Campbell v. State
| Decision Date | 17 April 1996 |
| Docket Number | No. 95-0598,95-0598 |
| Parties | 21 Fla. L. Weekly D929 Timothy CAMPBELL, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Dwight L. Geiger, Judge. L.T. Case No. 94-749CF.
Richard L. Jorandby, Public Defender, and Ellen Morris, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Sharon A. Wood, Assistant Attorney General, West Palm Beach, for appellee.
Appellant, Timothy Campbell, was tried by jury and convicted of attempted first degree murder with a firearm, robbery with a deadly weapon, and aggravated battery upon a person aged sixty-five or older. Because the record suggests that Campbell may have been convicted of the non-existent crime of attempted felony murder, we reverse Campbell's conviction for attempted first degree murder and remand for a new trial.
At trial, the state relied upon dual theories of murder: attempted premeditated murder and attempted felony murder. Both theories were raised during closing argument and the trial court instructed the jury on both theories as well. Recently our Supreme Court receded from its decision in Amlotte v. State, 456 So.2d 448 (Fla.1984), and determined that there is no such crime as the offense of attempted felony murder in Florida. State v. Gray, 654 So.2d 552 (Fla.1995). In so ruling, the court mandated that its decision must be applied to all cases pending on direct review or not yet final. Id. at 554. Because the state relied upon the attempted felony murder theory at trial, there is a chance the jury convicted Campbell based upon that theory.
Although the state recognizes the potential impact of Gray, the state asserts that appellant failed to object to the instruction below, and therefore this court must apply a fundamental error analysis to the case. We agree that the absence of an objection requires a fundamental error analysis, but we have no difficulty in arriving at the conclusion that it is fundamental error for a defendant to be convicted of a non-existent crime. See Williamson v. State, 510 So.2d 335 (Fla. 4th DCA 1987).
On the record before us, we cannot conclude beyond a reasonable doubt that the jury did not find Campbell guilty of attempted first degree murder based on the attempted felony murder instruction given by the trial court; therefore,...
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Kaplan v. State, 95-1118
...victim either by premeditation or during commission of a felony, and jury simply found defendant guilty as charged.); Campbell v. State, 671 So.2d 876 (Fla. 4th DCA 1996) (defendant convicted of attempted first degree murder based on either attempted felony murder or attempted premeditated ......
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Spencer v. State
...did not need to preserve this issue in order to argue on appeal that he was convicted of a nonexistent crime. See Campbell v. State, 671 So.2d 876, 877 (Fla. 4th DCA 1996); Tape v. State, 661 So.2d 1287, 1289 (Fla. 4th DCA The state maintains that any error was harmless because the evidence......
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Moran v. State, 4D01-3911.
...255 (Fla. 4th DCA 2002) (stating that an error significant enough to be considered fundamental cannot be harmless); Campbell v. State, 671 So.2d 876 (Fla. 4th DCA 1996). In sum, I would reverse the denial of the judgment of ...
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State v. Brady, 96-627
...impossible to determine on which theory the jury convicted. See Humphries v. State, 676 So.2d 1 (Fla. 5th DCA 1995); Campbell v. State, 671 So.2d 876 (Fla. 4th DCA 1996). In Taylor, the court stated that there may be a verdict for attempted manslaughter if there is proof that the defendant ......