Amlotte v. State

• Decision Date: 12 May 1983
• Docket Number: No. 81-917,81-917
• Citation: 435 So.2d 249
• Parties: Anita Marie AMLOTTE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 249

435 So.2d 249

Anita Marie AMLOTTE, Appellant, v. STATE of Florida, Appellee.

No. 81-917.

District Court of Appeal of Florida,

Fifth District.

May 12, 1983.

Rehearing Denied Aug. 4, 1983.

James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.

DAUKSCH, Judge.

This is an appeal from convictions for armed burglary, shooting at or into an occupied building and attempted felony murder. Because this case presents a ruling which could have resulted in a conflict with another case pending before a different panel of judges of this court, we have decided this case en banc.

The first question for us to decide is whether "attempted felony murder" is a crime.

The facts of this case are that appellant went to a mobile home and asked for permission to use the occupant's telephone. As she left the home she jumped out of the doorway and two armed men wearing white sheets entered. At this point the woman occupant of the home told her husband, who was hiding behind another door because they were suspicious, "Shoot them, Al." Al shot. The gunmen returned the fire and retreated, along with appellant.

These events caused appellant to be charged with armed burglary because as a "principal in the first degree," Section 777.011, Florida Statutes (1981), she aided those armed men to commit the burglary. The burglary was complete when they entered the home with the intent to commit an offense while therein. She was also charged with shooting at or into an occupied building and was properly convicted of that crime, just as she was properly convicted of the armed burglary, because under section 777.011, Florida Statutes, she was a principal in the first degree by aiding the burglars in their deeds.

Her conviction for "attempted felony murder" was based upon an information which charged that she 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..."

There is no crime of "felony murder" but there is a crime of murder in the first degree ¹ which includes what we lawyers commonly call "felony murder," that is, the killing of a human being while the killer is engaged in the commission, or the attempt to commit certain listed felonies. If there is an unlawful killing during the commission of a felony listed in the first degree murder statute but the felony perpetrator is not the killer then a second degree murder statute may apply. ² There is also a But how can one be guilty of attempted first degree murder, of the felony murder type, if no one, especially not this appellant, specifically intended to kill? ⁴ Appellant says "[f]elony murder is, by its nature, a crime of inadvertence, and one cannot specifically intend to attempt a negligent act." In her assertion she cites no authority for her conclusion that the crime is one of inadvertence or negligence. The statute does not state that this is the nature of the crime and we suggest the legislature did not intend such a meaning. The evil to be punished under the felony murder statutes is that of killing a person while committing a felony where the proof of premeditated design is lacking. That is, if the robber, or burglar or rapist, etc., intends only to rob or burglarize or rape and another person gets killed by the robber's or burglar's or rapist's acts then the state need not prove either the specific intent to, or the premeditated design to kill. The statute calls for punishment even though intent to murder cannot be proved.

third degree murder (felony murder) which is the killing of a human being while the killer is committing or attempting to commit any felony not listed in the "murder one" statute. ³ The fact that the information says "attempted felony murder" rather than attempted murder in the first degree is not important since the substantive charge is sufficient, in its entirety, to charge attempted first degree murder.

By extension, attempted first degree murder done in the felony murder mode is a crime. Section 777.04(1) ⁵ says whoever attempts to commit a crime and fails is also guilty of a crime. Here the facts fit well into the mold--the gunman while committing a burglary shot at the victims. If the bullet had hit the right spot and the victim had died then first degree murder would be the crime. Since the bullet failed to hit the right spot and the victim did not die, the burglar can be charged only with the attempt.

Our Supreme Court answered the question in this case in Fleming v. State, 374 So.2d 954, 956 (Fla.1979), when it said, "[T]he offense of attempted first degree murder requires a premeditated design to effect death. In cases where the alleged 'attempt' occurs during the commission of a felony, however, the law presumes the existence of premeditation, just as it does under the felony murder rule." (citations omitted). However it is reasoned, there is a crime of attempted first degree murder, or attempted "felony murder," and this appellant was guilty under section 777.011 because she aided in the commission of it. See also Taylor v. State, 401 So.2d 812 (Fla. 5th DCA 1981) and Hampton v. State, 336 So.2d 378 (Fla. 1st DCA 1976).

