Watkins v. State

Decision Date02 January 1998
Docket NumberNo. 96-3129,96-3129
Citation705 So.2d 938
Parties23 Fla. L. Weekly D160 Cedric WATKINS, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Mark E. NeJame and Joe Daniel Harrington, of Law Offices of Mark E. NeJame, P.A., Orlando, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.

GRIFFIN, Chief Judge.

The only issue raised on appeal in this case is whether the evidence is sufficient to support the jury's verdict of attempted second-degree murder. After an altercation, appellant left the scene, later returned in his car with a gun and fired several shots at the victim, striking him twice--once in each leg. The appellant focuses solely on the testimony of the victim who, at one point in the trial, testified that it seemed to him that the defendant was aiming at the ground and the bullets were bouncing off the ground into his legs. He subsequently attempted to explain that this could not have been the case but the court evidently agreed with defense counsel that the damage to the state's attempted first-degree murder charge was irreparable. The state conceded the lack of sufficient evidence for attempted first-degree murder but urged the evidence was sufficient to support the lesser included offenses of attempted second-degree murder or aggravated battery. The defense did not object to the reduction in the charge. There is plainly sufficient evidence to support the attempted second-degree murder conviction. See, e.g., Brown v. State, 569 So.2d 1320 (Fla. 1st DCA 1990).

The question whether attempted second-degree murder survives as a recognized criminal offense in Florida, the issue on which my colleagues write, was not raised below or on appeal. Moreover, the law appears well settled that attempted second-degree murder is a crime in Florida and that it is a necessarily lesser included offense of attempted first-degree murder. Gentry v. State, 437 So.2d 1097 (Fla.1983); Holland v. State, 634 So.2d 813, 816 (Fla. 1st DCA 1994); Dicicco v. State, 496 So.2d 864, 865 (Fla. 2d DCA 1986); Williams v. State, 462 So.2d 577 (Fla. 4th DCA), review denied, 472 So.2d 1182 (Fla.1985); Morgan v. State, 417 So.2d 1027 (Fla. 3d DCA 1982), review denied, 426 So.2d 27 (Fla.1983); Littles v. State, 384 So.2d 744 (Fla. 1st DCA 1980). See Florida Std. Jury Instr. (Crim.), Schedule of Lesser Included Offenses. The difficulties that inhere in attempted second-degree murder are undeniable, if not novel. They were recognized prior to Gentry and the stated purpose of Gentry was to put them to rest.

Whether the supreme court has changed direction in Thomas v. State, 531 So.2d 708 (Fla.1988) and State v. Gray, 654 So.2d 552 (Fla.1995) thereby eliminating attempted second-degree murder and displacing Gentry is a question of some substance. Attempted felony murder and attempted second-degree murder are different, however, and the practical difficulties noted by the supreme court in applying Amlotte v. State, 456 So.2d 448 (Fla.1984) concept of attempted felony murder 1 do not appear to have arisen in light of Gentry. Manifestly, if the Florida supreme court did abolish the crime of attempted second-degree murder by its decision in Gray, it does not appear to have noticed that it did so. Standard Jury Instructions in Criminal Cases, 697 So.2d 84, 85 (Fla.1997); State v. Wilson, 680 So.2d 411 (Fla.1996); Harris v. State, 674 So.2d 110, 113 (Fla.1996) (Anstead, J. concurring in part; dissenting in part). Unless the high court says otherwise, the crime described by Justice Shaw in Gentry 2 remains viable.

AFFIRMED.

COBB, J., concurs specially, with opinion.

HARRIS, J., dissents, with opinion.

COBB, Judge, concurring specially.

I agree with the majority opinion that, assuming the existence in Florida of the offense of attempted second degree murder, the evidence here was sufficient to support the conviction. Therefore, the true issue we should consider, given the advent of State v. Gray, 654 So.2d 552 (Fla.1995), is whether or not the crime of attempted second degree murder is still recognized in Florida. If it is not, then the instant conviction would be for a non-existent crime and reviewable as fundamental error. See State v. Sykes, 434 So.2d 325, 328 (Fla.1983).

The statutory definitions of second degree murder and attempt are:

782.04 Murder. -

(2) The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree.... (Emphasis added).

777.04 Attempts, solicitation and conspiracy. -

(1) A person who attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such offense, but fails in the perpetration or is intercepted or prevented in the execution thereof, commits the offense of criminal attempt,.... (Emphasis added).

