Spencer v. State, 94-2992

CourtCourt of Appeal of Florida (US)
Writing for the CourtPER CURIAM; PER CURIAM
Citation693 So.2d 1001
Parties22 Fla. L. Weekly D1033, 22 Fla. L. Weekly D589 Leonard SPENCER, Appellant, v. STATE of Florida, Appellee.
Docket NumberNo. 94-2992,94-2992
Decision Date05 March 1997

Page 1001

693 So.2d 1001
22 Fla. L. Weekly D1033, 22 Fla. L. Weekly D589
Leonard SPENCER, Appellant,
STATE of Florida, Appellee.
No. 94-2992.
District Court of Appeal of Florida,
Fourth District.
March 5, 1997.
Order Denying Rehearing
April 23, 1997.

Charles W. Musgrove, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, Michelle A. Konig and Sarah B. Mayer, Assistant Attorneys General, West Palm Beach, for appellee.


This is an appeal from numerous convictions involving several victims: two counts of first-degree murder with a firearm; four counts of robbery with a firearm; and one count of attempted first-degree murder with a firearm. We affirm all of the convictions except the last above-mentioned, which we reverse and remand for a new trial on attempted first-degree premeditated murder.

This appeal arises from the fourth trial in this case. The first trial's convictions and resulting death sentence of appellant were reversed due to a special districting jury selection process that resulted in unconstitutional systematic exclusion of a significant portion of the black population from the jury pool. Spencer v. State, 545 So.2d 1352 (Fla.1989). The second trial ended in mistrial due to a hung jury. The third trial's convictions and resulting death sentence were reversed because the trial judge sua sponte excluded jurors with alleged low IQ's and because of an ex parte communication during the sentencing proceedings. Spencer v. State, 615 So.2d 688 (Fla.1993), limited by Armstrong v. State, 642 So.2d 730 (Fla.1994). Upon the convictions in his fourth trial, which is the subject of this appeal, appellant was sentenced to life imprisonment.

While appellant raises issues directed at all of his convictions, argument only as to the last issue is persuasive, and it is that which we address.

Page 1002

Appellant's conviction for attempted first-degree murder regarded the shooting of Terry Howard in a convenience store during the initial robbery. The jury was instructed on both attempted first-degree premeditated murder and attempted first-degree felony murder; and the state argued both theories to the jury.

As both parties agree, the crime of attempted first-degree felony murder no longer exists in Florida. State v. Gray, 654 So.2d 552 (Fla.1995). Gray is applicable to the immediate case because the supreme court specifically stated that its decision would apply to cases pending on direct...

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5 cases
  • Mackey v. State, 96-1421
    • United States
    • Court of Appeal of Florida (US)
    • December 24, 1997
    ...blunt trauma issue despite the conflicting experts' testimony rather than the evidence per se of defendant's guilt. See Spencer v. State, 693 So.2d 1001, 1002 (Fla. 4th DCA)(on rehearing), review denied, 698 So.2d 1225 (Fla.1997); see also Kirkland v. State, 684 So.2d 732 (Fla.1996)(where t......
  • Tricarico v. State, s. 97-1694
    • United States
    • Court of Appeal of Florida (US)
    • May 27, 1998
    ...theories, the verdict failed to state on which ground the jury relied, and the alternative crime did not exist. In Spencer v. State, 693 So.2d 1001 (Fla. 4th DCA), rev. denied, 698 So.2d 1225 (Fla.1997), we reversed a murder conviction on a general verdict because the jury was instructed on......
  • Sutton v. State, 97-3115
    • United States
    • Court of Appeal of Florida (US)
    • July 29, 1998
    ...and well-settled law that the jury lawfully convicted Appellant of attempted premeditated first-degree murder. Spencer v. State, 693 So.2d 1001 (Fla. 4th DCA), rev. denied, 698 So.2d 1225 Accordingly, the judgment of conviction is hereby affirmed. PADOVANO, J., concurs. BENTON, J., dissents......
  • Spencer v. State
    • United States
    • United States State Supreme Court of Florida
    • August 22, 1997
    ...1225 698 So.2d 1225 Leonard Spencer v. State NO. 90,578 Supreme Court of Florida. Aug 22, 1997 Appeal From: 4th DCA, 693 So.2d 1001 Disposition: Rev....
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