JOSEPH WILEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed the conviction for attempted third-degree murder because attempted felony murder is no longer a recognized crime in Florida, but affirmed the second-degree murder conviction and certified a question to the Florida Supreme Court regarding whether attempted manslaughter can be entered as a lesser included offense.
Attempted felony murder is not a valid criminal offense in Florida, and therefore a conviction for attempted third-degree murder must be reversed.
[1] Attempted felony murder is not a recognized criminal offense in Florida and convictions therefor must be reversed.
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Join FLexlaw to unlock all legal intelligenceWiley was charged with first-degree murder and convicted by a jury of the permissive lesser offense of attempted third-degree murder.…
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PER CURIAM.
We reverse the appellant’s conviction for attempted third degree murder, a classification of attempted felony murder, because attempted felony murder is no longer recognized as a criminal offense in Florida. State v. Grinage, 656 So. 2d 457 (Fla.1995); State v. Gray, 654 So. 2d 552 (Fla.1995). The appel-lee argues that this case should be remanded with directions to enter a judgment against the appellant for attempted manslaughter, a necessary lesser included offense of the crime originally charged, attempted first de gree murder. We reject this argument, but consistent -with the action taken in Pratt v. State, 668 So. 2d 1007 (Fla. 1st DCA 1996), and numerous subsequent cases, we certify the following question to the supreme court as one of great public importance:
WHEN A DEFENDANT IS CHARGED WITH FIRST DEGREE MURDER AND IS CONVICTED BY A JURY OF THE PERMISSIVE LESSER OFFENSE OF ATTEMPTED THIRD DEGREE MURDER, A NONEXISTENT CRIME, DOES STATE V. GRAY, 654 So.2D 552 (Fla.1995), PERMIT THE TRIAL COURT, UPON REVERSAL OF THE CONVICTION AND REMAND, TO ENTER JUDGMENT FOR THE OFFENSE OF ATTEMPTED MANSLAUGHTER, A NECESSARY LESSER INCLUDED OFFENSE OF THE CRIME CHARGED?
We affirm the appellant’s conviction for second degree murder. AFFIRMED IN PART AND REVERSED IN PART.
ALLEN, WEBSTER and LAWRENCE, JJ., concur.
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State v. Wiley, 682 So. 2d 1097 (Fla. 1996)…OES STATE V. GRAY, 654 So. 2d 552 (Fla.1995), PERMIT THE TRIAL COURT, UPON REVERSAL OF THE CONVICTION AND REMAND, TO ENTER JUDGMENT FOR THE OFFENSE OF ATTEMPTED MANSLAUGHTER, A NECESSARY LESSER INCLUDED OFFENSE OF THE CRIME CHARGED? Wiley v. State, 672 So. 2d 896, 896 (Fla. 1st DCA 1996). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answered this question in State v. Wilson, 680 So. 2d 411 (Fla.1996), by holding that where a conviction for attempted felony •murder has been vacated on the basis of…
Authorities Cited
- State v. Collin Gray, 654 So. 2d 552 (Fla. 1995)
- State v. Grinage, 656 So. 2d 457 (Fla. 1995)
- Pratt v. State, 668 So. 2d 1007 (Fla. 1st DCA 1996)