RODERICK STOKES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Roderick Stokes appeals the summary denial of his postconviction motion. The court vacates his conviction for attempted first-degree felony murder based on State v. Gray's holding that this crime no longer exists in Florida, while affirming the denial of other ineffective assistance of counsel claims. The case is remanded for resentencing and possible retrial on the armed robbery conviction.
The court vacates Stokes' conviction for attempted first-degree felony murder because State v. Gray established that this crime no longer exists in Florida. The court affirms the denial of Stokes' ineffective assistance of trial counsel claims as facially insufficient or refuted by the appellate record. The court remands for the trial court to determine whether vacating the murder conviction affects the armed robbery sentence and to permit retrial under State v. Wilson guidelines if the state chooses.
[1] A conviction for attempted felony murder is invalid in Florida following the supreme court's decision in State v. …
[2] Ineffective assistance of appellate counsel may be raised by treating a rule 3.850 motion as a petition for writ of habeas corpus.
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“While Mr. Stokes' direct appeal was pending, the supreme court held in State v. Gray, 654 So.2d 552 (Fla.1995), that the crime of attempted felony murder no longer exists in Florida.”
Establishes the controlling legal change that forms the basis for vacating Stokes' conviction.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceIn August 1994, a jury convicted Stokes of armed robbery with a firearm and attempted first-degree felony murder. He was sentenced to 27 years' impris…
The full statement of facts, procedural history, and disposition for this case are member content.
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ALTENBERND, Judge.
Roderick Stokes appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.
In August 1994, a jury convicted Mr. Stokes of armed robbery with a firearm and attempted first-degree felony murder. This court affirmed Mr. Stokes’ convictions, but remanded the case for resentencing. Stokes v. State, 658 So. 2d 1159 (Fla. 2d DCA 1995). While Mr. Stokes’ direct appeal was pending, the supreme court held in State v. Gray, 654 So. 2d 552 (Fla.1995), that the crime of attempted felony murder no longer exists in Florida. Neither the state nor Mr. Stokes’ appellate counsel brought the Gray decision to our attention.
Mr. Stokes’ rule 3.850 motion first contended that because Gray was decided while his appeal was pending, his conviction for attempted first-degree felony murder must be vacated. The trial court denied relief, reasoning that this issue should have been resolved in the direct appeal. We have elected to treat this aspect of Mr. Stokes’ present appeal as a petition for writ of habeas corpus, alleging ineffective assistance of appellate counsel. After reviewing the state’s response on this issue, we conclude that Gray requires us to vacate Mr. Stokes’ conviction for attempted first-degree felony murder. See Gray, 654 So. 2d at 554. On remand, the state may retry Mr. Stokes under the guidelines recently announced in State v. Wilson, 680 So. 2d 411 (Fla. 1996).
Mr. Stokes’ motion also raised several grounds of ineffective assistance of trial counsel. We conclude that these allegations are either facially insufficient or refuted by the documentation in this appellate record.
We observe that Mr. Stokes is serving two concurrent guidelines sentences. These sentences impose 27 years’ imprisonment, followed by probation. We cannot determine from this record whether vacating the attempted first-degree felony murder conviction will affect the sentence on the armed robbery conviction. This is a matter which the trial court should address on remand.
Affirmed in part, reversed in part, and remanded with directions for further proceedings.
PATTERSON, A.C.J., and BLUE, J., concur.
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Ford v. Singletary, 689 So. 2d 392 (Fla. 3d DCA 1997)…ending on direct review or not yet final.” 654 So. 2d at 554. The state properly concedes that Ford received ineffective assistance from appellate counsel when the Gray issue was not raised [*393] on his direct appeal to this court. Stokes v. State, 685 So. 2d 1368 (Fla. 2d DCA 1996). Where as here, it is impossible to determine from the verdict form which of the two theories the jury relied on to convict Ford of attempted first degree murder, the attempted murder conviction must be vacated and the case rema…
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Sutton v. State, 718 So. 2d 215 (Fla. 1st DCA 1998)…he well-established presumption that juries follow trial court instructions, the jury below did not find Appellant guilty of attempted felony-murder, but rather of attempted premeditated murder, as charged.1 Appellant’s reliance on Stokes v. State, 685 So. 2d 1368 (Fla. 2d DCA 1996) is misplaced. Stokes is distinguishable from the instant case because there it was “not possible to determine with any certainty upon which of [*217] the two theories the jury relied in convicting [the defendant] of attempted firs…
Authorities Cited
- State v. Collin Gray, 654 So. 2d 552 (Fla. 1995)
- State v. Eduards Wilson, 680 So. 2d 411 (Fla. 1996)
- Stokes v. State, 658 So. 2d 1159 (Fla. 2d DCA 1995)