DANNY RAY HARKNESS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Danny Ray Harkness appealed his conviction and sentence under a negotiated plea agreement that included a plea to attempted third-degree felony murder. The court held that attempted third-degree felony murder is a non-existent crime in Florida, requiring reversal of that conviction as fundamental error, while affirming the remaining convictions and remanding for resentencing.
The conviction for attempted third-degree felony murder must be vacated because it is a non-existent crime in Florida and conviction of such a crime constitutes fundamental error requiring reversal regardless of whether the error was invited by the defendant. The remaining convictions are affirmed but remanded for resentencing; however, the state may elect to withdraw from the entire plea agreement due to the material mistake of law.
[1] A conviction for a non-existent crime constitutes fundamental error requiring reversal, irrespective of whether the defendant invited the error.
[2] A plea agreement based on a material mistake of law that benefits the defendant may allow the state to withdraw from the entire agreement.
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Join FLexlaw to unlock all legal intelligence“Attempted third-degree felony murder is a non-existent crime in Florida.”
Establishes the fundamental legal error underlying Harkness's conviction
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Join FLexlaw to unlock all legal intelligenceHarkness was charged with attempted premeditated first-degree murder, arson of a dwelling, criminal mischief, aggravated stalking, and violation of an…
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LAWRENCE, Judge.
Appellant, Danny Ray Harkness (Harkness), seeks review of his judgment and sentence imposed pursuant to a negotiated plea agreement for attempted third-degree felony murder, as well as other offenses. We affirm in part, reverse in part, and remand.
Harkness was charged with attempted premeditated first-degree murder, arson of a dwelling, criminal mischief, aggravated stalking, and violation of an injunction. Harkness entered into a plea agreement in which he agreed to plead no contest to the lesser included offense of attempted third-degree felony murder and to the remaining offenses as charged, in return for a sentencing cap of 84 months in state prison. Pursuant to his sentencing guidelines scoresheet, the lowest permissible sentence was 70.05 months, although the state had agreed that Harkness would be free to urge a downward departure sentence. The court adjudicated Harkness guilty and sentenced him as follows: to 72 months in prison followed by 10 years probation for arson; to 60 months in prison for each of the offenses of attempted third-degree felony murder, criminal mischief, and aggravated stalking; and time served for violation of the injunction. All of the sentences were ordered to run concurrently.
Attempted third-degree felony murder is a non-existent crime in Florida. See State v. Gray, 654 So. 2d 552 (Fla.1995); McLaughlin v. State, 700 So. 2d 392 (Fla. 1st DCA 1997). Conviction of a nonexistent crime is fundamental error which requires reversal, regardless of whether the error was invited by the defendant. See Fredericks v. State, 675 So. 2d 989 (Fla. 1st DCA 1996). Therefore, as to the offense of attempted third-degree murder only, the judgment and sentence is vacated. Additionally, the sentences for each of the remaining offenses are remanded for resentencing pursuant to a newly calculated scoresheet. See Upshaw v. State, 665 So. 2d 303 (Fla. 2d DCA 1995). However, the state shall have the option of withdrawing from the entire plea agreement since the plea agreement was based on a material mistake of law which works to the benefit of Harkness. See Akins v. State, 691 So. 2d 587 (Fla. 1st DCA 1997).
Accordingly, this case is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
ERVIN and PADOVANO, JJ„ CONCUR.
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Citator
Cited By
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Moore v. State, 924 So. 2d 840 (Fla. 4th DCA 2006)…We reverse and remand with instructions that the conviction and sentence for attempted aggravated assault on a law enforcement officer be vacated. The state shall have the option of withdrawing from the entire plea agreement. See Harkness v. State, 771 So. 2d 588 (Fla. 1st DCA 2000). Moore cannot challenge his plea as involuntary because the time limit under rule 3.850 has expired. STONE, FARMER and KLEIN, JJ., concur.…
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Jordan v. State, 801 So. 2d 1032 (Fla. 5th DCA 2001)…me. It is a fundamental principle of Florida jurisprudence that one cannot be convicted of a nonexistent crime. Achin v. State, 436 So. 2d 30, 30 (Fla.1982) (“We hold that one may never be convicted of a nonexistent crime.... ”); Harkness v. State, 771 So. 2d 588 (Fla. 1st DCA 2000); Mundell; Fredericks v. State, 675 So. 2d 989 (Fla. 1st DCA 1996), approved Merritt v. State, 712 So. 2d 384 (Fla.1998); Williams v. State, 516 So. 2d 975 (Fla. 5th DCA 1987). Therefore, Jordan’s conviction and sentence must be r…
Authorities Cited
- State v. Collin Gray, 654 So. 2d 552 (Fla. 1995)
- Fredericks v. State, 675 So. 2d 989 (Fla. 1st DCA 1996)
- Aundra Akins v. State, 691 So. 2d 587 (Fla. 1st DCA 1997)
- Donnie Upshaw, Jr. v. State, 665 So. 2d 303 (Fla. 2d DCA 1995)
- McLAUGHLIN v. State, 700 So. 2d 392 (Fla. 1st DCA 1997)