St. Hilare v. State, s. 94-2241
| Citation | 669 So.2d 1135 |
| Decision Date | 20 March 1996 |
| Docket Number | 94-2242,Nos. 94-2241,s. 94-2241 |
| Parties | 21 Fla. L. Weekly D678 James ST. HILARE and Jimmy Fede, Appellants, v. The STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Appeals from the Circuit Court for Dade County, Fredricka G. Smith, Judge.
Bennett H. Brummer, Public Defender, and May L. Cain, Special Assistant Public Defender, and Maria Brea Lipinski and John Lipinski, for appellants.
Robert A. Butterworth, Attorney General, and Charles M. Fahlbusch, Assistant Attorney General, for appellee.
Before BARKDULL, NESBITT and GODERICH, JJ.
In these consolidated cases, defendants Jimmy Fede and James St. Hilare appeal their convictions for first-degree murder, attempted first-degree murder, and armed robbery. Defendants correctly contend that post-State v. Gray, 654 So.2d 552 (Fla.1995) the offense of attempted felony murder is no longer recognized in Florida. See Thompson v. State, 667 So.2d 470 (Fla. 3d DCA 1996); Humphries v. State, 20 Fla.L. Weekly D 2634, --- So.2d ---- (Fla. 5th DCA Dec. 1, 1995); Tape v. State, 661 So.2d 1287 (Fla. 4th DCA 1995); Harris v. State, 658 So.2d 1226 (Fla. 4th DCA 1995). Because the state in the instant case argued to the jury both attempted felony murder and attempted premeditated murder, it is impossible to determine upon which theory the jury based its convictions. Therefore, defendants' attempted first-degree murder convictions must be reversed. See Tape, 661 So.2d at 1288. No one may be convicted of a non-existent crime. Id. Because the facts may support guilty verdicts on the charges of attempted premeditated murder, a new trial on those charges is mandated. See Thompson, 667 So.2d at 470-72.
Accordingly, defendants' convictions and sentences for attempted first-degree murder are reversed and the causes remanded.
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Woodley v. State, 95-2749
...for attempted felony murder that was pending on direct review because one cannot be convicted of a nonexistent crime); Hilare v. State, 669 So.2d 1135 (Fla. 3d DCA 1996) (reversing attempted murder conviction "[b]ecause the state ... argued to the jury both attempted felony murder and attem......