Miller v. State, 96-949

Decision Date14 August 1996
Docket NumberNo. 96-949,96-949
Citation678 So.2d 465
Parties21 Fla. L. Weekly D1863 Johnny MILLER, Appellant, v. The STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Bennett H. Brummer, Public Defender and Craig J. Trocino, Assistant Public Defender, for appellant.

Robert A. Butterworth, Attorney General and Sylvie Perez Posner, Assistant Attorney General, for appellee.

Before SCHWARTZ, C.J., and JORGENSON and GODERICH, JJ.

ON MOTION FOR REHEARING

SCHWARTZ, Chief Judge.

In 1992, Miller pled nolo to, among other charges, two counts of attempted first degree murder. Both counts alleged alternative claims of attempted premeditated murder and attempted felony murder. Relying on State v. Gray, 654 So.2d 552 (Fla.1995), Woodley v. State, 673 So.2d 127 (Fla. 3d DCA 1996) and Brown v. State, --- So.2d ---- (Fla. 3d DCA Case no. 95-3401, opinion filed, June 5, 1996), the defendant now seeks 3.850 relief from those convictions. We affirm the denial of his motion on that ground.

Even if we may indulge the very dubious assumption that Woodley and Brown survive the Supreme Court's recent treatment of Gray in State v. Wilson, 679 So.2d 411 (Fla.1996), reversal is not in order. In a similar situation, Brown ordered a hearing to determine whether there was a factual basis for the supportable charge of attempted premeditated murder, as opposed or in addition to the supposedly "non-existent" crime of attempted felony murder. In this case, however, the factual stipulation and other matters of record already and clearly make out a case of attempted premeditated murder. See Bello v. State, 547 So.2d 914 (Fla.1989). See generally Suarez v. State, 616 So.2d 1067 (Fla. 3d DCA 1993). Hence, no purpose will be served by a remand.

Affirmed.

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8 cases
  • Motes v. State, 96-2403
    • United States
    • Florida District Court of Appeals
    • 13 Diciembre 1996
    ...application of Gray to collateral attacks on a judgment which was final when Gray was rendered. See Freeman; Miller v. State, 678 So.2d 465 (Fla. 3d DCA 1996). Accordingly, we affirm but we join our sister courts in certifying the following question to the Florida Supreme Court: SHOULD THE ......
  • James v. State, 97-2552
    • United States
    • Florida District Court of Appeals
    • 1 Octubre 1997
    ...No appearance required for appellee. PER CURIAM. Affirmed. Glinton v. State, 685 So.2d 1375 (Fla. 3d DCA 1996); Miller v. State, 678 So.2d 465, 466 (Fla. 3d DCA 1996); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 STONE, C.J., and FARMER and PARIENTE, JJ., concur. ...
  • Freeman v. State
    • United States
    • Florida District Court of Appeals
    • 18 Septiembre 1996
    ...The third district, which decided Woodley, has also noted that Wilson casts doubt on the retroactivity of Gray. See Miller v. State, 678 So.2d 465 (Fla. 3d DCA 1996). We therefore affirm the order denying the rule 3.850 motion, but certify the following question as one of great public IS ST......
  • Hazelton v. State, 3D06-792.
    • United States
    • Florida District Court of Appeals
    • 29 Noviembre 2006
    ...is still not illegal because it supports the charge of 1st degree murder and attempted premeditated felony murder. Miller v. State, 678 So.2d 465 (Fla. 3d DCA 1996). Defendant also asserts that in not applying the Gray decision retroactively, his Due Process Rights have been violated, in ac......
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