JOSEPH P. DEANGELO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In this direct criminal appeal, the court reversed a conviction for attempted felony murder because convictions for both attempted premeditated murder and attempted felony murder of a single victim in a single criminal episode violate double jeopardy principles. The court applied the Supreme Court's reasoning in Gordon v. State to extend the prohibition on dual murder convictions to attempted murder convictions.
Dual convictions for attempted premeditated murder and attempted felony murder of a single victim are impermissible under double jeopardy principles, applying the logical extension of Gordon v. State's prohibition on dual murder convictions. The court reversed the convictions in part and remanded for vacation of one conviction.
[1] Convictions for both attempted premeditated murder and attempted felony murder of a single victim in the course of a single criminal episode constitute a double jeopardy…
[2] The principle that dual convictions for premeditated murder and felony murder are impermissible when only one death has occurred extends to attempted murders.
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Join FLexlaw to unlock all legal intelligence“dual convictions for attempted premeditated murder and attempted felony murder are also impermissible”
Establishes the core holding that the Gordon principle extending to attempted murders
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Join FLexlaw to unlock all legal intelligenceThe appellant was convicted of both attempted premeditated murder and attempted felony murder of a single victim during a single criminal episode. The…
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ALLEN, J.
The appellant in this direct criminal appeal contends that his convictions for attempted premeditated murder and attempted felony murder of a single victim in the course of a single criminal episode constitute a double jeopardy violation. Because this argument is supported by the supreme court’s discussion in Gordon v. State, 780 So. 2d 17 (Fla.2001), we reverse the judgment in part and remand this case to the trial court for vacation of one of the convictions.
Gordon acknowledges the well-established principle that convictions for both premeditated murder and felony murder are impermissible when only one death has occurred, and also recognizes that this principle was not abrogated by the enactment of section 775.021(4), Florida Statutes. Gordon further observes that a logical extension of this principle is that dual convictions for attempted premeditated murder and attempted felony murder are also impermissible. This discussion from Gordon provides the basis for our decision in the present case.
We recognize that the Gordon court referred to an earlier version of the crime of attempted felony murder. However, the legislature has now revived the crime by its enactment of section 782.051(1), Florida Statutes, the statute under which the appellant was convicted in the present case. Comparison of the elements of the current offense with those of the former crime, as set forth in Amlotte v. State, 456 So. 2d 448 (Fla.1984), reveals that the respective elements are nearly identical. Although section 782.051(1) includes “attempt” as one of its elements and thus creates a stand-alone crime, and although the current offense is slightly narrower than its earlier counterpart in that the requisite act committed during the underlying felony cannot be an essential element of that felony, we do not discern any material distinction between the two crimes for purposes of applying the principle recited in Gordon.
The judgment is accordingly reversed to the extent that it reflects convictions for both attempted premeditated murder and attempted felony murder, and this case is remanded to the trial court for vacation of one of the convictions. The trial court should allow the appellee to select the conviction to be vacated.
DAVIS and BENTON, JJ., concur.
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Williams v. State, 90 So. 3d 931 (Fla. 1st DCA 2012)…receded from on other grounds in Valdes v. State, 3 So. 3d 1067 (Fla.2009)). This principle has been extended to convictions for attempted first-degree murder and attempted felony murder from the [*935] same attempted killing. See Deangelo v. State, 863 So. 2d 374 (Fla. 1st DCA 2003); Smith, 973 So. 2d at 1210-1211; Jackson, 868 So. 2d at 1291. Based upon this specific fact scenario where Appellant’s pursuit of the victim constituted one criminal act or one attempted murder, we hold that although Appellant’s…
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Wilkes v. State, 123 So. 3d 632 (Fla. 4th DCA 2013)…ne of his murder convictions must be vacated — the remedy traditionally resorted to by Florida’s courts. See Coughlin v. State, 932 So. 2d 1224, 1226 (Fla. 2d DCA 2006); Jackson v. State, 868 So. 2d 1290, 1290 (Fla. 4th DCA 2004); Deangelo v. State, 863 So. 2d 374, 375 (Fla. 1st DCA 2003); Tucker v. State, 857 So. 2d 978, 980 (Fla. 4th DCA 2003). Here, the trial court sought to avoid the double jeopardy problem by entering judgment for both convictions yet withholding the imposition of sentence for one of the…
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Lakeary Heck v. State, 966 So. 2d 515 (Fla. 4th DCA 2007)…tence). Heck insists that to cure the double jeopardy problem one of his murder convictions must be vacated — the remedy traditionally resorted to by Florida’s courts. See Coughlin, 932 So. 2d at 1226; Jackson, 868 So. 2d at 1290; Deangelo v. State, 863 So. 2d 374 (Fla. 1st DCA 2003); Tucker v. State, 857 So. 2d at 980. The State argues, though, that vacation is not an appropriate remedy because it places the State at risk and results in an unfair windfall to the defendant if one of the convictions is vacate…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bryon Gordon v. State, 780 So. 2d 17 (Fla. 2001)
- Amlotte v. State, 456 So. 2d 448 (Fla. 1984)