McLaughlin v. State, 96-643
| Decision Date | 29 July 1997 |
| Docket Number | No. 96-643,96-643 |
| Citation | 700 So.2d 392 |
| Parties | 22 Fla. L. Weekly D1836 Frederick Wayne McLAUGHLIN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
T. Martin Knopes, Crestview, for Appellant.
Robert A. Butterworth, Attorney General; Trisha E. Meggs, Assistant Attorney General, Tallahassee, for Appellee.
Frederick Wayne McLaughlin, the defendant, appeals his convictions for second degree murder, attempted third degree murder with a firearm, and shooting a firearm from a vehicle. We affirm his convictions for second degree murder and shooting from a vehicle but vacate his conviction for attempted third degree murder. Attempted third degree murder is a form of attempted felony murder which is no longer a crime in Florida. See State v. Gray, 654 So.2d 552 (Fla.1995). Although the defendant's conviction for this crime must be vacated, the state may retry the defendant on any lesser included offenses in the instructions given at trial. See State v. Wilson, 680 So.2d 411 (Fla.1996).
The defendant also alleges that his sentencing scoresheet incorrectly included two points for a no valid driver's license offense which was not supported by the evidence. We agree that this was error. Because the defendant's invalid conviction for attempted third degree murder was included in the overall computation under the sentencing guidelines, we must vacate all of the defendant's sentences. At resentencing, the error in scoring the no valid driver's license charge can be corrected.
Affirmed in part and reversed in part.
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Harkness v. State, 1D99-4665.
...third-degree felony murder is a non-existent crime in Florida. See State v. Gray, 654 So.2d 552 (Fla. 1995); McLaughlin v. State, 700 So.2d 392 (Fla. 1st DCA 1997). Conviction of a nonexistent crime is fundamental error which requires reversal, regardless of whether the error was invited by......