DAVID WILLIAM SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that convictions for attempted first-degree murder and attempted felony murder arising from the same act violate double jeopardy.
Defendant pleaded guilty to multiple offenses, including attempted first-degree murder and attempted felony murder, stemming from the same attempted k…
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DAVIS, Judge.
David William Smith contends, and the State concedes, that his convictions for attempted first-degree premeditated murder and attempted felony murder improperly placed him in double jeopardy because they both involved the same attempted killing. We agree.
Smith pleaded guilty to attempted first-degree murder, attempted felony murder, armed burglary, and attempted robbery with a firearm. Although the entry of a plea and a subsequent adjudication of guilt generally precludes a later double jeopardy attack, double jeopardy may be raised under the following circumstances: (1) where the defendant entered a general plea, (2) where the double jeopardy violation is apparent on the face of the record, and (3) where nothing in the record indicates that the defendant waived his right to claim a double jeopardy violation. See Novaton v. State, 634 So. 2d 607, 609 (Fla. 1994).
The instant case meets the Novaton three-part test. Smith entered a general plea, the double jeopardy violation is apparent on the face of the record, and nothing in the record indicates that Smith waived his right to claim a double jeopardy violation. Accordingly, Smith is not precluded from raising double jeopardy as an issue on appeal.
Smith’s double jeopardy challenge is premised on the fact that two of his convictions, attempted first-degree murder and attempted felony murder, both arose out of the same attempted killing. Because the prohibition against double jeopardy precludes dual convictions for the same criminal act, we cannot allow both convictions to stand. Accordingly, while we affirm Smith’s other convictions and sentences, we reverse Smith’s attempted felony murder conviction and sentence and remand with directions to the trial court to vacate that conviction in accord with this opinion. See McCoy v. State, 942 So. 2d 919, 920 (Fla. 2d DCA 2006).
Affirmed in part and reversed in part.
ALTENBERND and STRINGER, JJ., Concur.
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Stuard Antonio Meythaler v. State, 175 So. 3d 918 (Fla. 2d DCA 2015)…defendant entered a general plea, (2) where the double jeopardy violation is apparent on the face of the record, and (3) where nothing in the record indicates that the defendant waived his right to claim a double jeopardy violation.” Smith v. State, 973 So. 2d 1209, 1210 (Fla. 2d DCA 2008); see also Novaton v. State, 634 So. 2d 607, 609 (Fla.1994) (same). Here, Mr. Meythaler entered a general plea and there is nothing in the record indicating that he waived his right to claim a double jeopardy violation. Furth…
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Williams v. State, 90 So. 3d 931 (Fla. 1st DCA 2012)…inciples are distinct. Appellant asserts that his convictions for attempted premeditated first-degree murder and attempted felony murder are a violation of double jeopardy, but cites case law which addresses the merger principle. See Smith v. State, 973 So. 2d 1209, 1210-1211 (Fla. 2d DCA 2008); Jackson v. State, 868 So. 2d 1290, 1291 (Fla. 4th DCA 2004). As such, we review Appellant’s convictions for a double jeopardy violation under both the standard double jeopardy analysis and the principle of merger. I.…
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Wilkes v. State, 123 So. 3d 632 (Fla. 4th DCA 2013)…193, 1196 (Fla.1985) (“[0]nly one homicide conviction and sentence may be imposed for a single death.”). This principle also extends to convictions for attempted murder and attempted felony murder from the same attempted killing. See Smith v. State, 973 So. 2d 1209, 1210-11 (Fla. 2d DCA 2008); Jackson, 868 So. 2d at 1291; Deangelo, 863 So. 2d at 374-75. Because the trial court sentenced Wilkes only on the attempted felony murder conviction, thereby evidencing its clear intent that he be adjudicated on that ch…
Authorities Cited
- Novaton v. State, 634 So. 2d 607 (Fla. 1994)
- Fabricio Gomez v. State, 942 So. 2d 919 (Fla. 1st DCA 2006)
- McCOY v. State, 942 So. 2d 919 (Fla. 2d DCA 2006)