Valladares v. State
| Citation | 658 So.2d 626 |
| Decision Date | 21 July 1995 |
| Docket Number | No. 94-2423,94-2423 |
| Parties | 20 Fla. L. Weekly D1719 Robert Emilio VALLADARES, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Anne Moorman Reeves, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Timothy D. Wilson, Asst. Atty. Gen., Daytona Beach, for appellee.
Valladares was tried and convicted of (1) attempted felony murder of a law enforcement officer; (2) grand theft of a motor vehicle; and (3) escape. The evidence at trial indicated that Valladares, while attempting to escape from custody, nearly ran over a police officer in the process, forcing the latter to dive onto the hood of the motor vehicle Valladares was driving. Subsequently, the car smashed into a tree and the officer was thrown off the hood. Valladares had swerved the car prior to the crash, attempting to dislodge the officer.
On appeal Valladares contends that he was improperly charged with attempted felony murder of a law enforcement officer, and, furthermore, that the facts of the case did not include an "overt act" sufficient to support conviction for that offense. Valladares also argues that the trial court fundamentally erred in failing to give the entire, required sequence of instructions for all attempted homicides.
Subsequent to the filing of the briefs in the instant case, the Florida Supreme Court issued its opinion in State v. Gray, 654 So.2d 552 (Fla.1995), wherein it receded from Amlotte v. State, 456 So.2d 448 (Fla.1984) and concluded that Justice Overton's dissent in that case was correct--i.e., the crime of attempted felony murder is logically impossible. Hence, there is no such crime in Florida as attempted felony murder. The Gray decision was explicitly deemed to be applicable to all cases then pending on direct review or not yet final as of that time.
Valladares was convicted in the instant case of the non-existent crime of attempted felony murder. We reverse that conviction and remand for resentencing in regard to his convictions for grand theft and escape.
REVERSED and REMANDED.
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Kaplan v. State, 95-1118
...1176 (Fla. 5th DCA 1995) (court simply reversed defendant's conviction for attempted third degree felony murder ); Valladares v. State, 658 So.2d 626 (Fla. 5th DCA 1995) (court simply reversed conviction for non-existent crime of attempted felony murder); Crystal v. State, 657 So.2d 77 (Fla......
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Lewellen v. State
...two other challenges to his petit theft conviction which have no merit but which warrant discussion. Relying on Valladares v. State, 658 So.2d 626 (Fla. 5th DCA 1995), and O'Brian v. State, 649 So.2d 336 (Fla. 1st DCA 1995), Lewellen argues that his conviction must be vacated because he was......
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Gutierrez v. State, 95-132
...felony murder; court would not find that lesser included offenses could exist for nonexistent crime). See also, Valladares v. State, 658 So.2d 626 (Fla. 5th DCA 1995) (defendant's conviction for nonexistent crime of attempted felony murder reversed and remanded for resentencing on other off......
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Johnson v. State, Q-T
...murder, affirm the remainder of appellant's convictions, and remand for resentencing on these remaining convictions. Valladares v. State, 658 So.2d 626 (Fla. 5th DCA 1995). See also Harris v. State, 658 So.2d 1226 (Fla. 4th DCA 1995). Appellant has raised other issues concerning costs impos......