Gray v. State

• Decision Date: 10 May 1994
• Docket Number: No. 93-763,93-763
• Citation: 654 So.2d 934
• Parties: 19 Fla. L. Weekly D1039 Collin GRAY, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 934

654 So.2d 934

19 Fla. L. Weekly D1039

Collin GRAY, Appellant, v. The STATE of Florida, Appellee.

No. 93-763.

District Court of Appeal of Florida,

Third District.

May 10, 1994.

Bennett H. Brummer, Public Defender, and Rafael Rodriguez, Sp. Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Richard L. Polin, Asst. Atty. Gen., and Keith S. Kromash, Certified Legal Intern, for appellee.

Before SCHWARTZ, C.J., and BASKIN and LEVY, JJ.

PER CURIAM.

Collin Gray appeals judgments of conviction for attempted first degree felony murder and armed robbery. We affirm the robbery conviction, reverse the attempted first degree murder conviction, and remand for resentencing.

Gray and two codefendants participated in the robbery of a store clerk. Defendants fled the scene in a vehicle. During the ensuing high-speed police chase, defendant's vehicle proceeded through a red light and collided with another vehicle resulting in serious injury to the passenger. Defendant was charged with armed robbery and attempted first degree murder of the passenger. The information charged that "COLLIN GRAY ... did unlawfully and feloniously attempt to commit a felony, to wit: MURDER IN THE FIRST DEGREE, upon JEROME PASSMORE, and in furtherance thereof, the defendant[ ] COLLIN GRAY, ... while being engaged in the perpetration of, or in an attempt to perpetrate: ROBBERY, attempt to kill JEROME PASSMORE, a human being and in such attempt did Collide with the car of JEROME PASSMORE after committing an ARMED ROBBERY, in violation of s. 782.04(1) and s. 777.04, Fla.Stats....." The jury found defendant guilty as charged. On appeal, defendant raises several issues; however, only his contention that the trial court erred in denying his motion for judgment of acquittal of the attempted felony murder merits discussion and reversal.

In Amlotte v. State, 456 So.2d 448, 449 (Fla.1984), the supreme court recognized the existence of the crime of attempted felony murder and set forth its elements stating that "[t]he essential elements of the crime are the perpetration of or the attempt to perpetrate an enumerated felony, together with an intentional overt act, or the aiding or abetting of such an act, which could, but does not cause the death of another." See Fleming v. State, 374 So.2d 954 (Fla.1979). Recognizing that attempt is a specific intent crime, the court held that the specific intent to kill is presumed if defendant commits, or aids or abets the commission of a specific overt, but ineffectual, act during the perpetration or attempt to perpetrate an enumerated felony. Amlotte, 456 So.2d at 449-450. "Because the attempt occurs during the commission of a felony, the law, as under the felony murder doctrine, presumes the existence of the specific intent required to prove attempt." Amlotte, 456 So.2d at 450.

Here, defendant does not dispute that he perpetrated an enumerated felony--robbery. However, he correctly contends that the information does not allege and the state did not present proof of a separate overt act which could, but did not, cause another's death. ¹ The information alleged that defendant's car collided with the victim's car and the state presented evidence that during the high-speed police chase defendant's car proceeded through a red light and struck the victim's car. The running of the red light and the resulting collision do not constitute overt acts reasonably understood to result in a person's death. Thus, we conclude that there was insufficient evidence to present a jury question concerning whether the acts committed against the victim could have caused his death. Cf. Fleming, 374 So.2d at 956 ("[w]here the alleged 'attempt' occurs during the commission...