Thompson v. State, No. 94-903

CourtCourt of Appeal of Florida (US)
Writing for the CourtBARKDULL
Parties21 Fla. L. Weekly D286 Darryl THOMPSON, Appellant, v. The STATE of Florida, Appellee.
Docket NumberNo. 94-903
Decision Date31 January 1996

Page 470

667 So.2d 470
21 Fla. L. Weekly D286
Darryl THOMPSON, Appellant,
v.
The STATE of Florida, Appellee.
No. 94-903.
District Court of Appeal of Florida,
Third District.
Jan. 31, 1996.

Page 471

An Appeal from the Circuit Court for Dade County; Jeffrey Rosinek, Judge.

Roy D. Wasson, Miami, for appellant.

Robert A. Butterworth, Attorney General, and Consuelo Maingot, Assistant Attorney General, for appellee.

Before BARKDULL, BASKIN and LEVY, JJ.

BARKDULL, Judge.

Among other things, the appellant was convicted of attempted first degree murder of a law enforcement officer prior to the Supreme Court holding in State v. Gray, 654 So.2d 552 (Fla.1995). The matter went to the jury on two theories, attempted felony murder and attempted premeditated murder. After Gray, one of these crimes no longer exists and the Gray decision applies to all cases in the "pipeline". State v. Grinage, 656 So.2d 457 (Fla.1995); Gray, 654 So.2d at 554.

Therefore, we reverse the conviction of attempted first degree murder pursuant to the authority of Humphries v. State, 20 Fla.L.Weekly D2634, --- So.2d ---- (Fla. 5th DCA December 1, 1995); Tape v. State, 661 So.2d 1287 (Fla. 4th DCA 1995) and Harris v. State, 658 So.2d 1226 (Fla. 4th DCA 1995) and return the matter to the trial court for a new trial on the charge of attempted premeditated murder.

We note that in reversing and remanding for a new trial on the charge of attempted premeditated murder, this case differs from the recent cases of Lee v. State, 664 So.2d 330 (Fla. 3d DCA 1995) (question certified); Alfonso v. State, 661 So.2d 308 (Fla. 3d DCA 1995) (question certified), and Wilson v. State, 660 So.2d 1067 (Fla. 3d DCA 1995) (question certified). In those cases this court refused to reduce a conviction for attempted felony murder to a lesser included offense or remand for a new trial on a lesser included offense because it found that there could be no lesser included offense to the now non-existent crime of attempted felony murder. The facts in Lee, Alfonso and Wilson were such that charges of attempted premeditated murder were not viable. In the instant case however, the defendant was charged in the alternative for both attempted premeditated and attempted felony murder. We see no impediment to reversing and remanding for a new trial on the charge of attempted premeditated murder where the facts of the case could support a guilty verdict on that charge.

Because this cause must be retried, we address several other issues raised by the appellant.

The appellant contends that the trial court erroneously denied his requested jury instruction that it is an element of the crime of attempted murder of a law enforcement officer that the defendant know that the victim is a...

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18 practice notes
  • State v. Barnum, No. SC03-1315.
    • United States
    • United States State Supreme Court of Florida
    • September 22, 2005
    ...Grinage, 641 So.2d at 1364. We accepted jurisdiction in Thompson on the basis of conflict between Grinage and Thompson v. State, 667 So.2d 470 (Fla. 3d DCA 1996), where the Third District held that section 784.07(3) was only a sentencing enhancement and did not require the defendant to have......
  • Woodley v. State, No. 95-2749
    • United States
    • Court of Appeal of Florida (US)
    • May 8, 1996
    ...that the state may only punish one who has committed an offense." State v. Sykes, 434 So.2d 325, 328 (Fla.1983); see Thompson v. State, 667 So.2d 470 (Fla. 3d DCA 1996) (reversing a conviction for attempted felony murder that was pending on direct review because one cannot be convicted of a......
  • Mitchell v. State, Nos. 95-2849
    • United States
    • Court of Appeal of Florida (US)
    • February 12, 1997
    ...Florida Statutes, does not require that the perpetrator know the victim's status as a law enforcement officer. See Thompson v. State, 667 So.2d 470 (Fla. 3d DCA), review granted, 675 So.2d 931 (Fla.1996). Moreover, despite being charged under this statute, the trial judge did not enhance th......
  • Thompson v. State, No. 87505
    • United States
    • United States State Supreme Court of Florida
    • June 12, 1997
    ...Consuelo Maingot, Assistant Attorney General, Fort Lauderdale, for Respondent. HARDING, Justice. We have for review Thompson v. State, 667 So.2d 470 (Fla. 3d DCA 1996), which expressly and directly conflicts with the opinion in Grinage v. State, 641 So.2d 1362 (Fla. 5th DCA 1994), approved,......
  • Request a trial to view additional results
18 cases
  • State v. Barnum, No. SC03-1315.
    • United States
    • United States State Supreme Court of Florida
    • September 22, 2005
    ...Grinage, 641 So.2d at 1364. We accepted jurisdiction in Thompson on the basis of conflict between Grinage and Thompson v. State, 667 So.2d 470 (Fla. 3d DCA 1996), where the Third District held that section 784.07(3) was only a sentencing enhancement and did not require the defendant to have......
  • Woodley v. State, No. 95-2749
    • United States
    • Court of Appeal of Florida (US)
    • May 8, 1996
    ...that the state may only punish one who has committed an offense." State v. Sykes, 434 So.2d 325, 328 (Fla.1983); see Thompson v. State, 667 So.2d 470 (Fla. 3d DCA 1996) (reversing a conviction for attempted felony murder that was pending on direct review because one cannot be convicted of a......
  • Mitchell v. State, Nos. 95-2849
    • United States
    • Court of Appeal of Florida (US)
    • February 12, 1997
    ...Florida Statutes, does not require that the perpetrator know the victim's status as a law enforcement officer. See Thompson v. State, 667 So.2d 470 (Fla. 3d DCA), review granted, 675 So.2d 931 (Fla.1996). Moreover, despite being charged under this statute, the trial judge did not enhance th......
  • Thompson v. State, No. 87505
    • United States
    • United States State Supreme Court of Florida
    • June 12, 1997
    ...Consuelo Maingot, Assistant Attorney General, Fort Lauderdale, for Respondent. HARDING, Justice. We have for review Thompson v. State, 667 So.2d 470 (Fla. 3d DCA 1996), which expressly and directly conflicts with the opinion in Grinage v. State, 641 So.2d 1362 (Fla. 5th DCA 1994), approved,......
  • Request a trial to view additional results

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