MARKHAM YOUNG, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Markham Young appealed his jury convictions for attempted third-degree felony murder and armed burglary of a dwelling. The court reversed the attempted murder conviction based on controlling precedent but affirmed the burglary conviction, remanding for potential retrial on lesser included offenses of attempted manslaughter, aggravated assault, battery, and assault.
The court reversed Young's attempted third-degree felony murder conviction under State v. Gray but affirmed the armed burglary conviction. The court remanded for retrial on lesser included offenses. The court dismissed Young's request for an advisory opinion regarding his guilty plea as not ripe for review.
[1] A conviction for attempted third degree felony murder may be reversed on appeal, and the defendant may be retried on lesser included offenses that were instructed on and…
[2] The affirmative defense to burglary of being "licensed or invited to enter or remain" is disproven beyond a reasonable doubt by evidence showing the defendant's license o…
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“Under State v. Riggins, 684 So.2d 818 (Fla. 1996), a defendant convicted of attempted third degree felony murder may after remand be tried on "other offenses instructed on below which were equal to or lesser than attempted third-degree felony murder-"”
Establishes the legal basis for remanding to allow retrial on lesser included offenses following reversal of the attempted murder conviction.
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Join FLexlaw to unlock all legal intelligenceYoung was charged with attempted third-degree felony murder, armed burglary of a dwelling with assault or battery, and possession of a firearm by a co…
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POLEN, Judge.
Markham Young appeals the judgment entered against him after a jury found him guilty of attempted third degree felony murder and armed burglary of a dwelling with assault or battery. Young was also charged with possession of a firearm by a convicted felon, and pleaded guilty to that charge after trial. In accord with the state’s concession, we reverse Young’s conviction for attempted third degree felony murder on the authority of State v. Gray, 654 So. 2d 552 (Fla.1995). Under State v. Riggins, 684 So. 2d 818 (Fla. 1996), a defendant convicted of attempted third degree felony murder may after remand be tried on “other offenses instructed on below which were equal to or lesser than attempted third-degree felony murder-” Id. at 818. Therefore, we remand for retrial on the lesser included charges of attempted manslaughter, aggravated assault, battery, and assault. State v. Pratt, 682 So. 2d 1096 (Fla.1996); State v. Wilson, 680 So. 2d 411 (Fla.1996).
Regarding Young’s conviction for armed burglary of a dwelling with assault or battery, Young argues his motion for judgment of acquittal should have been granted on this charge because he was “licensed or invited to enter or remain” in the victim’s dwelling, which is an affirmative defense to the burglary charge.1 We find no error in the denial of Young’s motion for judgment of acquittal because the question of Young’s possessory interest in the victim’s dwelling was properly submitted to the jury. Although the evidence was not without conflict, the state presented evidence disproving Young’s defense beyond a reasonable doubt. See Hansman v. State, 679 So. 2d 1216 (Fla. 4th DCA 1996) (stating defendant has the burden of initially offering evidence to establish the affirmative defense, after which the burden shifts to the state to disprove the defense beyond a reasonable doubt).
The victim, Lawana Wilson, testified she requested Young return his key to her house during an argument several hours before the crime, which Young did by throwing the key at Wilson, after which Young immediately left the house. Wilson’s cousin testified Young knocked on the door of Wilson’s house when he returned that evening, and the cousin did not open the door for Young because he did not have Wilson’s permission to allow Young to enter the house. Finally, another witness testified Wilson told everyone in the house not to allow Young back into the house on the evening of the crime. Admitting these facts and every conclusion favorable to the state that a jury might reasonably and fairly infer from the evidence, Burke v. State, 672 So. 2d 829 (Fla. 1st DCA 1995), the trial court properly denied Young’s motion for judgment of acquittal on the burglary charge. A jury could not reasonably conclude the evidence failed to exclude every reasonable hypothesis of innocence. Green v. State, 408 So. 2d 1086 (Fla. 4th DCA 1982).
As to Young’s final point on appeal, he asks this court for an advisory opinion regarding the potential effect, if any, a reversal on either or both of his primary felony charges would have on a motion to withdraw his plea to the possession of a firearm by a convicted felon charge. A motion to withdraw has not been filed, argued, nor ruled on by the trial court, and therefore this issue is not ripe for our review. We dismiss this point without prejudice to Young filing an appropriate motion in the trial court should he elect to do so.
AFFIRMED in part, REVERSED in part, and REMANDED.
WARNER and GROSS, JJ., concur. . Section 810.02 provides in pertinent part:
810.02 Burglary.—
(1) “Burglary” means entering or remaining in a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.
(Emphasis supplied).
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D.R. v. State, 734 So. 2d 455 (Fla. 1st DCA 1999)…ould return to get their things. The prosecutor did not ask a follow-up question that might have elicited a clearer response as to whether Brandon adequately communicated the withdrawal of consent for D.R. to enter the residence. Cf. Young v. State, 695 So. 2d 819 (Fla. 4th DCA 1997) (trial court properly denied motion for J.O.A. on charge of armed burglary of a dwelling with assault of battery, where Young’s affirmative defense was that he was “licensed or invited to enter or remain” in victim’s dwelling, an…
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Moore v. State, 983 So. 2d 691 (Fla. 1st DCA 2008)…court for a new trial “on any other offense instructed on below [*693] which was equal to or lesser than” third-degree felony murder. State v. Pratt, 682 So. 2d 1096, 1096 (Fla.1996). Accord State v. Horn, 684 So. 2d 186 (Fla.1996); Young v. State, 695 So. 2d 819 (Fla. 4th DCA 1997). Here, the jury was instructed on manslaughter. Accordingly, we reverse appellant’s conviction for third-degree felony murder and remand for a new trial on manslaughter. AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with di…
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Velazquez v. State, 727 So. 2d 1096 (Fla. 5th DCA 1999)…This appeal, in effect, seeks review of issues never considered by the trial court. As such, the issues are not ripe for review. See Williams v. State, 23 Fla. L. Weekly 1059, - So. 2d -, 1998 WL 199362 (Fla. 2d DCA April 24, 1998); Young v. State, 695 So. 2d 819 (Fla. 4th DCA 1997). Accordingly, we dismiss the appeal without prejudice to Velazquez to file a proper motion under Florida Rules of Criminal Procedure 3.800(a), see Glanton v. State, 705 So. 2d 945 (Fla. 1st DCA 1998) (miscalculations apparent on…
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)
- Green v. State, 408 So. 2d 1086 (Fla. 4th DCA 1982)
- Hansman v. State, 679 So. 2d 1216 (Fla. 4th DCA 1996)
- Burke v. State, 672 So. 2d 829 (Fla. 1st DCA 1995)
- State v. Pratt, 682 So. 2d 1096 (Fla. 1996)
- Bemis v. State, 682 So. 2d 1096 (Fla. 1996)
- State v. Riggins, 684 So. 2d 818 (Fla. 1996)