Brown v. State

Decision Date05 October 2000
Docket NumberNo. SC95844.,SC95844.
Citation790 So.2d 389
PartiesDarnell L. BROWN, Petitioner, v. STATE of Florida, Respondent.
CourtFlorida Supreme Court

James B. Gibson, Public Defender, and Noel A. Pelella and Barbara C. Davis, Assistant Public Defenders, Seventh Judicial Circuit, Daytona Beach, FL, for Petitioner.

Robert A. Butterworth, Attorney General, and Belle B. Schumann and Wesley Heidt, Assistant Attorneys General, Daytona Beach, FL, for Respondent.

PER CURIAM.

We have for review a decision ruling upon the following question certified to be of great public importance:

DOES THE CRIME OF ATTEMPTED SECOND DEGREE MURDER EXIST IN FLORIDA?

Brown v. State, 733 So.2d 598, 599 (Fla. 5th DCA 1999). We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution. We answer the certified question in the affirmative.

Brown was convicted of attempted second-degree murder. On appeal, Brown argued that the crime of attempted second-degree murder is a nonexistent crime. The district court affirmed the conviction but certified the above question to our Court.

We recently addressed the crime of attempted second-degree murder in State v. Brady:

The offense of attempted second-degree murder does not require proof of the specific intent to commit the underlying act (i.e., murder). See Gentry v. State, 437 So.2d 1097 (Fla.1983). In Gentry, we held that the crime of attempted second-degree murder does not require proof of the specific intent to kill. Although the crime of attempt generally requires proof of a specific intent to commit the crime plus an overt act in furtherance of that intent, we reasoned: "If the state is not required to show specific intent to successfully prosecute the completed crime, it will not be required to show specific intent to successfully prosecute an attempt to commit that crime." Id. at 1099. To establish attempted second-degree murder of Harrell, the state had to show (1) that Brady intentionally committed an act which would have resulted in the death of Harrell except that someone prevented him from killing Harrell or he failed to do so, and (2) that the act was imminently dangerous to another and demonstrated a depraved mind without regard for human life. See Standard Jury Instructions in Criminal Cases, 697 So.2d 84, 90 (Fla.1997).

745 So.2d 954, 957 (Fla.1999). Accordingly, as explained in Brady, we conclude that the crime of attempted second-degree murder does exist in Florida. We approve the district court's decision in this case.

It is so ordered.

WELLS, C.J., and SHAW, LEWIS and QUINCE, JJ., concur.

HARDING, J., dissents with an opinion, in which ANSTEAD and PARIENTE, JJ., concur.

HARDING, J., dissenting.

I respectfully dissent. At least one appellate court has struggled over the issue of whether the crime of attempted second-degree murder exists in Florida. See Watkins v. State, 705 So.2d 938 (Fla. 5th DCA 1998). Two of the judges on that court wrote well-reasoned opinions arguing that both precedent and common sense require the judiciary to abolish the crime of attempted second-degree murder in Florida. After reviewing these opinions and considering the history of attempt law in this state, I believe the time has come to clarify the elements of the crime of attempt and conclude that the crime of attempted second-degree murder is logically impossible.

Florida's attempt statute provides:

A person who attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such offense, but fails in the perpetration or is intercepted or prevented in the execution thereof, commits the offense of criminal attempt, ranked for purposes of sentencing as provided in subsection (4).

§ 777.04(1), Fla. Stat. (1999). The jury instructions on attempt provide:

In order to prove that the defendant attempted to commit the crime of (crime charged), the State must prove the following beyond a reasonable doubt:
1. (Defendant) did some act toward committing the crime of (attempted crime) that went beyond just thinking or talking about it.
2. [He][She] would have committed the crime except that [someone prevented [him] [her] from committing the crime of (crime charged) or [[he] [she] failed.]

Fla. Std. Jury Instr. (Crim.) 77.

