. 2d 294 (Fla. 5th DCA 1995) (court 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 mur…
-
Riggins v. State, 671 So. 2d 244 (Fla. 1st DCA 1996)…HARGED? IF THE ANSWER IS NO, THEN DO LESSER INCLUDED OFFENSES OF THE CHARGED OFFENSE REMAIN VIABLE FOR A NEW TRIAL? See also Lee v. State, 670 So. 2d 169 (Fla. 1st DCA 1996); Gibson v. State, 667 So. 2d 884 (Fla. 1st DCA 1996); Gutierrez v. State, 665 So. 2d 294 (Fla. 5th DCA 1995); Lee v. State, 664 So. 2d 330 (Fla. 3d DCA 1995), review granted, 673 So. 2d 30 (Fla.1996); Alfonso v. State, 661 So. 2d 308 (Fla. 3d DCA 1995), review granted, No. 86,739, 668 So. 2d 603 (Fla. Jan. 30, 1996); Wilson v. State, 66…
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)
- Eduards Wilson v. State, 660 So. 2d 1067 (Fla. 3d DCA 1995)
- Alfonso v. State, 661 So. 2d 308 (Fla. 3d DCA 1995)
- Valladares v. State, 658 So. 2d 626 (Fla. 5th DCA 1995)
- Selway v. State, 660 So. 2d 1176 (Fla. 5th DCA 1995)
- State v. Miller, 660 So. 2d 272 (Fla. 1995)