JOHNNY MILLER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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SCHWARTZ, Chief Judge.
In 1992, Miller pled nolo to, among other charges, two counts of attempted first degree murder. Both counts alleged alternative claims of attempted premeditated murder and attempted felony murder. Relying on State v. Gray, 654 So. 2d 552 (Fla.1995), Woodley v. State, 673 So. 2d 127 (Fla. 3d DCA 1996) and Brown v. State, — So. 2d — [1996 WL 293635] (Fla. 3d DCA Case no. 95-3401, opinion filed, June 5, 1996), the defendant now seeks 3.850 relief from those convictions. We affirm the denial of his motion on that ground.
Even if we may indulge the very dubious assumption that Woodley and Brown survive the Supreme Court’s recent treatment of Gray in State v. Wilson, 679 So. 2d 411 (Fla.1996), reversal is not in order. In a similar situation, Brown ordered a hearing to determine whether there was a factual basis for the supportable charge of attempted premeditated murder, as opposed or in addition to the supposedly “non-existent” crime of attempted felony murder. In this case, however, the factual stipulation and other matters of record already and clearly make out a case of attempted premeditated murder. See Bello v. State, 547 So. 2d 914 (Fla.1989). See generally Suarez v. State, 616 So. 2d 1067 (Fla. 3d DCA 1993). Hence, no purpose will be served by a remand.
Affirmed.
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Freeman v. State, 679 So. 2d 364 (Fla. 4th DCA 1996)…If, as the supreme court has said in Wilson, the crime existed, then it follows that Gray would not be retroactive. The third district, which decided Woodley, has also noted that Wilson easts doubt on the retroactivity of Gray. See Miller v. State, 678 So. 2d 465 (Fla. 3d DCA 1996). We therefore affirm the order denying the rule 3.850 motion, but certify the following question as one of great public importance. IS STATE V. GRAY, 654 So. 2d 552 (Fla.1995), RETROACTIVE? Affirmed. DELL and PARIENTE, JJ., co…
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Boudreaux v. State, 693 So. 2d 66 (Fla. 5th DCA 1997)…W. SHARP, Judge. ■ We affirm the trial court’s summary denial of Boudreaux’s motion filed pursuant to Florida Rule of Criminal Procedure 3.850. See Motes v. State, 684 So. 2d 852 (Fla. 5th DCA 1996); Miller v. State, 678 So. 2d 465 (Fla. 3d DCA 1996). AFFIRMED. DAUKSCH and THOMPSON, JJ., concur.…
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Motes v. State, 684 So. 2d 852 (Fla. 5th DCA 1996)…that attempted felony murder “only became non-existent when we decided Gray.” This language casts doubt on the retroactive application of Gray to collateral attacks on a judgment which was final when Gray was rendered. See Freeman; Miller v. State, 678 So. 2d 465 (Fla. 3d DCA 1996). Accordingly, we affirm but we join our sister courts in certifying the following question to the Florida Supreme Court:2 SHOULD THE RULE ANNOUNCED IN GRAY BE APPLIED RETROACTIVELY TO CASES WHICH WERE FINAL WHEN THAT DECISION WA…
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- State v. Collin Gray, 654 So. 2d 552 (Fla. 1995)
- Bello v. State, 547 So. 2d 914 (Fla. 1989)
- Suarez v. State, 616 So. 2d 1067 (Fla. 3d DCA 1993)
- Woodley v. State, 673 So. 2d 127 (Fla. 3d DCA 1996)