MICHAEL ALLEN MOTES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Motes appeals the summary denial of his Rule 3.850 collateral attack motion challenging his attempted first-degree murder conviction. The court affirms the denial but certifies to the Florida Supreme Court a question regarding the retroactive application of State v. Gray to judgments that were final when Gray was decided.
The court holds that the motion was neither successive nor untimely because it was filed within two years of State v. Gray. However, the court affirms the trial court's denial without resolving the retroactivity question, instead certifying that question to the Florida Supreme Court.
[1] A motion for postconviction relief is not successive or untimely if filed within two years of a controlling judicial decision that invalidates a theory of conviction, eve…
[2] A conviction based on alternative theories, one of which is legally invalid, requires reversal and remand for retrial on the valid theory when the jury verdict does not s…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Since it is not possible to determine on which theory the jury convicted Motes, either the valid ground of a premeditated act, or the non-existent crime of attempted felony murder, we would reverse his conviction and remand for retrial on the valid ground if this were a direct appeal.”
Establishes the core problem: the ambiguous verdict prevents determination of which legal theory supported conviction
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMotes was convicted of attempted first-degree murder based on a jury instruction that permitted conviction on one of two alternative theories: attempt…
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W. SHARP, Judge.
Motes appeals from a summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court ruled that since this was Motes’ second rule 3.850 motion filed to collaterally attack his conviction for attempted first degree murder and it was filed more than two years after his judgment became final,1 it was both successive and untimely. We disagree, but affirm on other grounds.
In this case, Motes was convicted of attempted first degree murder based on an instruction to the jury that allowed it to convict on one of two alternative theories: attempted felony murder or an intentional act. The verdict form reflects the jury convicted Motes of either attempted premeditad ed first degree murder dr attempted felony murder. His judgment became final before State v. Gray, 654 So. 2d 552 (Fla.1995) was issued. In fact, the prior rule 3.850 motion was also filed prior to Gray. This second motion was filed within two years of Gray. Thus we do not think the current motion was either successive or untimely. See State v. Callaway, 658 So. 2d 988, 987 (Fla.1995).
Since it is not possible to determine on which theory the jury convicted Motes, either the valid ground of a premeditated act, or the non-existent crime of attempted felony murder, we would reverse his conviction and remand for retrial on the valid ground if this were a direct appeal. Allen v. State, 676 So. 2d 491 (Fla. 5th DCA 1996); Humphries v. State, 676 So. 2d 1 (Fla. 5th DCA 1995). Likewise, we would grant similar relief if we were sure that Gray is applicable to judgments which were final when Gray was issued for purposes of making a timely collateral attack. See Freeman v. State, 679 So. 2d 364 (Fla. 4th DCA 1996); Woodley v. State, 673 So. 2d 127 (Fla. 3d DCA 1996).
Recently, in State v. Wilson, 680 So. 2d 411 (Fla.1996), the Florida Supreme Court determined that a defendant whose attempted felony murder conviction was vacated could be subsequently tried and convicted of lesser included offenses. The court reasoned 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 WAS RENDERED BUT FOR WHICH TIMELY COLLATERAL RELIEF IS SOUGHT?
AFFIRMED; Question Certified.
DAUKSCH and GOSHORN, JJ., concur. . Fla. R.Crim. P. 3.850(b).
. Fla. R.App. P. 9.030(a)(2)(A)(vi).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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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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Alzamora v. State, 689 So. 2d 1281 (Fla. 5th DCA 1997)…denying relief because, as noted by the supreme court in State v. Wilson, 680 So. 2d 411 (Fla.1996), attempted felony murder was a valid offense prior to Gray and only became nonexistent when the decision in Gray was issued. See also Motes v. State, 684 So. 2d 852 (Fla. 5th DCA 1996); Freeman v. State, 679 So. 2d 364 (Fla. 4th DCA 1996). However, we certify the following question as one of great public importance: WHETHER STATE V. GRAY, 654 So. 2d 552 (Fla.1995), MUST BE APPLIED RETROACTIVELY TO CASES WHICH…
Authorities Cited
- State v. Collin Gray, 654 So. 2d 552 (Fla. 1995)
- State v. Eduards Wilson, 680 So. 2d 411 (Fla. 1996)
- Freeman v. State, 679 So. 2d 364 (Fla. 4th DCA 1996)
- Woodley v. State, 673 So. 2d 127 (Fla. 3d DCA 1996)
- Miller v. State, 678 So. 2d 465 (Fla. 3d DCA 1996)
- Harnishfager v. Indep. Travel Agencies OF Am., Inc., 676 So. 2d 1 (Fla. 4th DCA 1995)
- Humphries v. State, 676 So. 2d 1 (Fla. 5th DCA 1995)
- Allen v. State, 676 So. 2d 491 (Fla. 5th DCA 1996)