DAVID FORD, APPELLANT,
v.
HARRY K. SINGLETARY, JR., SECRETARY, FLORIDA DEPT. OF CORRECTIONS, APPELLEE
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The court held that a conviction for attempted first-degree murder must be vacated if the jury verdict does not specify the theory of conviction, especially after a relevant supreme court decision abolished one of the possible theories.
David Ford was convicted of attempted first-degree murder, charged under theories of attempted premeditated murder or attempted felony murder. The jur…
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PER CURIAM.
By way of a petition for writ of habeas corpus, David Ford claims that his appellate counsel was ineffective for failing to challenge the legality of Ford’s conviction for attempted first degree murder pursuant to State v. Gray, 654 So. 2d 552 (Fla.1995). Specifically, Ford had been charged with one count of attempted first degree murder1 which had been pled as attempted premeditated murder or alternatively, attempted felony murder. The jury was instructed on both theories and found Ford guilty of attempted first degree murder. The jury, however, did not specify the theory under which Ford was convicted. Ford then appealed his conviction to this court.
While his appeal was pending, the supreme court issued the Gray decision which effectively abolished the crime of attempted felony murder. The supreme court further stated that its holding in Gray was to be applicable to “all cases pending 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 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 remanded for a retrial on the charge of attempted first degree murder. State v. Wilson, 680 So. 2d 411 (Fla.1996); Meeks v. State, 667 So. 2d 1002 (Fla. 3d DCA), review denied, 677 So. 2d 840 (Fla. 1996). We therefore grant the petition and vacate Ford’s conviction and sentence for attempted first degree murder and remand this cause for retrial on the charge of attempted premeditated murder. Petition for Writ of Habeas Corpus Granted.
. Ford was also charged with one count of armed robbery'but this is not a subject matter of this appeal.
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Evangelista Lopez v. State, 68 So. 3d 332 (Fla. 5th DCA 2011)…ffect at time of pending appeal); McCann v. Moore, 763 So. 2d 556 (Fla. 4th DCA 2000) (granting belated appeal as counsel had ample time to call favorable decision from another district to court’s attention, but failed to do so); Ford v. Singletary, 689 So. 2d 392 (Fla. 3d DCA 1997) (holding that counsel was ineffective for failing to bring new supreme court decision to court’s attention when it expressly applied to pipeline cases). [*335] In this case, before Lopez’s initial appellate brief was filed, the Fi…
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Granberry v. State, 919 So. 2d 699 (Fla. 5th DCA 2006)…reversal. See, e.g., McCann v. Moore, 763 So. 2d 556 (Fla. 4th DCA 2000) (finding that counsel had ample time to call favorable decision from another district to court’s attention, but failed to do so, so belated appeal granted); Ford v. Singletary, 689 So. 2d 392 (Fla. 3d DCA 1997) (holding that coun [*702] sel was ineffective for failing to bring new supreme court decision to court’s attention when it expressly applied to pipeline cases); Whatley v. State, 679 So. 2d 1269 (Fla. 2d DCA 1996) (determining tha…
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Pierce v. State, 121 So. 3d 1091 (Fla. 5th DCA 2013)…istance of counsel); McCann v. Moore, 763 So. 2d 556 (Fla. 4th DCA 2000) (finding that counsel had ample time to call favorable decision from another district to court’s attention, but failed to do so, so belated appeal granted); Ford v. Singletary, 689 So. 2d 392 (Fla. 3d DCA 1997) (holding that counsel was ineffective for failing to bring new supreme court decision to court’s attention when it expressly applied to pipeline cases); Whatley v. State, 679 So. 2d 1269 (Fla. 2d DCA 1996) (determining that althou…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Collin Gray, 654 So. 2d 552 (Fla. 1995)
- State v. Eduards Wilson, 680 So. 2d 411 (Fla. 1996)
- Meeks v. State, 667 So. 2d 1002 (Fla. 3d DCA 1996)
- Stokes v. State, 685 So. 2d 1368 (Fla. 2d DCA 1996)