Lamb v. State, 94-01748

Decision Date21 February 1996
Docket NumberNo. 94-01748,94-01748
Parties21 Fla. L. Weekly D515 Jesse Ivan LAMB, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Appeal from the Circuit Court for Polk County; Joe R. Young, Jr. and Daniel True Andrews, Judges.

James Marion Moorman, Public Defender and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee and Scott A. Browne, Assistant Attorney General, Tampa, for Appellee.

RYDER, Acting Chief Judge.

Jesse Lamb challenges the trial court's final judgment and sentence adjudicating him guilty of attempted murder of a law enforcement officer, carrying a concealed firearm and discharging a firearm from a vehicle. We are compelled to reverse the conviction for attempted murder because of the supreme court's decision in State v. Gray, 654 So.2d 552 (Fla.1995), and we also reverse the conviction for carrying a concealed weapon. We affirm without discussion the conviction for discharging a firearm.

The appellant was charged by second amended information with Count I, attempted murder of a law enforcement officer in violation of sections 775.0825, 777.04, 782.04 and 784.07, Florida Statutes (1993), Count II, carrying a concealed weapon in violation of section 790.01, Florida Statutes (1993), and Count III, discharging a firearm from a vehicle in violation of section 790.15, Florida Statutes (1993). Count I charged that the attempted murder was committed by an act evincing a depraved mind; alternatively, it alleged that the attempted murder was committed while engaged in the perpetration of aggravated assault.

At the jury trial, the appellant testified that he was driving to his niece's home when some young men approached his car and offered to sell him cocaine. He declined and drove around the block, still looking for his niece's residence. He was again approached by the young men and they argued. One man punched him, cutting him on his nose and above his right eye. Blinded by the blood in his right eye and legally blind in his left eye, he backed his car down the road and came to a stop as his wheels hit the curb. He saw people approaching his car in the mirror and withdrew his gun from the glove compartment, loaded it and fired the gun in the air. The young men ran away. As he started the car and drove up the road, a person ran up, yelled something, and then fired two shots at him. The appellant testified that he did not shoot at this person and did not know he was a policeman. The appellant was shot in his right arm.

Officer Hill was cruising the area when he received a BOLO that provided him with a vague vehicle description and an occupant description. When he noticed the appellant's vehicle, he was without backup and merely followed him. His observations confirmed that the appellant was the suspect. He followed him at routine speed and radioed other units, but did not activate his overhead lights.

The appellant eventually drove to his home. When he arrived, he removed the firearm from the front seat and placed it beneath the vehicle's driver's seat. Earlier, the unloaded firearm had been in his glove compartment. He then exited and locked the automobile and walked toward his home. The officer pulled up nearby and continued to observe him. However, because the appellant had earlier loaned his house key to his uncle, he was unable to enter. The officer lost sight of him for about thirty seconds, and when the appellant reappeared, he was nonchalantly walking out of his carport. No other units had yet arrived, and Officer Hill, concerned that he might be armed, ordered him to raise his hands and handcuffed him. Shortly thereafter, other officers arrived, took him into custody and transported him to the hospital for medical treatment. Later that evening, sheriff's deputies returned with the appellant to his home and inquired about the location of his firearm. He told them it was under the driver's seat of his automobile. A crime scene technician then examined the vehicle and seized the firearm.

The court instructed the jury as to Count I on attempted second degree murder (depraved mind) and attempted third degree murder (felony murder) and lesser included offenses. The jury found the appellant guilty as charged. Because both attempted second degree murder and attempted third degree murder were charged in the same count, and the record does not otherwise show that he was convicted of attempted second degree murder, we cannot determine upon which offense the jury convicted him.

The State of Florida no longer recognizes the crime of attempted felony murder. State v....

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13 cases
  • Wallace v. State
    • United States
    • Florida District Court of Appeals
    • 27 Julio 2007
    ...had violated or was violating section 790.01(2). See Gehring v. State, 937 So.2d 169, 170-71 (Fla. 2d DCA 2006); Lamb v. State, 668 So.2d 666, 667-68 (Fla. 2d DCA 1996); White v. State, 902 So.2d 887, 888 (Fla. 1st DCA 2005). Additionally, the police did not know that Mr. Wallace was a conv......
  • U.S.A v. Alexander
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 25 Junio 2010
    ...State, 931 So.2d 231, 235 (Fla. 5th DCA 2006) (same); Luciano v. State, 12 So.3d 917, 918 (Fla. 5th DCA 2009) (same); Lamb v. State, 668 So.2d 666, 666 (Fla. 2d DCA 1996) (discharging a firearm from a vehicle at a police Hall v. State, 661 So.2d 63, 63 (Fla. 2d DCA 1995) (guilty plea to att......
  • Allen v. State
    • United States
    • Florida District Court of Appeals
    • 28 Junio 1996
    ...v. Garcia, 938 F.2d 12 (2d Cir.1991), cert. denied, 502 U.S. 1030, 112 S.Ct. 868, 116 L.Ed.2d 774 (1992); see also Lamb v. State, 668 So.2d 666 (Fla. 2d DCA 1996); Humphries v. State, 676 So.2d 1 (Fla. 5th DCA 1995); Thompson v. State, 667 So.2d 470 (Fla. 3d DCA 1996); Tape v. State, 661 So......
  • Mosely v. State, 95-1365
    • United States
    • Florida District Court of Appeals
    • 30 Octubre 1996
    ...does not exist, the error is fundamental and is per se reversible, and the case must be remanded for retrial. See, e.g., Lamb v. State, 668 So.2d 666 (Fla. 2d DCA 1996); Tape v. State, 661 So.2d 1287 (Fla. 4th DCA 1995); Humphries v. State, 676 So.2d 1 (Fla. 5th DCA Because our holding reso......
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