MICHAEL GIBSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Gibson was convicted of armed burglary, armed robbery, and sexual battery, but his conviction for attempted first-degree felony murder was reversed because Florida Supreme Court decisions in Gray and Grinage eliminated attempted felony murder as a viable crime. The court affirmed the other convictions and certified a question regarding whether lesser-included offenses remain available after vacating an attempted felony murder conviction.
The court affirmed convictions for armed burglary and armed robbery, but reversed the attempted first-degree felony murder conviction because Gray and Grinage eliminated attempted felony murder as a crime in Florida. The court certified to the Florida Supreme Court the question of whether lesser-included offenses remain available after vacating an attempted felony murder conviction.
[1] Attempted felony murder is no longer a crime in Florida.
[2] When a conviction for attempted first-degree felony murder must be vacated, the viability of lesser-included offenses for a new trial or reduction of the offense is a que…
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Join FLexlaw to unlock all legal intelligence“the Florida Supreme Court held that attempted felony murder is no longer a crime in Florida”
Establishes the legal basis for reversing the attempted felony murder conviction under Gray and Grinage
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Join FLexlaw to unlock all legal intelligenceGibson was charged with eight counts including armed burglary of a dwelling, armed kidnapping, attempted first-degree felony murder, armed robbery, an…
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MICKLE, Judge.
Michael E. Gibson, the appellant, was charged in an eight-count information with armed burglary of a dwelling (Count I), armed kidnapping (II), attempted first-degree felony murder (III), armed robbery (IV), and sexual battery with a deadly weapon (V through VIII).
The jury found him not guilty of armed kidnapping and guilty as charged in Count I and Counts III through VIII.
We affirm the judgment and sentence as to Count I and Counts IV through VIII.
We reverse the conviction in Count III and remand with directions to dismiss that count and to conduct any further proceedings authorized pursuant to State v. Gray, 654 So. 2d 552, 554 (Fla.1995), and State v. Grinage, 656 So. 2d 457, 458 (Fla.1995), in which the Florida Supreme Court held that attempted felony murder is no longer a crime in Florida. Perea v. State, 657 So. 2d 8, 9 (Fla. 3d DCA) (supplemental opinion in light of Gray, on state’s motion for rehearing), rev. den., 663 So. 2d 632 (Fla.1995).
As to the matter of attempted first-degree felony murder and the available options, if any, upon remand, we certify the same question of great public importance raised in Alfonso v. State, 661 So. 2d 308, 309 (Fla. 3d DCA) (on motion for rehearing and certification), came dism., 665 So. 2d 220 (Fla.1995).
In affirming the convictions in Count I and Counts IV through VIII, we have concluded that the trial court did not err when it overruled the defense’s objection to the state’s expert testimony about the statistical significance of a D.N.A. match. See Frye v. United States, 293 F. 1013 (D.C.Cir.1923) (to be admissible, novel scientific evidence must be generally acceptable within the relevant scientific community and found to be reliable); Ramirez v. State, 651 So. 2d 1164 (Fla.1995) (setting forth a four-step test for determining the admissibility into evidence of expert testimony concerning a new or novel scientific principle); Flanagan v. State, 625 So. 2d 827, 829 n. 2 (Fla.1993) (Florida adheres to the Frye test for admissibility of expert testimony relying on some scientific principle or test); Brim v. State, 654 So. 2d 184 (Fla. 2nd DCA), rev. granted, 663 So. 2d 629 (Fla. Oct. 26, 1995); Crews v. State, 644 So. 2d 338 (Fla. 1st DCA 1994) (on motion for rehearing).
Like the defendant in Alfonso, the appellant was convicted of attempted first-degree felony murder. Neither Gray nor Grinage addressed whether, after a conviction for attempted felony murder is vacated, lesser-included offenses remain viable for a new trial or for a reduction of the offense. We recognize that this type of question will arise, and that conflicting results are likely to be reached, in the numerous other cases affected by Gray and Grinage. See, e.g., Selway v. State, 660 So. 2d 1176 (Fla. 5th DCA 1995); Wilson v. State, 660 So. 2d 1067 (Fla. 3d DCA 1995) (on motion for rehearing and certification); Williams v. State, 657 So. 2d 80 (Fla. 1st DCA 1995). Accordingly, we certify the same question presented by the Third District Court in Alfonso, 661 So. 2d at 309:
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?
AFFIRMING judgment and sentence in Count I and Counts IV through VIII; REVERSING judgment and sentence in Count III and remanding for further proceedings in accordance with Gray and Grinage.
JOANOS and LAWRENCE, JJ., concur.
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Blair v. State, 698 So. 2d 1210 (Fla. 1997)…[*1211] ANSTEAD, Justice. We have for review Blair v. State, 667 So. 2d 884 (Fla. 4th DCA 1996), a ease for which we accepted jurisdiction to answer the following questions which were certified to be of great public importance: DO THE FLORIDA AND UNITED STATES CONSTITUTIONS PERMIT A DEFENDANT TO WAIVE HIS RIGHT TO A SIX-ME…
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State v. Gibson, 682 So. 2d 545 (Fla. 1996)…OVERTON, Justice. We have for review Gibson v. State, 667 So. 2d 884 (Fla. 1st DCA 1996). The First District Court of Appeal affirmed six of Michael Gibson’s convictions but reversed his conviction for attempted first-degree felony murder. The reversal was based on this Court’s recent decision in State v. Gray, 654 S…
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Clark v. State, 679 So. 2d 321 (Fla. 3d DCA 1996)…rendered under the “product rule” were properly deemed admissible — without reference to and, indeed, to the exclusion of the so-called “ceiling principle” reflected in a 1992 preliminary report of the National Research Council. Cf. Gibson v. State, 667 So. 2d 884 (Fla. 1st DCA 1996), review granted 678 So. 2d 339 (Fla.1996); Brim v. State, 654 So. 2d 184 (Fla. 2d DCA 1995), review granted, 663 So. 2d 629 (Fla.1995); Vargas v. State, 640 So. 2d 1139 (Fla. 1st DCA 1994), rev’d on other grounds, 667 So. 2d 175…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- State v. Collin Gray, 654 So. 2d 552 (Fla. 1995)
- Flanagan v. State, 625 So. 2d 827 (Fla. 1993)
- Ramirez v. State, 651 So. 2d 1164 (Fla. 1995)
- State v. Grinage, 656 So. 2d 457 (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)
- Brim v. State, 654 So. 2d 184 (Fla. 2d DCA 1995)
- Perea v. State, 657 So. 2d 8 (Fla. 3d DCA 1995)
- Selway v. State, 660 So. 2d 1176 (Fla. 5th DCA 1995)
- Crews v. State, 644 So. 2d 338 (Fla. 1st DCA 1994)