In 1983, the Florida Supreme Court addressed the question of whether Florida recognizes the crime of attempted second degree murder in the case of Gentry v. State, 437 So.2d 1097 (Fla.1983). 1 In a unanimous opinion authored by Justice Shaw the court stated:

Within recent months the district courts of appeal have grappled with this issue and extremely able judges have reached diametrically opposed positions. One school of thought rejects the notion that there can ever be an attempt without a specific intent, reasoning that one cannot attempt to do something without first forming the specific intent to accomplish that particular act. This position is consistent with our commonly-accepted definition of attempt: a specific intent to commit the crime and an overt act, beyond mere preparation, done towards the commission. The intent and the act must be such that they would have resulted in the completed crime except for the interference of some cause preventing the carrying out of the intent. Adams [Adams v. Murphy, 394 So.2d 411 (Fla.1981) ]; Turner v. State, 100 Fla. 1078, 130 So. 617 (Fla.1930); Gustine v. State, 86 Fla. 24, 97 So. 207 (Fla.1923). The opposing school of thought emphasizes the illogic of requiring the state to prove an intent for successful prosecution of an attempt to commit a crime when no such degree of proof is necessary for successful prosecution of the completed crime.

The Court then held that there are offenses that may be prosecuted as an attempt without proof of a specific intent to commit a relevant completed offense, and that the key to recognizing such offenses is a determination of whether the completed offense is one requiring specific intent or general intent. If a showing of specific intent is not required in order for the State to successfully prosecute the completed crime, the Court said, then the State would not be required to show specific intent to successfully prosecute an attempt to commit that crime. The Court then observed that second degree murder and third degree (felony) murder are crimes requiring only general intent. Thus, the Court recognized the existence of the crime of attempted second degree murder.

Subsequently, however, in Thomas v. State, 531 So.2d 708 (Fla.1988), the Florida Supreme Court, without reference to Gentry, returned to the traditional interpretation of an attempt pursuant to section 777.04(1), Florida Statutes--i.e., an attempt exists only when there is an intent to commit a crime, coupled with an overt act apparently adapted to effect that intent, carried beyond mere preparation, but falling short of execution of the ultimate design. The Court cited to the older case of Gustine v. State, 86 Fla. 24, 26, 97 So. 207, 208 (1923), for this definition, which has been reaffirmed more recently in Rogers v. State, 660 So.2d 237, 238 (Fla.1995). This established definition of the crime of attempt, of course, conflicts with the Gentry opinion, and that conflict was specifically noted by the Florida Supreme Court in Gray in footnote 1 of that opinion.

In Gray, the Court unanimously receded from its prior holding in Amlotte v. State, 456 So.2d 448 (Fla.1984), and held, contrary to Gentry, that the crime of felony murder does not exist in Florida. In doing so, the Court approved Justice Overton's dissenting view in Amlotte as reflecting the more logical and correct position. That dissent by Justice Overton stated:

A conviction for the offense of attempt has always required proof of the intent to commit the underlying crime. See Hutchinson v. State, 315 So.2d 546 (Fla. 2d DCA 1975); Robinson v. State, 263 So.2d 595 (Fla. 3d DCA 1972); Groneau v. State, 201 So.2d 599 (Fla. 4th DCA), review denied, 207 So.2d 452 (Fla.1967). By recognizing the crime of attempt with regard to felony murder, a crime in which the intent to kill is presumed, the Court has created a crime which necessitates the finding of an intent to commit a crime which requires no proof of intent. As stated by Judge Cowart in his dissenting opinion to the district court decision, this holding creates a "crime requiring one to intend to do an unintended act which is a logical absurdity and certainly an inadequate conceptual basis for something that needs to be as clear and understandable as do the elements of a felony crime." Amlotte v. State, 435 So.2d 249, 254 (Fla. 5th DCA 1983) (Cowart, J., dissenting).

If the crime of attempted felony murder does not exist, then neither, it would seem, could the crime of attempted second degree murder--and for the same reasons. It is just as illogical to say that one can attempt (i.e., intend) to commit an unintended homicide by a depraved act as to say that one can attempt to commit an unintended homicide by commission of the underlying felony. 2

Gray also noted our opinion in Grinage v. State, 641 So.2d 1362, 1366 (Fla. 5th DCA ...

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