Freeman v. State

Decision Date18 September 1996
Docket NumberNo. 96-1437,96-1437
Citation679 So.2d 364
Parties21 Fla. L. Weekly D2056 Theodore FREEMAN, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Howard M. Zeidwig, Judge; L.T. Case No. 93-3960CF10C.

Theodore Freeman, Indiantown, pro se.

Robert A. Butterworth, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.

KLEIN, Judge.

Appellant pled guilty to first degree attempted felony murder and armed robbery with a firearm in 1993. After our supreme court held that attempted felony murder is not a crime in State v. Gray, 654 So.2d 552 (Fla.1995), he moved under rule 3.850 to set aside the conviction. The trial court summarily denied the motion, concluding that Gray would not be retroactive because of a statement in State v. Grinage, 656 So.2d 457, 458 (Fla.1995) to the effect that Gray would be applied to cases which were "pending on direct review or not yet final at the time of the Gray opinion."

After the trial court denied appellant's motion, the third district concluded that Gray was retroactive and granted relief under rule 3.850 in Woodley v. State, 673 So.2d 127 (Fla. 3d DCA 1996), applying the test for retroactivity set out in State v. Callaway, 658 So.2d 983 (Fla.1995).

In Callaway, our supreme court adhered to the three-prong test established for retroactivity under rule 3.850 set forth in Witt v. State, 387 So.2d 922 (Fla.), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980), stating:

Under Witt, a new rule of law may not be retroactively applied unless it satisfies three requirements. The new rule must (1) originate in either the United States Supreme Court or the Florida Supreme Court; (2) be constitutional in nature; and (3) have fundamental significance.

The Callaway court was confronted with the issue of whether Hale v. State, 630 So.2d 521 (Fla.1993), cert. denied, --- U.S. ----, 115 S.Ct. 278, 130 L.Ed.2d 195 (1994), was retroactive. In Hale the court had concluded that imposing consecutive habitual felony offender sentences for offenses arising out of the same criminal episode constituted an illegal sentence. The court concluded that Hale was retroactive because the imposition of the sentences, "in the absence of an empowering statute ... could not withstand a due process analysis," which met the second requirement of retroactivity, that the new rule be constitutional in nature. Callaway, 658 So.2d at 986.

We would have thought, as the third district did in Woodley, that since the Florida Supreme Court decided in Gray that attempted felony murder was not a crime, and since it is a denial of due process for a person to be convicted of a non-existent crime, that Gray would be retroactive. The Woodley court relied on State v. Sykes, 434 So.2d 325, 328 (Fla.1983), in which the Florida Supreme Court stated:

[O]ne cannot be punished based on a judgment of guilt of a purported crime when the "offense" in question does not exist. Stated differently, it is a fundamental matter of due process that the state may only punish one who has committed an offense; and an "offense" is an act clearly prohibited by the lawful authority of the state, providing notice through published laws. Only by legislative authority may a criminal offense be defined. (Citations omitted).

After Woodley, however, the Florida Supreme Court decided State v. Wilson, 680 So.2d 1262 (Fla.1996), in which the court was asked to determine whether a defendant whose attempted felony murder conviction is vacated can subsequently be convicted of lesser included offenses. In distinguishing cases on which defendant was relying, the court stated:

Wilson is correct in his assertion that those cases involved nonexistent offenses which were lesser included offenses of the principal charge in the charging document,...

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13 cases
  • Motes v. State, 96-2403
    • United States
    • Florida District Court of Appeals
    • 13 d5 Dezembro d5 1996
    ...applicable to judgments which were final when Gray was issued for purposes of making a timely collateral attack. See Freeman v. State, 679 So.2d 364 (Fla. 4th DCA 1996); Woodley v. State, 673 So.2d 127 (Fla. 3d DCA Recently, in State v. Wilson, 680 So.2d 411 (Fla.1996), the Florida Supreme ......
  • Alzamora v. State, 96-1380
    • United States
    • Florida District Court of Appeals
    • 21 d5 Março d5 1997
    ...became nonexistent when the decision in Gray was issued. See also Motes v. State, 684 So.2d 852 (Fla. 5th DCA 1996); Freeman v. State, 679 So.2d 364 (Fla. 4th DCA 1996). However, we certify the following question as one of great public WHETHER STATE V. GRAY, 654 So.2d 552 (Fla.1995), MUST B......
  • Sweeney v. State, 96-0461
    • United States
    • Florida District Court of Appeals
    • 27 d3 Novembro d3 1996
    ...which challenged his conviction for attempted felony murder based on State v. Gray, 654 So.2d 552 (Fla.1995). As in Freeman v. State, 679 So.2d 364 (Fla. 4th DCA 1996), we certify to the supreme court the following question as one of great public IS STATE V. GRAY, 654 So.2d 552 (FLA.1995), ......
  • Sugrim v. State, 96-0952
    • United States
    • Florida District Court of Appeals
    • 16 d3 Outubro d3 1996
    ...that appellant was not entitled to retroactive application of Gray. Based on the reasoning of our recent opinion in Freeman v. State, 679 So.2d 364 (Fla. 4th DCA 1996), we affirm the denial of appellant's rule 3.850 motion but again certify to the supreme court the same question certified i......
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