TIMOTHY CAMPBELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Timothy Campbell was convicted by jury of attempted first degree murder, robbery with a deadly weapon, and aggravated battery. The appellate court reversed the attempted first degree murder conviction because the jury may have relied on an instruction for the non-existent crime of attempted felony murder, which Florida's Supreme Court had recently determined does not exist.
Campbell's conviction for attempted first degree murder is reversed and the case is remanded for a new trial. The court determined that instructing the jury on the non-existent crime of attempted felony murder constitutes fundamental error, and because the record does not show the jury's verdict was based on attempted premeditated murder rather than attempted felony murder, the conviction cannot be deemed harmless.
[1] A conviction for attempted felony murder is invalid in Florida.
[2] A conviction based on a non-existent crime constitutes fundamental error.
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Join FLexlaw to unlock all legal intelligence“there is no such crime as the offense of attempted felony murder in Florida”
Establishes the controlling legal principle from State v. Gray that the crime of attempted felony murder does not exist in Florida
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Join FLexlaw to unlock all legal intelligenceCampbell was tried by jury on charges of attempted first degree murder with a firearm, robbery with a deadly weapon, and aggravated battery upon a per…
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STEVENSON, Judge.
Appellant, Timothy Campbell, was tried by jury and convicted of attempted first degree murder with a firearm, robbery with a deadly weapon, and aggravated battery upon a person aged sixty-five or older. Because the record suggests that Campbell may have been convicted of the non-existent crime of attempted felony murder, we reverse Campbell’s conviction for attempted first degree murder and remand for a new trial.
At trial, the state relied upon dual theories of murder: attempted premeditated murder and attempted felony murder. Both theories were raised during closing argument and the trial court instructed the jury on both theories as well. Recently our Supreme Court receded from its decision in Amlotte v. State, 456 So. 2d 448 (Fla.1984), and determined that there is no such crime as the offense of attempted felony murder in Florida. State v. Gray, 654 So. 2d 552 (Fla.1995). In so ruling, the court mandated that its decision must be applied to all cases pending on direct review or not yet final. Id. at 554. Because the state relied upon the attempted felony murder theory at trial, there is a chance the jury convicted Campbell based upon that theory. Although the state recognizes the potential impact of Gray, the state asserts that appellant failed to'object to the instruction below, and therefore this court must apply a fundamental error analysis to the case. We agree that the absence of an objection requires a fundamental error analysis, but we have no difficulty in arriving at the conclusion that it is fundamental error for a defendant to be convicted of a non-existent crime. See Williamson v. State, 510 So. 2d 335 (Fla. 4th DCA 1987).
On the record before us, we cannot conclude beyond a reasonable doubt that the jury did not find Campbell guilty of attempted first degree murder based on the attempted felony murder instruction given by the trial court; therefore, the error cannot be considered harmless. See State v. DiGuilio, 491 So. 2d 1129 (Fla.1986). Accordingly, we reverse Campbell’s conviction and sentence for attempted first degree murder and remand for a new trial. We affirm appellant’s other convictions.
Affirmed in part, reversed in part and remanded.
GLICKSTEIN and KLEIN, JJ., concur.
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State v. Brady, 685 So. 2d 984 (Fla. 5th DCA 1997)…to vacate the judgment and remand for retrial on the existent crime. The rationale is that in such cases, it is impossible to determine on which theory the jury convicted. See Humphries v. State, 676 So. 2d 1 (Fla. 5th DCA 1995); Campbell v. State, 671 So. 2d 876 (Fla. 4th DCA 1996). In Taylor, the court stated that there may be a verdict for attempted manslaughter if there is proof that the defendant had the requisite intent to commit an unlawful act. It held that manslaughter by culpable negligence was a…
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Spencer v. State, 693 So. 2d 1001 (Fla. 4th DCA 1997)…hat its decision would apply to cases pending on direct review or not yet final. Id. at 554. Additionally, appellant did not need to preserve this issue in order to argue on appeal that he was convicted of a nonexistent crime. See Campbell v. State, 671 So. 2d 876, 877 (Fla. 4th DCA 1996); Tape v. State, 661 So. 2d 1287, 1289 (Fla. 4th DCA 1995). The state maintains that any error was harmless because the evidence supported a conviction for attempted first-degree premeditated murder. However, because the jur…
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Kaplan v. State, 681 So. 2d 1166 (Fla. 5th DCA 1996)…convicted. See Humphries v. State, 676 So. 2d 1 (Fla. 5th DCA, 1995) (defendant charged with attempted murder of victim either by premeditation or during commission of a felony, and jury simply found defendant guilty as charged.); Campbell v. State, 671 So. 2d 876 (Fla. 4th DCA 1996) (defendant, convicted of attempted first degree murder based on either attempted felony murder or attempted premeditated murder, but appellate court could not conclude beyond a reasonable doubt that he was not convicted on the at…
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. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- State v. Collin Gray, 654 So. 2d 552 (Fla. 1995)
- Amlotte v. State, 456 So. 2d 448 (Fla. 1984)
- Williamson v. State, 510 So. 2d 335 (Fla. 4th DCA 1987)