Coicou v. State, No. SC04-637 (Fla. 4/1/2010)
| Decision Date | 01 April 2010 |
| Docket Number | No. SC04-637.,SC04-637. |
| Parties | BLEKLEY COICOU, Petitioner/Cross-Respondent, v. STATE OF FLORIDA, Respondent/Cross-Petitioner. |
| Court | Florida Supreme Court |
Carlos J. Martinez, Public Defender, and Harvey J. Sepler, Assistant Public Defender, Eleventh Judicial Circuit, Miami, Florida, for Petitioner/Cross Respondent.
Bill McCollum, Attorney General, Tallahassee, Florida, Richard L. Polin, Bureau Chief, and Timothy R.M. Thomas, Assistant Attorneys General, Miami, Florida, for Respondent/Cross Petitioner.
This case is before the Court for review of the decision of the Third District Court of Appeal in Coicou v. State, 867 So. 2d 409 (Fla. 3d DCA 2003). In its decision the district court certified a question to this Court to be of great public importance. We have revised the question as follows:
MAY AN APPELLATE COURT DIRECT THE ENTRY OF A CONVICTION FOR ATTEMPTED SECOND-DEGREE MURDER WHERE THE JURY'S VERDICT DOES NOT REFLECT A FINDING THAT THE DEFENDANT ACTED WITH A DEPRAVED MIND?
Coicou v. State, No. 3D03-271 (Fla. 3d DCA Mar. 10, 2004) (). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons that follow, we answer the certified question in the negative. Because the jury did not determine that the defendant acted with a depraved mind, a required element of attempted second-degree murder, we quash the decision under review and remand the case for proceedings consistent with this opinion.
Coicou was charged with attempted first-degree felony murder for committing or attempting to commit a robbery against the victim and, as a separate act not an essential element of the robbery, shooting the victim in the chest. Coicou v. State, 867 So. 2d 409, 410 (Fla. 3d DCA 2003).1 Twice during the trial, defense counsel moved for a judgment of acquittal by arguing that there was no proof of the underlying felony, the robbery, and that the State did not prove the essential elements of attempted felony murder. The trial court denied both motions. Id. at 410-11. The jury convicted Coicou of attempted first-degree felony murder with a firearm. The jury specifically found that Coicou committed a robbery and used a firearm. Id. at 411. Defense counsel moved for a new trial, which the trial court denied. Id.
On appeal, Coicou argued that the trial court fundamentally erred by convicting him of attempted felony murder because the State used the same act, the shooting of the victim, to prove both the attempted felony murder and the underlying felony offense. Coicou, 867 So. 2d at 411. Thus, Coicou argued that Florida law prohibits a court from convicting a person of attempted felony murder using proof of an element essential to the underlying felony. Id. The Third District agreed and held that the trial court erred in denying Coicou's motion for judgment of acquittal. Id. at 412.
Additionally, Coicou argued that his conviction and sentence must be reversed and that he should be discharged because the State failed to prove one of the elements of attempted felony murder under section 782.051(1), Florida Statutes (2001). Coicou, 867 So. 2d at 412. The district court agreed that Coicou's conviction and sentence for attempted felony murder should be reversed. However, the court did not agree that Coicou should be discharged. Id. The court held that under section 924.34, Florida Statutes (2001), Coicou's conviction should be reduced to a permissive lesser-included offense, attempted second-degree murder. Id. In making this determination, the court relied on this Court's holding in I.T. v. State, 694 So. 2d 720 (Fla. 1997), which held that section 924.34 refers to both category one necessarily lesser-included offenses and category two permissive lesser-included offenses. Coicou, 867 So. 2d at 412. Additionally, the court reasoned that the evidence in the record supported a finding that Coicou acted in a manner that was imminently dangerous to the victim. Id. Thus, the evidence supported a conviction of the lesser-included offense of attempted second-degree murder. Id. (citing Mingo v. State, 680 So. 2d 1079 (Fla. 3d DCA 1996); Hayes v. State, 564 So. 2d 161, 163 (Fla. 2d DCA 1990)). The Third District remanded to the trial court with directions to enter a judgment of conviction for attempted second-degree murder. Id.
In response to Coicou's motion for certification, the Third District certified to this Court the following question as one of great public importance:
WHETHER ATTEMPTED SECOND-DEGREE MURDER IS A LESSER INCLUDED OFFENSE OF ATTEMPTED FELONY MURDER?
Coicou v. State, No. 3D03-271 (Fla. 3d DCA Mar. 10, 2004). We accepted jurisdiction to answer the certified question.
