State v. Wilson
| Decision Date | 03 July 1996 |
| Docket Number | No. 86680,86680 |
| Parties | 21 Fla. L. Weekly S292, 21 Fla. L. Weekly S344 STATE of Florida, Petitioner, v. Eduards WILSON, Respondent. |
| Court | Florida Supreme Court |
Robert A. Butterworth, Attorney General and Richard L. Polin, Assistant Attorney General, Miami, for Petitioner.
Bennett H. Brummer, Public Defender and Robert Kalter, Assistant Public Defender, Eleventh Judicial Circuit, Miami, for Respondent.
We have for review a decision certifying the following question to be of great public importance:
WHEN A CONVICTION FOR ATTEMPTED FIRST DEGREE FELONY MURDER MUST BE VACATED ON AUTHORITY OF STATE V. GRAY, 654 So.2d 552 (Fla.1995)[,] DO LESSER INCLUDED OFFENSES REMAIN VIABLE FOR A NEW TRIAL OR REDUCTION OF THE OFFENSE?
Wilson v. State, 660 So.2d 1067, 1069 (Fla. 3d DCA 1995). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.
Wilson was convicted of attempted felony murder and armed robbery after attempting to rob a man waiting for a bus and then shooting at him when the victim started to walk away. The victim was hit in the arm but not killed. After a jury trial, Wilson was sentenced to two concurrent twenty-seven year terms. The jury had not been instructed on attempted first-degree premeditated murder, but had been instructed on three lesser included offenses: attempted second-degree murder, attempted voluntary manslaughter, and aggravated battery.
The Third District Court of Appeal reversed the conviction and sentence for attempted felony murder, citing this Court's intervening decision in State v. Gray, 654 So.2d 552 (Fla.1995), where we held that the crime of attempted felony murder no longer existed in Florida. The state argued that under section 924.34, Florida Statutes (1995), 1 the district court should direct the lower court to enter judgment on the basis of one of the lesser included offenses. The court rejected this argument, reasoning that there could be no lesser included offense to a nonexistent crime. However, on the state's motion for rehearing or certification, the court certified the question we now consider.
We hold that the proper remedy is remand to the trial court for retrial on any of the other offenses instructed on at trial.
We have previously considered nonexistent offenses in slightly different circumstances. For instance, we have held that the remedy for improper conviction of the nonexistent offense of attempted extortion was retrial on the original charge of extortion. Achin v. State, 436 So.2d 30 (Fla.1982). Similarly, we directed that the remedy for an improper conviction of the nonexistent offense of attempted resisting arrest with violence was retrial on the resisting arrest with violence charge. Jordan v. State, 438 So.2d 825 (Fla.1983).
Wilson is correct in his assertion that those cases involved nonexistent offenses which were lesser included offenses of the principal charge in the charging document, as opposed to the instant case, where the principal charge was a nonexistent offense. However, we do not agree that this mandates dismissal of the charges in the instant case. In the earlier cases, "nonexistent" had a slightly different connotation. There, the offenses in question were never valid statutory offenses in Florida; they were simply the product of erroneous instruction. Here, attempted felony murder was a valid offense, with enumerated elements and identifiable lesser offenses, for approximately eleven years. It only became "nonexistent" when we decided Gray. Because it was a valid offense before Gray,...
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