CLIFTON O. GLINTON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Clifton Glinton appealed the denial of his motion to vacate his plea to attempted first degree murder, arguing that Florida Supreme Court's decision in State v. Gray abolished the offense of attempted first degree felony murder. The Third District Court of Appeal affirmed the denial, holding that because Glinton's plea had a valid factual basis for the alternative charge of attempted premeditated murder, he was not entitled to relief.
Glinton is not entitled to relief because although State v. Gray abolished attempted first degree felony murder, it did not abolish attempted premeditated murder, and the record establishes a valid factual basis for the attempted premeditated murder charge. Under Miller v. State, when a defendant pleads to attempted first degree murder based on both alternative theories and a valid factual basis exists for attempted premeditated murder, no relief is warranted.
[1] A plea to attempted first degree murder is not subject to collateral attack if the record establishes a factual basis for attempted premeditated murder, even if the offen…
[2] The offense of attempted first degree felony murder has been abolished.
Previewing 2 of 5 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“That case abolished the offense of attempted first degree felony murder. 654 So.2d at 554. The Gray decision did not, however, abolish the offense of attempted premeditated murder.”
Establishes the distinction between what State v. Gray did and did not abolish
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Join FLexlaw to unlock all legal intelligenceOn May 12, 1994, Glinton entered a plea of nolo contendere to armed burglary with assault, attempted first degree murder (charged alternatively as att…
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COPE, Judge.
Clifton O. Glinton appeals an order denying his motion for postconvietion relief under Florida Rule of Criminal Procedure 3.850. Defendant-appellant Glinton’s main argument is that his plea to the charge of attempted first degree murder should be set aside because the Florida Supreme Court in State v. Gray, 654 So. 2d 552 (Fla.1995), abolished the offense of attempted first degree felony murder. Under the facts of this case, defendant is not entitled to relief.
On May 12, 1994, defendant entered a plea of nolo contendere to the charges of armed burglary with an assault, attempted first degree murder, and resisting an officer without violence. The offense of attempted first degree murder was charged alternatively as attempted premeditated murder and attempted first degree felony murder. Defendant was sentenced to seventeen years with a mandatory minimum term of three years.
In 1995, the Florida Supreme Court announced State v. Gray. That case abolished the offense of attempted first degree felony murder. 654 So. 2d at 554. The Gray decision did not, however, abolish the offense of attempted premeditated murder. Defendant correctly points out that this court subsequently held that the Gray decision is retroactive. Woodley v. State, 673 So. 2d 127, 128-29 (Fla. 3d DCA 1996) (certifying question), review pending, Fla. S.Ct. Case No. 88,116. However, this court later expressed doubt about the correctness of Woodley. Miller v. State, 678 So. 2d 465, 466 (Fla. 3d DCA 1996).
In the present ease, defendant was charged alternatively with attempted premeditated murder and attempted first degree felony murder. This court has held that where a defendant’s plea to attempted first degree murder is based on both attempted premeditated murder and attempted first degree felony murder, the defendant is not entitled to relief if the record shows a valid factual basis for attempted premeditated murder. Miller v. State, 678 So. 2d at 466.*
Here the plea colloquy gives a brief proffer of the factual basis for the plea. The court file contains the deposition of the crime victim. These documents establish a factual basis for the offense of attempted premeditated murder, in addition to attempted first degree felony murder. Under Miller v. State, defendant is entitled to no relief. 678 So. 2d at 466.
Defendant’s alternative claim that he was coerced by counsel into entering into this plea is both conclusory and refuted by the record.
Affirmed.
*
If the record is insufficient on this point then a hearing will be ordered. Brown v. State, 21 Fla. L. Weekly D1318, - So. 2d- (Fla. 3d DCA June 5, 1996).
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James v. State, 700 So. 2d 90 (Fla. 4th DCA 1997)…PER CURIAM. Affirmed. Glinton v. State, 685 So. 2d 1375 (Fla. 3d DCA 1996); Miller v. State, 678 So. 2d 465, 466 (Fla. 3d DCA 1996); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). STONE, C.J., and FARMER and PARIENTE, JJ., concur.…
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Torey Pollock v. State, 704 So. 2d 1109 (Fla. 4th DCA 1998)…or failing to explore the effect of State v. Gray, 654 So. 2d 552 (Fla.1995), we reverse the order and remand the case for an evidentiary hearing, or for attachment of portions of the record which would refute Pollock’s claims. See Glinton v. State, 685 So. 2d 1375 (Fla. 3d DCA 1996). REVERSED and REMANDED for an ev-identiary hearing. GLICKSTEIN and SHAHOOD, JJ., concur.…
Authorities Cited
- State v. Collin Gray, 654 So. 2d 552 (Fla. 1995)
- Woodley v. State, 673 So. 2d 127 (Fla. 3d DCA 1996)
- Miller v. State, 678 So. 2d 465 (Fla. 3d DCA 1996)