Wilson v. State

CourtCourt of Appeal of Florida (US)
Citation660 So.2d 1067
Docket NumberNo. 94-2621,94-2621
Parties20 Fla. L. Weekly D1654 Eduards WILSON, Appellant, v. The STATE of Florida, Appellee.
Decision Date19 July 1995
Order Denying Rehearing and

Granting Certification Oct. 5, 1995.

Bennett H. Brummer, Public Defender and Robert Kalter, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Richard L. Polin, Asst. Atty. Gen., for appellee.

Before BASKIN, COPE and GREEN, JJ.

PER CURIAM.

As to appellant's first contention on appeal, we reverse and vacate his conviction and sentence for attempted felony murder based upon the Supreme Court's most recent pronouncement in State v. Gray, 654 So.2d 552 (Fla.1995) that attempted felony murder is no longer a criminal offense in the State of Florida. This decision is applicable to all cases pending on direct review or not yet final. Smith v. State, 598 So.2d 1063, 1066 (Fla.1992); Fink v. Holt, 609 So.2d 1333 (Fla. 4th DCA 1992). The State nevertheless argues that Gray does not affect potential lesser included offenses of attempted felony murder and that pursuant to section 924.34, Florida Statutes (1993), 1 this court should reduce appellant's conviction to an appropriate lesser included offense for which there was sufficient evidence. We disagree and find that the State's reliance upon section 942.34 is misplaced. In accordance with Gray, appellant's conviction for attempted felony murder is not being vacated due to insufficiency of evidence so as to invoke section 924.34. Moreover, the notion that lesser included offenses can somehow exist for a nonexistent crime simply defies logic. Thus, the trial court is instructed to reverse and vacate appellant's conviction and sentence for attempted felony murder. See Gray; State v. Grinage, 656 So.2d 457 (Fla.1995), receded from Amlotte v. State, 456 So.2d 448 (Fla.1984).

As to appellant's remaining argument on appeal, we agree that the trial court erred when it sentenced him to twenty-seven years in state prison where he was convicted of attempted robbery, a second degree felony. The maximum penalty for a second degree felony is fifteen years in state prison. See section 775.082(3)(c) Florida Statutes (Supp.1994). We, therefore, reverse and remand for a new sentencing hearing on this count.

Reversed and remanded with instructions.

ON MOTION FOR REHEARING AND CERTIFICATION

The State moves for rehearing or certification, arguing that on remand there should either be a new trial on lesser included offenses or that the defendant's conviction for attempted first degree felony murder should be reduced to a lesser included offense. We cannot agree. We interpret the Florida Supreme Court's decision in State v. Gray, 654 So.2d 552 (Fla.1995), to require an outright reversal, rather than a reduction to a lesser included offense or a new trial on lesser included offenses. Moreover, we see no principled basis for such a reduction because, as a matter of law, there can be no lesser included offenses under a non-existent offense such as attempted first degree felony murder....

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12 cases
  • Jones v. State, 95-389
    • United States
    • Florida District Court of Appeals
    • 13 Marzo 1996
    ...third degree felony murder conviction must be reversed under State v. Gray, 654 So.2d 552 (Fla.1995). Moreover, as in Wilson v. State, 660 So.2d 1067 (Fla. 3d DCA 1995), review granted, 668 So.2d 604 (Fla.1996), and several similar cases, 2 we reject the state's claim that this conviction m......
  • Thompson v. State
    • United States
    • Florida District Court of Appeals
    • 31 Enero 1996
    ...(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 inc......
  • Gibson v. State, 94-3311
    • United States
    • Florida District Court of Appeals
    • 6 Febrero 1996
    ...the numerous other cases affected by Gray and Grinage. See, e.g., Selway v. State, 660 So.2d 1176 (Fla. 5th DCA 1995); Wilson v. State, 660 So.2d 1067 (Fla. 3d DCA 1995) (on motion for rehearing and certification); Williams v. State, 657 So.2d 80 (Fla. 1st DCA 1995). Accordingly, we certify......
  • Riggins v. State, 95-1463
    • United States
    • Florida District Court of Appeals
    • 9 Abril 1996
    ...Alfonso v. State, 661 So.2d 308 (Fla. 3d DCA 1995), review granted, No. 86,739, 668 So.2d 603 (Fla. Jan. 30, 1996); Wilson v. State, 660 So.2d 1067 (Fla. 3d DCA 1995), review granted, No. 86,680, 668 So.2d 604 (Fla. Jan. 31, Appellant's remaining convictions are affirmed, but the case is re......
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