Johnson v. State, 85-850
| Decision Date | 09 April 1986 |
| Docket Number | No. 85-850,85-850 |
| Citation | 486 So.2d 657,11 Fla. L. Weekly 834 |
| Parties | 11 Fla. L. Weekly 834 Guy Randall JOHNSON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
This is a belated appeal, pursuant to this court's grant of a petition for writ of habeas corpus, of judgment and sentence in a criminal case tried to a jury. We affirm the judgment and sentence, except as to the assessment of costs on the judgment form, which we strike.
Together with Carlos Roberts Arevalo, appellant/defendant Guy Randall Johnson was indicted on one count of first degree murder of Lennie Volf and one count of attempted first degree murder, of Volf's girlfriend Sharon Ann Jones. Appellant's motions for judgment of acquittal at the close of the state's case and at the close of all the evidence were denied. The jury found Johnson guilty as charged on each count and he was so adjudicated. The trial court sentenced him to the mandatory minimum sentence of twenty-five years for the attempted murder, to be served concurrently.
Two issues, restated, in our view bear discussion:
I. Whether the trial court erred when it denied appellant's judgment of acquittal on the attempted murder charge, because the evidence failed to show the appellant aided or abetted a specific overt act during the commission of the felony that could have caused death. We conclude it did not.
II. Whether the printed statement on the judgment form, imposing costs, should be stricken. We conclude that it should.
Appellant contends that his timely motions, at the close of the state's case and at the close of all the evidence, for entry of judgment of acquittal, should have been granted on the ground that the evidence against him was legally insufficient to convict him on the second count, attempted first degree murder. Appellant points out that the Florida Supreme Court has defined attempted felony murder as an individual's committing, aiding or abetting a specific overt act which could but does not cause another's death, while the individual is perpetrating or attempting to perpetrate one of the enumerated felonies. Amlotte v. State, 456 So.2d 448, 449-50 (Fla.1984). Appellant argues that the only possible theory on which he could be charged with attempted first degree murder of Sharon Jones was attempted felony murder; yet Ms. Jones did not give testimony as to any overt act, that appellant committed, aided or abetted, towards her murder, and appellant's case tended to show that he was no longer present when Arevalo attacked Ms. Jones. Appellant further contends there was no evidence of premeditation of Johnson as regards Ms. Jones; any premeditation by Arevalo could not be imputed to Johnson, and there was no evidence of any preexisting plan to commit any felony of any kind against Ms. Jones.
The state contends that appellant's present line of argument was never presented to the trial court and is therefore not preserved for appeal. E.g., Sapp v. State, 411 So.2d 363 (Fla. 4th DCA 1982) (). In the instant case we do not see in the record of the trial proceedings any of the contentions made respecting his motion for judgment of acquittal on the attempted murder charge. Accordingly, he failed to preserve this issue for appeal.
Even if the issue were to be considered, appellant reads the law stated in Amlotte much too narrowly. Amlotte concerns, of course, attempted felony murder only, and not attempted premeditated murder. When the Florida Supreme Court in Amlotte speaks of the person's committing an overt act or aiding or abetting such an act during the commission of an enumerated felony, the word during does not refer narrowly to the time, in this case, when Volf was being murdered, or when something was removed from the premises, if the underlying offense was a robbery.
In State v. Wright, 379 So.2d 96 (Fla.1979), the...
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