The question before this Court is whether the jury's verdict of guilty on the charge of attempted first-degree felony murder provided an adequate basis for directing—pursuant to section 924.34—the entry of a conviction for attempted second-degree murder. Because the certified question involves solely a legal determination based on undisputed facts, this Court's review is de novo. See Williams v. State, 957 So. 2d 595, 598 (Fla. 2007).
In Amlotte v. State, 456 So. 2d 448, 449 (Fla. 1984), we found that attempted felony murder was a common law offense in Florida. However, some years later in State v. Gray, 654 So. 2d 552, 552-53 (Fla. 1995), we receded from our holding in Amlotte. We reasoned that the "legal fictions required to support the intent for felony murder [were] simply too great" to extend to attempted felony murder. Gray, 654 So. 2d at 554. The Legislature in 1996, in response to our decision in Gray, enacted section 782.051, which created the offense of "Felony causing bodily injury." See ch. 96-359, § 1, at 2052, Laws of Fla. In 1998, the Legislature substantially rewrote section 782.051 and retitled it "Attempted felony murder." See ch. 98-204, § 12, at 1970, Laws of Fla.2 Thus, attempted felony murder is specifically provided for by statute.
Florida Rule of Criminal Procedure 3.510, entitled "Determination of Attempts and Lesser Included Offenses," provides the following:
On an indictment or information on which the defendant is to be tried for any offense the jury may convict the defendant of:
. . . .
(b) any offense that as a matter of law is a necessarily included offense or a lesser included offense of the offense charged in the indictment or information and is supported by the evidence. The judge shall not instruct on any lesser included offense as to which there is no evidence.
In Sanders v. State, 944 So. 2d 203 (Fla. 2006), we defined and explained the distinction between necessarily and permissive lesser-included offenses:
Lesser included offenses fall into two categories: necessary and permissive. Necessarily lesser included offenses are those offenses in which the statutory elements of the lesser included offense are always subsumed within those of the charged offense. State v. Paul, 934 So. 2d 1167, 1176 (Fla. 2006). A permissive lesser included offense exists when "the two offenses appear to be separate [on the face of the statutes], but the facts alleged in the accusatory pleadings are such that the lesser [included] offense cannot help but be perpetrated once the greater offense has been." State v. Weller, 590 So. 2d 923, 925 n.2 (Fla. 1991).
Sanders, 944 So. 2d at 206 (alterations in original).
In this case the Third District found that attempted second-degree murder is a permissive lesser-included offense of attempted felony murder. In determining whether attempted second-degree murder is a permissive lesser-included offense of attempted felony murder, "the pertinent inquiry is whether the greater crime may be charged in a manner encompassing the lesser." Williams, 957 So. 2d at 598.
The crime of attempted felony murder is codified in section 782.051, Florida Statutes (2001). Section 782.051(1) provides:
Any person who perpetrates or attempts to perpetrate any felony enumerated in s. 782.04(3) and who commits, aids, or abets an intentional act that is not an essential element of the felony and that could, but does not, cause the death of another commits a felony of the first degree . . . .
The crime of attempted second-degree murder is codified in section 777.04(1), Florida Statutes (2001), defining attempt, and section 782.04(2), Florida Statutes (2001), defining second-degree murder. See State v. Florida, 894 So. 2d 941, 945 (Fla. 2005), overruled in part by Valdes v. State, 3 So. 3d 1067 (Fla. 2009). As we explained in Florida, attempted second-degree murder has two elements: "(1) the defendant intentionally committed an act that could have resulted, but did not result, in the death of someone, and (2) the act was imminently dangerous to another and demonstrated a depraved mind without regard for human life." Id. at 945-46 (citing Brown v. State, 790 So. 2d 389, 390 (Fla. 2000); State v. Brady, 745 So. 2d 954, 957 (Fla. 1999)). "Use of a firearm is a third element that increases the penalty for the crime." Id. at 946.
Attempted second-degree murder and attempted first-degree felony murder appear to be separate on the face of the statutes because each crime contains an element that the other does not. Attempted first-degree felony murder requires that the act be committed during the course of committing a felony. See § 782.051. Attempted second-degree murder requires that the perpetrator's act be "imminently dangerous to another and evincing a depraved mind regardless of human life," § 782.04(2). In order to find attempted second-degree murder a permissive lesser included offense of attempted first-degree felony murder, the facts alleged in the accusatory pleadings must be such that the lesser-included offense cannot help but be...
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