Upshaw v. State, 95-00077

Decision Date13 December 1995
Docket NumberNo. 95-00077,95-00077
Citation665 So.2d 303
Parties20 Fla. L. Weekly D2750 Donnie UPSHAW, Jr., Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

James Marion Moorman, Public Defender, and Julia Diaz, Assistant Public Defender, Bartow, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Tampa, for Appellee.

CAMPBELL, Acting Chief Judge.

Appellant challenges only his convictions on two counts of attempted first degree felony murder on the grounds that Florida no longer recognizes attempted felony murder as a crime. State v. Grinage, 656 So.2d 457 (Fla.1995). Appellant pled no contest to two counts of attempted first degree murder with a firearm and one count of robbery with a firearm. The court adjudicated appellant guilty and sentenced him to fifteen years on each count. All three counts were to run concurrently with credit for time served. The court also imposed a three-year minimum mandatory. The scoresheet maximum sentence was eighteen years. The state concedes error. Given the fact that Grinage was made applicable to all cases pending on direct review or not yet final at the time of State v. Gray, 654 So.2d 552 (Fla.1995), and this case was not yet final at the time of Gray, we, too, agree that Grinage applies and conclude that appellant's two convictions for attempted first degree felony murder should be vacated. As observed in Brown v. State, 550 So.2d 142 (Fla. 1st DCA 1989), a defendant's conviction for a nonexistent offense is reversible fundamental error that need not have been preserved for appeal.

Since the nolo plea was entered on a material mistake of law, it was invalid, and no legal sentence could be imposed. Jolly v. State, 392 So.2d 54 (Fla. 5th DCA 1981). Accordingly, we set aside the plea, judgment and sentence on the two counts of attempted first degree felony murder. On remand, ...

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4 cases
  • State v. Floyd
    • United States
    • North Carolina Court of Appeals
    • December 16, 2014
    ...is fundamental error which requires reversal, regardless of whether the error was invited by the defendant"); Upshaw v. State, 665 So.2d 303, 303–04 (Fla.Dist.Ct.App.2d Dist.1995) (holding that defendant's conviction, which stemmed from a nolo contendere plea, for committing a nonexistent o......
  • Akins v. State, 96-300
    • United States
    • Florida District Court of Appeals
    • April 16, 1997
    ...jurisdiction exists.") We vacate appellant's conviction and sentence for first degree attempted felony murder only. Upshaw v. State, 665 So.2d 303, 304 (Fla. 2d DCA 1995)(vacating convictions for nonexistent crime of attempted first degree felony murder and invalidating defendant's nolo ple......
  • Ellis v. State, 94-3648
    • United States
    • Florida District Court of Appeals
    • June 19, 1996
    ...new trial or for reduction of the convicted offense. As predicted in Gibson, a slightly different result was reached in Upshaw v. State, 665 So.2d 303 (Fla. 2d DCA 1995). There, the Second District recognized that under Gray, Upshaw's two convictions of attempted first-degree felony murder ......
  • Harkness v. State, 1D99-4665.
    • United States
    • Florida District Court of Appeals
    • November 9, 2000
    ...for each of the remaining offenses are remanded for resentencing pursuant to a newly calculated scoresheet. See Upshaw v. State, 665 So.2d 303 (Fla. 2d DCA 1995). However, the state shall have the option of withdrawing from the entire plea agreement since the plea agreement was based on a m......

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