State v. Gray, No. 83766

• Court: United States State Supreme Court of Florida
• Writing for the Court: HARDING; GRIMES
• Citation: 654 So.2d 552
• Parties: 20 Fla. L. Weekly S204 STATE of Florida, Petitioner, v. Collin GRAY, Respondent.
• Decision Date: 04 May 1995
• Docket Number: No. 83766

Page 552

654 So.2d 552 20 Fla. L. Weekly S204 STATE of Florida, Petitioner,
v.
Collin GRAY, Respondent. No. 83766. Supreme Court of Florida.
May 4, 1995.

Robert A. Butterworth, Atty. Gen. and Richard L. Polin, Asst. Atty. Gen., Miami, for petitioner.

J. Rafael Rodriguez, Specially Appointed Public Defender of the Law Offices of J. Rafael Rodriguez, Miami, for respondent.

HARDING, Justice.

We have for review Gray v. State, 654 So.2d 934 (Fla. 3rd DCA 1994), in which the district court certified this question as one of great public importance:

WHETHER THE "OVERT ACT" REFERRED TO IN AMLOTTE v. STATE, 456 So.2d 448, 449 (Fla.1984), INCLUDES ONE, SUCH AS FLEEING, WHICH IS INTENTIONALLY COMMITTED BUT IS NOT INTENDED TO KILL OR INJURE ANOTHER?

We have jurisdiction based on article V, section 3(b)(4) of the Florida Constitution.

Gray also argues that this Court should re-examine its decision in Amlotte. Because we have jurisdiction based on the certified question, we also have jurisdiction over this issue. Feller v. State, 637 So.2d 911, 914 (Fla.1994).

We find it unnecessary to answer the certified question because we recede from

Page 553

our holding in Amlotte that there is a criminal offense of attempted felony murder.

The relevant facts of this case are that Gray and two codefendants robbed a restaurant in Dade County and fled by car. After police spotted the car, the driver went through a red light and hit another car. The driver of the other car was ejected and rendered a quadriplegic. Gray was convicted of armed robbery with a firearm and attempted first-degree felony murder.

On appeal, the Third District Court of Appeal affirmed the robbery conviction, reversed the attempted first-degree felony murder conviction, and remanded the case for resentencing. Gray, 654 So.2d at 935.

The district court acknowledged that this Court recognized the offense of attempted felony murder in Amlotte. Id. Gray did not dispute that he perpetrated the enumerated felony of robbery. But the district court agreed with Gray that the information charging him did not allege and the State did not offer proof of a separate overt act which could, but did not, cause the death of another. Id.

The court found insufficient evidence to present a jury question of whether the overt act--running the red light, which resulted in the collision--could have caused the victim's death and reversed Gray's conviction for attempted first-degree felony murder. Id. 654 So.2d at 935. The court also certified the question to this Court. Id. at 936.

In Amlotte, we determined by a five-to-two vote that there is a criminal offense of attempted felony murder. 456 So.2d at 449. The essential elements of the crime are (1) perpetrating, or attempting to perpetrate an enumerated felony and, (2) during the commission of the enumerated felony, committing an intentional overt act, or aiding and abetting the commission of an intentional overt act, which could, but does not, cause the death of another. Id. We held that because the attempt occurs during the commission of a felony, the law, as it does under the felony murder doctrine, presumes the existence of the specific intent required to prove attempt. Id. at 449-50.

Justice Overton maintained in a dissent that the crime of attempted felony murder is logically impossible. Id. at 450 (Overton, J., dissenting). He pointed...