Pratt v. State, 94-1432

• Court: Court of Appeal of Florida (US)
• Writing for the Court: MICKLE
• Citation: 668 So.2d 1007
• Parties: 21 Fla. L. Weekly D311 Arnold Leon PRATT, Jr., Appellant, v. STATE of Florida, Appellee.
• Docket Number: No. 94-1432,94-1432
• Decision Date: 31 January 1996

Page 1007

668 So.2d 1007 21 Fla. L. Weekly D311 Arnold Leon PRATT, Jr., Appellant,
v.
STATE of Florida, Appellee. No. 94-1432. District Court of Appeal of Florida,
First District. Jan. 31, 1996.
Rehearing Denied March 18, 1996.

An appeal from the Circuit Court for Okaloosa County; Jack Heflin, Judge.

Nancy A. Daniels, Public Defender; Jamie Spivey, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General; Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Appellee.

MICKLE, Judge.

Arnold L. Pratt, Jr., the appellant, challenges his conviction for attempted third-degree (felony) murder. We reverse this conviction on the authority of State v. Gray, 654 So.2d 552, 553-54 (Fla.1995), which holds that attempted felony murder is no longer a criminal offense in Florida. State v. Grinage, 656 So.2d 457 (Fla.1995); Selway v. State, 660 So.2d 1176 (Fla. 5th DCA 1995); Williams v. State, 657 So.2d 80 (Fla. 1st DCA 1995) (reversing conviction pursuant to Gray and remanding for "further proceedings"). We remand the case for further proceedings consistent with Gray. Because the Florida Supreme Court in Gray and Grinage did not address specifically the nature and scope of options available to the trial court and to the state upon remand, we certify two questions as being of great public importance.

The appellant was charged with attempted second-degree murder with a weapon upon a law enforcement officer pursuant to sections 782.04(2), 784.07(3), 775.0825, and 777.04(1), Florida Statutes (1991). The record demonstrates unequivocally that the charge arose from a violent, dangerous, and potentially deadly incident perpetrated by the appellant. The state adduced the following evidence.

In September 1987, after being tipped off that a car theft would occur, law enforcement authorities secretly observed the appellant's brother unlawfully breaking into a Porsche in Fort Walton Beach. After driving his brother to the neighborhood where the crime occurred, the appellant had waited nearby in a pickup truck and served as a lookout. As the

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officers surrounded and tried to arrest his brother, the appellant rounded the corner, accelerated the engine, and aimed the truck in the direction of the officers. The appellant entered the driveway where the Porsche was parked and struck Okaloosa County Deputy Sheriff Joe Nelson in the shoulder and nearly hit two other officers. Deputy Nelson was thrown aside into a parked vehicle and was injured by the impact of the accelerating truck.

The appellant's brother was pinned underneath the pickup truck and was dragged to the end of the street, where the authorities had established a roadblock. The brother sustained serious injuries. The testimony of the numerous officers who were present at the time of the offense is consistent with this rendition of events. The appellant admitted driving in the direction of the officers, but he claimed that he merely wanted to assist his brother who, the appellant hoped, would jump aboard the moving truck without injury to anyone.

The state concedes that Gray requires a reversal of the conviction for attempted felony murder, but the parties disagree as to the appropriate procedure to follow after reversal. The appellant contends that the proper remedy is 1) to dismiss the cause for all time or, alternatively, 2) to remand for resentencing with instructions to enter judgment for aggravated battery, which is a Category 2 permissively included lesser offense of the charged offense.

On the other hand, the state argues that we should direct the trial court to enter judgment for attempted manslaughter, which is a Category 1 necessarily included lesser offense of the charged crime....