BRIAN DAVID LEE, 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 conviction for attempted felony murder is vacated, holding that Coney applies only prospectively and that a defendant whose conviction is vacated may be retried on lesser-included offenses that were instructed on at trial.
The Court answered the first question in the negative: Coney applies prospectively only and does not apply to pipeline cases already tried before Coney was issued. The Court answered the second question by holding that retrial on any lesser-included offense instructed on at trial is the proper remedy; Lee's conviction for third-degree attempted felony murder constituted an effective acquittal of second-degree felony murder, so he may be retried on attempted manslaughter and aggravated assault.
[1] A judicial ruling clarifying a defendant's right to be physically present at the immediate site where jury challenges are exercised is prospective only and does not apply…
[2] When a conviction for attempted felony murder is vacated, the proper remedy is retrial on any lesser included offense that was instructed upon at the original trial.
Previewing 2 of 3 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“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 the prospective-only application of Coney and its non-applicability to pipeline cases.
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Join FLexlaw to unlock all legal intelligenceLee was charged with attempted second-degree murder and convicted by jury of attempted third-degree felony murder, a lesser-included offense. His conv…
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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.), cert. denied, — U.S. —, 116 S.Ct. 315, 133 L.Ed.2d 218 (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?
Lee v. State, 670 So. 2d 169, 170 (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, 21 Fla. L. Weekly S535, — So. 2d — (Fla. Dec. 5,1996). We acknowledged there that we had incorrectly accepted the State’s concession that not allowing Coney to be present at the immediate site of juror challenges was error. In Boyett we wrote, “In Coney, we held for the first time that a defendant has a right under [Florida Rule of Criminal Procedure] 3.180 to be physically present at the immediate site where challenges are exercised.” Boyett, slip op. at 5, — So. 2d at-. We therefore receded from that part of Coney where we applied the new definition of “presence” to Coney himself. The result of Coney remained unchanged, however, since we had found the error harmless. We went on to address prospective application:
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, — So. 2d at-(citations omitted).
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, Lee’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 for proceedings consistent with this opinion.
It is so ordered.
KOGAN, C J., and OVERTON, GRIMES, HARDING, WELLS and ANSTEAD, JJ., concur. SHAW, J., concurs in result only.
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Wykiza L. Brock v. State, 954 So. 2d 87 (Fla. 1st DCA 2007)…10, 160 So. 485, 486-87 (1935). On remand, appellant may be tried only for battery in violation of section 784.03, Florida Statutes (2003), because that is the only other lesser-included offense as to which the jury was instructed. See Lee v. State, 685 So. 2d 1275, 1276-77 (Fla.1996); Gleason, 591 So. 2d at 279. We reverse appellant’s conviction for attempted sexual battery, and remand for further proceedings consistent with this opinion. REVERSED and REMANDED, with directions. ALLEN, WEBSTER, and ROBERTS,…
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Kauffman v. State, 729 So. 2d 424 (Fla. 5th DCA 1999)…ce its decision in Gray, the Florida Supreme 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 th…
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State v. Jones, 685 So. 2d 1280 (Fla. 1996)…first- and second-degree murder charges. She may therefore be tried on the offenses instructed on at trial which were of a degree lesser than or equal to attempted third-degree murder: attempted manslaughter and aggravated assault. See Lee v. State, 685 So. 2d 1275 (Fla.1996). As to the second question, we agree with the district court and hold that the “vulnerability” of a tourist such as in the instant case is not sufficient to justify departure from the sentencing guidelines. In Wemett, this Court reasoned…
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)
- Kelly v. State, 670 So. 2d 169 (Fla. 1st DCA 1996)