Gibson v. State, 94-3311

CourtCourt of Appeal of Florida (US)
Citation667 So.2d 884
Docket NumberNo. 94-3311,94-3311
Parties21 Fla. L. Weekly D358 Michael GIBSON, Appellant, v. STATE of Florida, Appellee.
Decision Date06 February 1996

An appeal from the Circuit Court for Leon County. Nikki A. Clark, Judge.

Nancy A. Daniels, Public Defender; Steven A. Been, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General; Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.

MICKLE, Judge.

Michael E. Gibson, the appellant, was charged in an eight-count information with armed burglary of a dwelling (Count I), armed kidnapping (II), attempted first-degree felony murder (III), armed robbery (IV), and sexual battery with a deadly weapon (V through VIII). The jury found him not guilty of armed kidnapping and guilty as charged in Count I and Counts III through VIII. We affirm the judgment and sentence as to Count I and Counts IV through VIII. We reverse the conviction in Count III and remand with directions to dismiss that count and to conduct any further proceedings authorized pursuant to State v. Gray, 654 So.2d 552, 554 (Fla.1995), and State v. Grinage, 656 So.2d 457, 458 (Fla.1995), in which the Florida Supreme Court held that attempted felony murder is no longer a crime in Florida. Perea v. State, 657 So.2d 8, 9 (Fla. 3d DCA) (supplemental opinion in light of Gray, on state's motion for rehearing), rev. den., 663 So.2d 632 (Fla.1995). As to the matter of attempted first-degree felony murder and the available options, if any, upon remand, we certify the same question of great public importance raised in Alfonso v. State, 661 So.2d 308, 309 (Fla. 3d DCA) (on motion for rehearing and certification), cause dism., 665 So.2d 220 (Fla.1995).

In affirming the convictions in Count I and Counts IV through VIII, we have concluded that the trial court did not err when it overruled the defense's objection to the state's expert testimony about the statistical significance of a D.N.A. match. See Frye v. United States, 293 F. 1013 (D.C.Cir.1923) (to be admissible, novel scientific evidence must be generally acceptable within the relevant scientific community and found to be reliable); Ramirez v. State, 651 So.2d 1164 (Fla.1995) (setting forth a four-step test for determining the admissibility into evidence of expert testimony concerning a new or novel scientific principle); Flanagan v. State, 625 So.2d 827, 829 n. 2 (Fla.1993) (Florida adheres to the Frye test for admissibility of expert testimony relying on some scientific principle or test); Brim v. State, 654 So.2d 184 (Fla. 2nd DCA), rev. granted, 663 So.2d 629 (Fla. Oct. 26, 1995); Crews v. State, 644 So.2d 338 (Fla. 1st DCA 1994) (on motion for rehearing).

Like the defendant in Alfonso, the appellant was convicted of attempted first-degree felony murder. Neither Gray nor Grinage addressed whether, after a conviction for attempted felony murder is vacated, lesser-included offenses remain viable for a new trial or for a reduction of the offense. We recognize that this type of question will arise, and that conflicting results are likely to be reached, in the numerous other cases affected by Gray and Grinage. See, e.g., Selway v. State, 660 So.2d 1176 (Fla. 5th DCA 1995); ...

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6 cases
  • Clark v. State
    • United States
    • Court of Appeal of Florida (US)
    • August 21, 1996
    ...of the so-called "ceiling principle" reflected in a 1992 preliminary report of the National Research Council. Cf. Gibson v. State, 667 So.2d 884 (Fla. 1st DCA 1996), review granted 678 So.2d 339 (Fla.1996); Brim v. State, 654 So.2d 184 (Fla. 2d DCA 1995), review granted, 663 So.2d 629 (Fla.......
  • Jones v. State, 95-389
    • United States
    • Court of Appeal of Florida (US)
    • March 13, 1996
    ...mandatory minimum--five years for attempted third degree murder, and fifteen years for dealing in stolen property.2 See Gibson v. State, 667 So.2d 884 (Fla. 1st DCA 1996); Pratt v. State, 668 So.2d 1007 (Fla. 1st DCA 1996); Lee v. State, 664 So.2d 330 (Fla. 3d DCA 1995); Alfonso v. State, 6......
  • Riggins v. State, 95-1463
    • United States
    • Court of Appeal of Florida (US)
    • April 9, 1996
    ...OF THE CHARGED OFFENSE REMAIN VIABLE FOR A NEW TRIAL? See also Lee v. State, 670 So.2d 169 (Fla. 1st DCA 1996); Gibson v. State, 667 So.2d 884 (Fla. 1st DCA 1996); Gutierrez v. State, 665 So.2d 294 (Fla. 5th DCA 1995); Lee v. State, 664 So.2d 330 (Fla. 3d DCA 1995), review granted, 673 So.2......
  • Ellis v. State, 94-3648
    • United States
    • Court of Appeal of Florida (US)
    • June 19, 1996
    ...court, when a case is remanded after application of Gray to a conviction and sentence for attempted felony murder. See Gibson v. State, 667 So.2d 884 (Fla. 1st DCA 1996); Pratt v. State, 668 So.2d 1007 (Fla. 1st DCA 1996). In Pratt, the appellant was charged with attempted second-degree mur......
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