DONNIE UPSHAW, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Donnie Upshaw challenged his convictions for attempted first degree felony murder, arguing Florida no longer recognizes attempted felony murder as a crime following State v. Grinage. The appellate court agreed and vacated the attempted murder convictions while remanding the robbery conviction for resentencing.
The court held that State v. Grinage eliminated attempted felony murder as a cognizable crime in Florida, and that Grinage applies retroactively to all cases pending on direct review or not yet final at the time of State v. Gray. Convictions for a nonexistent offense constitute reversible fundamental error requiring vacation and remand.
[1] A conviction for attempted felony murder is invalid in Florida.
[2] A conviction for a nonexistent offense constitutes reversible fundamental error that need not be preserved for appeal.
Previewing 2 of 6 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“a defendant's conviction for a nonexistent of fense is reversible fundamental error that need not have been preserved for appeal”
Establishes that attempted felony murder convictions based on a crime no longer recognized by law constitute fundamental error requiring reversal
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Join FLexlaw to unlock all legal intelligenceAppellant pleaded no contest to two counts of attempted first degree murder with a firearm and one count of robbery with a firearm. The trial court ad…
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CAMPBELL, Acting Chief Judge.
Appellant challenges oMy Ms convictions on two counts of attempted first degree felony murder on the grounds that Florida no longer recognizes attempted felony murder as a crime. State v. Grinage, 656 So. 2d 457 (Fla.1995). Appellant pled no contest to two counts of attempted first degree murder with a firearm and one count of robbery with a firearm. The court adjudicated appellant guilty and sentenced him to fifteen years on each count. All three counts were to run concurrently with credit for time served. The court also imposed a three-year mim-mum mandatory. The scoresheet maximum sentence was eighteen years. The state concedes error. Given the fact that Grinage was made applicable to all cases pending on direct review or not yet final at the time of State v. Gray, 654 So. 2d 552 (Fla.1995), and this case was not yet final at the time of Gray, we, too, agree that Grinage applies and conclude that appellant’s two convictions for attempted first degree felony murder should be vacated. As observed in Brown v. State, 550 So. 2d 142 (Fla. 1st DCA 1989), a defendant’s conviction for a nonexistent of fense is reversible fundamental error that need not have been preserved for appeal.
Since the nolo plea was entered on a material mistake of law, it was invalid, and no legal sentence could be imposed. Jolly v. State, 392 So. 2d 54 (Fla. 5th DCA 1981). Accordingly, we set aside the plea, judgment and sentence on the two counts of attempted first degree felony murder. On remand, the state may file an amended information as to those two counts in order to charge a valid offense. The robbery with a firearm conviction is remanded for resentencing inasmuch as the sentence imposed was part of the plea agreement along with the two invalid charges.
As to the second issue, we agree with the state that the court did not err in assessing the $800 attorney fee because the state has not sought enforcement of the fee. See Valdez v. State, 632 So. 2d 654 (Fla. 4th DCA 1994).
Accordingly, we reverse the attempted first degree felony murder convictions, set aside the plea and remand the robbery with a firearm conviction for resentencing.
BLUE and WHATLEY, JJ., concur.
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Aundra Akins v. State, 691 So. 2d 587 (Fla. 1st DCA 1997)…So. 2d 180 (Fla. 1st DCA 1994)(“The parties cannot, even by stipulation, confer jurisdiction upon a court where no jurisdiction exists.”) We vacate appellant’s conviction and sentence for first degree attempted felony murder only. Upshaw v. State, 665 So. 2d 303, 304 (Fla. 2d DCA 1995)(vaeating convictions for nonexistent crime of attempted first degree felony murder and invalidating defendant’s nolo plea because entered “on a material mistake of law”). On remand the state may file an information or indictm…
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Harkness v. State, 771 So. 2d 588 (Fla. 1st DCA 2000)…to the offense of attempted third-degree murder only, the judgment and sentence is vacated. Additionally, the sentences for each of the remaining offenses are remanded for resentencing pursuant to a newly calculated scoresheet. See Upshaw v. State, 665 So. 2d 303 (Fla. 2d DCA 1995). However, the state shall have the option of withdrawing from the entire plea agreement since the plea agreement was based on a material mistake of law which works to the benefit of Harkness. See Akins v. State, 691 So. 2d 587 (Fl…
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Triston Ellis v. State, 685 So. 2d 859 (Fla. 1st DCA 1996)…felony murder conviction is vacated on authority of State v. Guy, lesser included offenses remain viable for a new trial or for reduction of the convicted offense. As predicted in Gibson, a slightly different result was reached in Upshaw v. State, 665 So. 2d 303 (Fla. 2d DCA 1995). There, the Second District recognized that under Gray, Upshaw’s two convictions of attempted first-degree felony murder were required to be vacated. However, rather than certification, the court instructed that on remand, “the st…
Authorities Cited
- State v. Collin Gray, 654 So. 2d 552 (Fla. 1995)
- Jolly v. State, 392 So. 2d 54 (Fla. 5th DCA 1981)
- State v. Grinage, 656 So. 2d 457 (Fla. 1995)
- Brown v. State, 550 So. 2d 142 (Fla. 1st DCA 1989)
- Williams v. State, 632 So. 2d 654 (Fla. 4th DCA 1994)