Gutierrez v. State, 95-132

CourtCourt of Appeal of Florida (US)
Citation665 So.2d 294
Docket NumberNo. 95-132,95-132
Parties20 Fla. L. Weekly D2683 George L. GUTIERREZ, Appellant, v. STATE of Florida, Appellee.
Decision Date08 December 1995

James B. Gibson, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Ann M. Childs, Assistant Attorney General, Daytona Beach, for Appellee.

HARRIS, Judge.

Appellant, George L. Gutierrez, timely appeals from his judgment and sentence.

Gutierrez was arrested following a shooting incident in Orange County. At the time of the incident he was living with Dianne Buchannan and her son, Chad Buchannan. Gutierrez and Dianne argued; Chad got between them to break up the fight. Gutierrez then went into his bedroom and shut the door. As Chad walked down the hall near the bedroom door, Gutierrez opened the door with a gun in his hand. He and Chad struggled. The gun went off and a bullet struck Chad.

Gutierrez was charged with aggravated battery with a firearm (Count 1), aggravated assault with a firearm (Count 2), shooting into a building (Count 3), and attempted second-degree murder with a firearm (Count 4). At the close of the state's case, the defense moved for judgment of acquittal, arguing that the state had not made a prima facie case on any of the charges. The motion was denied. Gutierrez then testified on his own behalf that the shooting was a matter of self-defense. He was acquitted on the assault charge (Count 2); he was found guilty of aggravated battery with a firearm (Count 1), shooting into a building (Count 3), and the lesser included offense of attempted third degree murder (Count 4).

Appellant argues first that his conviction for attempted third degree murder must be vacated on the basis of State v. Gray, 654 So.2d 552 (Fla.1995). The state concedes error and asks this court to direct the trial court upon remand to enter a judgment for the lesser included offense listed on the verdict form.

We agree that Gray requires a reversal of the conviction of attempted third degree murder. Concerning the state's argument that appellant's conviction should be reduced to a lesser included offense, we agree with Alfonso v. State, 661 So.2d 308 (Fla. 3d DCA 1995), that there can be no lesser included offense to a nonexistent crime. See also, Wilson v. State, 660 So.2d 1067 (Fla. 3d DCA 1995), rehearing denied, certification granted, 20 Fla.L.Weekly D2248 (Fla. 3d DCA) (trial court instructed to reverse and vacate conviction and sentence for attempted felony murder; court would not find that lesser included offenses could exist for nonexistent crime). See also, Valladares v. State, 658 So.2d 626 (Fla. 5th DCA 1995) (defendant's conviction for nonexistent crime...

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4 cases
  • Kaplan v. State, 95-1118
    • United States
    • Court of Appeal of Florida (US)
    • 20 Septiembre 1996
    ...2 See State v. Miller, 660 So.2d 272 (Fla.1995). 3 See State v. Wilson, 680 So.2d 411 (Fla. 1996). 4 See also Gutierrez, v. State, 665 So.2d 294 (Fla. 5th DCA 1995) (court simply reversed conviction for attempted third degree murder as a non-existent crime); Selway v. State, 660 So.2d 1176 ......
  • Riggins v. State, 95-1463
    • United States
    • Court of Appeal of Florida (US)
    • 9 Abril 1996
    ...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.2d 30 (Fla.1996); Alfonso v. State, 661 So.2d 30......
  • State v. Brady, 96-627
    • United States
    • Court of Appeal of Florida (US)
    • 3 Enero 1997
    ...the charge which was dismissed in this case. REVERSED and REMANDED. COBB and THOMPSON, JJ., concur. --------------- 1 Gutierrez v. State, 665 So.2d 294 (Fla. 5th DCA...
  • Jones v. State, 98-3278
    • United States
    • Court of Appeal of Florida (US)
    • 6 Enero 1999 request jury instructions on lesser degrees of murder. Attempted third degree murder is a nonexistent crime. Gutierrez v. State, 665 So.2d 294 (Fla. 5th DCA 1995). The only issue is whether appellant could have been found guilty of attempted second degree The statute criminalizing attemp......

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