STATE OF FLORIDA, PETITIONER,
v.
MAURICE MORSELLS HORN, RESPONDENT; MAURICE MORSELLS HORN, PETITIONER, V. STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court answered two certified questions of great public importance regarding the retroactive application of Coney v. State to pending cases and the proper remedy when a defendant convicted of an attempted lesser-included offense has that conviction reversed. The court held that Coney does not apply retroactively to pipeline cases, and that retrial on lesser-included offenses is the proper remedy.
The Coney prospective ruling does not apply to pipeline cases that were tried before Coney was announced. When a conviction for attempted felony murder is vacated, the proper remedy is retrial on any lesser-included offense that was instructed at trial and is equal to or lesser than the offense of conviction.
[1] A judicial ruling that is given prospective application does not apply to cases that have been tried before the rule was announced, unless explicitly stated otherwise.
[2] When a conviction for attempted felony murder is vacated based on a prior judicial opinion, the proper remedy is retrial on any lesser included offense that was instructe…
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Join FLexlaw to unlock all legal intelligence“In Coney, we expressly held that "our ruling today clarifying this issue is prospective only." Unless we explicitly state otherwise, a rule of law which is to be given prospective application does not apply to those cases which have been tried before the rule is announced.”
Establishes that prospective rulings in Coney do not apply retroactively to pipeline cases tried before the opinion was issued
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Join FLexlaw to unlock all legal intelligenceMaurice Morsells Horn was charged with attempted second-degree murder but was convicted by jury of attempted third-degree felony murder, a lesser-incl…
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PER CURIAM.
We have for review a decision certifying two questions to be of great public importance:
DOES THE DECISION IN [CONEY V. STATE, 653 So. 2d 1009 (Fla.1995)] APPLY TO “PIPELINE CASES,” THAT IS, THOSE OF SIMILARLY SITUATED DEFENDANTS WHOSE CASES WERE PENDING ON DIRECT REVIEW OR NOT YET FINAL DURING THE TIME [CONEY] WAS UNDER CONSIDERATION BUT PRIOR TO THE ISSUANCE OF THE OPINION?
and
WHEN A DEFENDANT IS CHARGED WITH ATTEMPTED SECOND-DEGREE MURDER AND IS CONVICTED BY A JURY OF THE CATEGORY 2 LESSER-INCLUDED OFFENSE OF ATTEMPTED THIRD DEGREE (FELONY) MURDER, DO STATE V. GRAY, 654 So. 2d 552 (Fla.1995), AND SECTION 924.34, FLORIDA STATUTES (1991) REQUIRE OR PERMIT THE TRIAL COURT, UPON REVERSAL OF THE CONVICTION TO ENTER JUDGMENT FOR ATTEMPTED VOLUNTARY MANSLAUGHTER, A CATEGORY 1 NECESSARILY INCLUDED LESSER OFFENSE OF THE CRIME CHARGED? IF THE ANSWER IS NO, THEN DO LESSER-INCLUDED OFFENSES OF THE CHARGED OFFENSE REMAIN VIABLE FOR A NEW TRIAL?
Horn v. State, 677 So. 2d 320, 322, 323 (Fla. 1st DCA 1996). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answered the first question in Boyett v. State, No. 81,971, — So. 2d-[1996 WL 693616] (Fla. Dec. 5,1996). There we wrote:
In Coney, we expressly held that “our ruling today clarifying this issue is prospective only.” Unless we explicitly state otherwise, a rule of law which is to be given prospective application does not apply to those cases which have been tried before the rule is announced. Because Boyett had already been tried when Coney issued, Coney does not apply.
Boyett, slip op. at 5-6, — So. 2d at- -. Accordingly, we answer this certified question in the negative.
We answered the second 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 our opinion in Gray, the proper remedy is retrial on any lesser included offense which was instructed on at trial. Here, Horn’s conviction for third-degree attempted felony murder means he was effectually acquitted of the charged offense of second- degree felony murder. He may therefore be tried on the other offenses instructed on below which were equal to or lesser than third-degree felony murder: attempted manslaughter and aggravated assault. Accordingly, we answer part one of this certified question in the negative, and part two of this certified question in the affirmative.
We answer the certified questions as explained above, approve the district court’s decision, and remand to the district court for proceedings consistent with this opinion.
It is so ordered.
KOGAN, C.J., and OVERTON, SHAW, GRIMES, HARDING, WELLS and ANSTEAD, JJ., concur.
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Evans v. State, 703 So. 2d 1201 (Fla. 1st DCA 1997)…t not on another, and it is impossible to tell which ground the jury selected”), overruled in part on other grounds, Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Horn v. State, 677 So. 2d 320, 323 (Fla. 1st DCA), approved, 684 So. 2d 186 (Fla.1996); Mercer v. State, 656 So. 2d 555 (Fla. 1st DCA 1995). Reversed and remanded. BARFIELD, C.J., and KAHN, J., concur.…
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Kauffman v. State, 729 So. 2d 424 (Fla. 5th DCA 1999)…me Court has repeatedly validated the existence of attempted voluntary manslaughter by holding that defendants may be retried on the lesser included offense of attempted voluntary manslaughter. Lee v. State, 685 So. 2d 1275 (Fla.1996); State v.Horn, 684 So. 2d 186 (Fla.1996); State v.Wiley, 682 So. 2d 1097 (Fla.1996); State v.Pratt, 682 So. 2d 1096 (Fla.1996). Furthermore, Kauffman’s argument does not withstand analysis. His argument that attempted felony murder is the only basis for an attempted murder char…
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Moore v. State, 983 So. 2d 691 (Fla. 1st DCA 2008)…is for the case to be remanded to the trial court for a new trial “on any other offense instructed on below [*693] which was equal to or lesser than” third-degree felony murder. State v. Pratt, 682 So. 2d 1096, 1096 (Fla.1996). Accord State v. Horn, 684 So. 2d 186 (Fla.1996); Young v. State, 695 So. 2d 819 (Fla. 4th DCA 1997). Here, the jury was instructed on manslaughter. Accordingly, we reverse appellant’s conviction for third-degree felony murder and remand for a new trial on manslaughter. AFFIRMED IN PA…
Authorities Cited
- State v. Collin Gray, 654 So. 2d 552 (Fla. 1995)
- Coney v. State, 653 So. 2d 1009 (Fla. 1995)
- State v. Eduards Wilson, 680 So. 2d 411 (Fla. 1996)
- Horn v. State, 677 So. 2d 320 (Fla. 1st DCA 1996)