Amlotte v. State, No. 64107

CourtUnited States State Supreme Court of Florida
Writing for the CourtPER CURIAM; BOYD; OVERTON, J., dissents with an opinion in which McDONALD; OVERTON; McDONALD
Citation456 So.2d 448
PartiesAnita Marie AMLOTTE, Petitioner, v. STATE of Florida, Respondent.
Decision Date06 September 1984
Docket NumberNo. 64107

Page 448

456 So.2d 448
Anita Marie AMLOTTE, Petitioner,
v.
STATE of Florida, Respondent.
No. 64107.
Supreme Court of Florida.
Sept. 6, 1984.

James B. Gibson, Public Defender and Brynn Newton, Asst. Public Defender, Seventh Judicial Circuit, Daytona Beach, for petitioner.

Jim Smith, Atty. Gen. and Margene A. Roper, Asst. Atty. Gen., Daytona Beach, for respondent.

PER CURIAM.

This is a petition to review a decision of the Fifth District Court of Appeal

Page 449

reported as Amlotte v. State, 435 So.2d 249 (Fla. 5th DCA 1983), in which the district court held that "attempted" felony murder is a crime in Florida. The district court certified the following questions to be of great public importance:

a) DOES THERE EXIST UNDER FLORIDA LAW A CRIMINAL OFFENSE OF ATTEMPTED FELONY MURDER?

b) IF SO, WHAT ARE ITS ESSENTIAL CONSTITUENT ELEMENTS?

435 So.2d at 258. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We find that attempted felony murder is a crime in Florida and, therefore, we answer the first certified question in the affirmative. The essential elements of the crime are the perpetration of or the attempt to perpetrate an enumerated felony, together with an intentional overt act, or the aiding and abetting of such an act, which could, but does not, cause the death of another. We approve the decision of the district court.

The facts in the instant case reflect that the petitioner, Amlotte, went to a mobile home and asked to use the occupants' telephone. After being allowed into the trailer to use the telephone, Amlotte went to the door of the home and jumped outside. When she did so, two men covered with white sheets and carrying guns appeared. The woman occupant of the home called out to her husband to shoot the men. The husband, who had loaded his gun when he became suspicious of Amlotte while she was using the telephone, fired at the men. The two men returned fire and then left with Amlotte.

Amlotte was charged, in a three-count information, with unlawfully entering or remaining in a structure with intent to commit an offense therein, shooting into an occupied dwelling, and attempted felony murder. With regard to the attempted felony murder count, the information charged that Amlotte did "unlawfully attempt to kill a human being ... by shooting in the direction of him, and said attempted killing was committed by ... [her] or a person acting in concert with her, while engaged in the perpetration, or in the attempt to perpetrate a burglary." Amlotte was found guilty on each count and was sentenced to serve three concurrent seven and one-half year prison terms.

Petitioner appealed to the Fifth District Court of Appeal, contending that the crime of attempted felony murder does not exist in Florida. The district court, in an en banc decision, affirmed petitioner's conviction for attempted felony murder. Relying on section 777.04(1), Florida Statutes (1981), which defines attempt, and on this Court's decision in Fleming v. State, 374 So.2d 954 (Fla.1979), a majority of the district court held that "attempted first degree murder done in the felony murder mode is a crime." 435 So.2d at 251.

We agree with the district court that the crime of attempted felony murder exists in this state. In Fleming v. State, we considered the validity of a guilty plea to attempted first-degree murder for the shooting of a police officer. The defendant in Fleming asserted that there was no factual basis for the plea because the officer was shot accidentally during a struggle for the defendant's gun. We recognized that "[a]n 'attempt' consists of two essential elements: (1) a specific intent to commit the crime, and (2) a separate overt, ineffectual act done towards its commission." 374 So.2d at 955 (citations omitted). We further noted that "[a]ny homicide committed during the perpetration or attempted perpetration of a felony constitutes first degree murder. State of mind is immaterial for the felony is said to supply the intent." Id. at 956 n. 1 (emphasis added). Although "the offense of attempted first degree murder requires a premeditated design to effect death," we concluded that "where the...