In Gentry v. State, this Court stated:

We have previously determined that despite the broad language of our attempt statute, there are certain crimes of which it can be said that the attempt thereof simply does not exist as an offense. Adams[ v. Murphy, 394 So.2d 411 (Fla.1981)]; State v. Thomas, 362 So.2d 1348 (Fla.1978). See also King v. State, 317 So.2d 852 (Fla. 1st DCA 1975). We now hold that there are offenses that may be successfully prosecuted as an attempt without proof of a specific intent to commit the relevant completed offense. The key to recognizing these crimes is to first determine whether the completed offense is a crime requiring specific intent or general intent. If the state is not required to show specific intent to successfully prosecute the completed crime, it will not be required to show specific intent to successfully prosecute an attempt to commit that crime. We believe there is logic in this approach and that it comports with legislative intent. Second-degree and third-degree murder under our statutes are crimes requiring only general intent.

437 So.2d 1097, 1098-99 (Fla.1983). I believe that the application of Gentry has proven more troublesome than beneficial.

"A specific intent, when an element of the mens rea of a particular offense, is some intent other than to do the actus reus thereof which is specifically required for guilt." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 851 (3d ed.1982). In contrast, "general intent" would simply be the intent required to do the actus reus of a particular offense. See id. Perkins cites to common law larceny and burglary as examples to illustrate specific intent. In addition to the intent to take and carry away the property of another, conviction for larceny required proof of an additional specific intent to steal. Similarly, conviction of common law burglary required not only an intentional breaking and entering, but also a specific intent to commit a felony therein.

According to the guidelines of Gentry, the crime of attempted second-degree murder is a general intent crime because the underlying crime, second-degree murder, is a general intent crime. Thus, under the current law, the State is not required to establish a specific intent to kill in order to prove the crime of attempted second-degree murder. In fact, if the underlying crime is a general intent crime, the State can prove an attempt of that crime without ever establishing that the defendant intended to commit the underlying offense. This is an absurd result. Further, an examination of our opinions subsequent to Gentry reveals that this Court has failed to consistently apply the Gentry test in cases involving attempts.

In Thomas v. State, this Court provided the following definition of attempt:

Essentially, we have required the state to prove two general elements to establish an attempt: a specific intent to commit a particular crime, and an overt act toward its commission. That is, the overt act must manifest the specific intent.

531 So.2d 708, 710 (Fla.1988). It would appear that this definition of attempt would make the crime a specific intent crime because the State would be required to establish that the defendant had a specific intent to commit the underlying offense. The Thomas court relied on the definition of attempt that was articulated by this Court in Gustine v. State, 86 Fla. 24, 26, 97 So. 207, 208 (1923). The Gustine definition of attempt had been the standard prior to Gentry. Arguably, Thomas can be reconciled with Gentry because the underlying offense in Thomas was burglary. Because burglary is a specific intent crime, see Richardson v. State, 723 So.2d 910, 911 (Fla. 1st DCA 1999), then, under Gentry, attempted burglary would also be classified as a specific intent crime, and the Thomas court relied on the proper definition of attempt.

However, in Rogers v. State, this Court again relied on the same definition of attempt: "To establish attempt, the State must prove a specific intent to commit a particular crime and an overt act toward the commission of that crime." 660 So.2d 237, 241 (Fla.1995). In Rogers, the underlying offense was sexual battery, which has been declared a general intent crime. See Buford v. State, 492 So.2d 355, 359 (Fla. 1986). Thus, the Rogers court classified attempted sexual battery as a specific intent crime, but according to the Gentry analysis, it should have been a general intent crime. In 1991 and again in 1993, this Court stated that attempted sexual battery was a general intent crime. See Sochor v. State, 580 So.2d 595, 601 (Fla. 1991), vacated on other grounds, 504 U.S. 527, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992); Sochor v. State, 619 So.2d 285, 290 (Fla.1993). But in 1997, this Court again cited to Rogers and stated that in order to prove attempted sexual battery, the State must prove "a specific intent to commit a particular crime." See Gudinas v. State, 693 So.2d 953, 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 quoted the following language from Justice Overton's dissent: "[A] conviction for the offense of attempt requires proof of the specific intent to commit the underlying crime." Gray, 654 So.2d at 553 (emphasis added).

Clearly, there is confusion in this area of the law. This Court has taken the Jekyll and Hyde approach to defining the crime of attempt: it has been classified as both a specific intent crime and a general intent crime, regardless of the...

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