The second question on appeal is whether the court erred in sentencing appellant to prison for both the attempted murder and the burglary convictions. The answer is yes. State v. Hegstrom, 401 So.2d 1343 (Fla.1981). c.f. Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983).

The third question involves appellant's assertions regarding her entitlement to credit for time served in jail while awaiting trial. She contends she should get credit on each sentence rather than one sentence only.

We cannot agree with the appellant that concurrent sentences for identical terms of years compel presentence jail time credit on each sentence. Nothing in section 921.161, Florida Statutes (1981), requires, or even suggests, this construction. We held in Fenn v. State, 418 So.2d 286 (Fla. 5th DCA 1982), that where there are two sentences for two crimes, the credit for pre-sentence jail time need not be allocated to both of those sentences. We made no attempt in Fenn to distinguish between consecutive and concurrent sentences.

The appellant's reliance on the Florida Supreme Court case of Jenkins v. Wainwright, 285 So.2d 5 (Fla.1973), is misplaced. The sentence in that case, which was imposed at a time when the granting of credit for time served was discretionary with the trial judge, was ambiguous, and the Supreme Court's opinion merely dealt with the reasonable interpretation of the intent of the sentencing judge. In the instant case, the intent is unambiguous: Amlotte was sentenced to serve seven-and-one-half years for armed burglary on Count I, with credit for time served; she was sentenced to serve seven-and-one-half years for shooting into an occupied building on Count II, to run concurrently with Count I; and she was sentenced to serve seven-and-one-half years for attempted murder on Count III, to run concurrently with the sentences for Counts I and II. She expressly was not accorded any credit for jail time in respect to Counts II and III.

Since we are vacating the sentence for armed burglary, wherein the credit was applied, the jail time credit shall be applied to one, but not both, of the remaining sentences in accordance with the clear expression of the intent of the trial judge. This correction, together with that concerning the second issue, should be made by the trial judge on remand. Such sentence corrections do not require the presence of the defendant.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

ORFINGER, C.J. and FRANK D. UPCHURCH, Jr., J., concur.

COBB, J., concurs specially with opinion.

SHARP, J., concurs specially with opinion.

COWART, J., dissents with opinion.

COBB, Judge, concurring.

I concur with the majority's conclusion that the crime of attempted first degree murder based upon the felony murder rule, as opposed to actual premeditation, exists in Florida because of the holding of our Supreme Court in Fleming v. State, 374 So.2d 954 (Fla.1979). In that case Fleming and a companion were engaged in an armed robbery of a public building in Fort Myers, Florida, when interrupted by the police. A gun battle ensued, resulting in two deaths and several injuries. At one point in the melee, Fleming struggled with one Lt. Spurlin, of the Fort Myers Police Department, for control of a pistol, which discharged, wounding Spurlin. Fleming was charged, inter alia, with attempted first degree murder of Spurlin. Fleming pled guilty to this charge, then appealed, contending there was no factual basis to support the plea since Spurlin was shot accidentally.

The Florida Supreme Court disagreed, holding:

[T]he offense of attempted first degree murder requires a premeditated design to effect death. In cases where the alleged "attempt" occurs during the commission of a felony, however, the law presumes the existence of premeditation, just as it does under the felony murder rule. Adams v. State, 341 So.2d 765 (Fla.1976); Knight v. State, 338 So.2d 201 (Fla.1976). ¹ Because the appellant was engaged in the commission of a felony when Lt. Spurlin was shot, the accidental nature of the shooting is irrelevant. We find no error.

1 Any 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.

This language, whatever its arguable logic, leaves no room for artificial construction as to its meaning. It is an unequivocal recognition by the Florida Supreme Court of the existence of attempted "felony murder," just as the...