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64 practice notes
  • Jones v. Sec'y, Case No. 3:13-cv-470-J-39JBT
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • November 9, 2015
    ...District of Florida provided a brief recitation of the history behind the Felony causing bodily injury statute:In Amlotte v. State, 456 So.2d 448, 449 (Fla. 1984), the Florida Supreme Court found that attempted felony murder was a common law offense in Florida. However, the court subsequent......
  • State v. Kimbrough
    • United States
    • Supreme Court of Tennessee
    • June 3, 1996
    ...Patterson, 209 Cal.App.3d 610, 257 Cal.Rptr. 407, 409 (1989); State v. Gray, 654 So.2d 552, 554 (Fla.1995) overruling Amlotte v. State, 456 So.2d 448 (Fla.1984); People v. Harris, 72 Ill.2d 16, 17 Ill.Dec. 838, 843, 377 N.E.2d 28, 33 (1978); People v. Viser, 62 Ill.2d 568, 343 N.E.2d 903, 9......
  • NORTH FLA. WOMEN'S HEALTH SERVICES v. State, No. SC01-843.
    • United States
    • United States State Supreme Court of Florida
    • July 10, 2003
    ...For purposes of comparison, a classic case wherein a decision of this Court proved unworkable in this regard was Amlotte v. State, 456 So.2d 448 (Fla.1984). There, we relied on several legal fictions to uphold the existence of the criminal offense of attempted felony murder. Those legal fic......
  • Brown v. State, No. SC95844.
    • United States
    • United States State Supreme Court of Florida
    • October 5, 2000
    ...962 (Fla.1997). Finally, in State v. Gray, 654 So.2d 552 (Fla.1995), this Court adopted Justice Overton's dissent in Amlotte v. State, 456 So.2d 448 (Fla.1984) (Overton, J., dissenting), wherein he argued that the crime of attempted felony murder was logically impossible. The Gray court quo......
  • Request a trial to view additional results
64 cases
  • Jones v. Sec'y, Case No. 3:13-cv-470-J-39JBT
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • November 9, 2015
    ...District of Florida provided a brief recitation of the history behind the Felony causing bodily injury statute:In Amlotte v. State, 456 So.2d 448, 449 (Fla. 1984), the Florida Supreme Court found that attempted felony murder was a common law offense in Florida. However, the court subsequent......
  • State v. Kimbrough
    • United States
    • Supreme Court of Tennessee
    • June 3, 1996
    ...Patterson, 209 Cal.App.3d 610, 257 Cal.Rptr. 407, 409 (1989); State v. Gray, 654 So.2d 552, 554 (Fla.1995) overruling Amlotte v. State, 456 So.2d 448 (Fla.1984); People v. Harris, 72 Ill.2d 16, 17 Ill.Dec. 838, 843, 377 N.E.2d 28, 33 (1978); People v. Viser, 62 Ill.2d 568, 343 N.E.2d 903, 9......
  • NORTH FLA. WOMEN'S HEALTH SERVICES v. State, No. SC01-843.
    • United States
    • United States State Supreme Court of Florida
    • July 10, 2003
    ...For purposes of comparison, a classic case wherein a decision of this Court proved unworkable in this regard was Amlotte v. State, 456 So.2d 448 (Fla.1984). There, we relied on several legal fictions to uphold the existence of the criminal offense of attempted felony murder. Those legal fic......
  • Brown v. State, No. SC95844.
    • United States
    • United States State Supreme Court of Florida
    • October 5, 2000
    ...962 (Fla.1997). Finally, in State v. Gray, 654 So.2d 552 (Fla.1995), this Court adopted Justice Overton's dissent in Amlotte v. State, 456 So.2d 448 (Fla.1984) (Overton, J., dissenting), wherein he argued that the crime of attempted felony murder was logically impossible. The Gray court quo......
  • Request a trial to view additional results

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