Opinion
No. 95-1463.
April 9, 1996.
An appeal from the Circuit Court for Alachua County; Nath C. Doughtie, Judge.
Nancy A. Daniels, Public Defender, Paula S. Saunders, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General, Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Appellee.
Appellant's conviction for attempted third degree felony murder is reversed, because attempted felony murder is a nonexistent crime. State v. Gray, 654 So.2d 552 (Fla. 1995); State v. Grinage, 656 So.2d 457 (Fla. 1995). Although we reject the state's argument that the case should be remanded with directions to enter a judgment for the lesser included offense of resisting an officer with violence, in accordance with Pratt v. State, 668 So.2d 1007 (Fla. 1st DCA 1996), we certify the following question to the Florida Supreme Court as one of great public importance:
Appellant was originally charged with attempted second degree murder of a law enforcement officer.
ONCE A DEFENDANT IS CHARGED WITH ATTEMPTED SECOND DEGREE (DEPRAVED MIND) MURDER OF A LAW ENFORCEMENT OFFICER AND IS CONVICTED BY A JURY OF THE LESSER OFFENSE OF ATTEMPTED THIRD DEGREE FELONY MURDER, A NONEXISTENT OFFENSE, DOES STATE v. GRAY, 654 So.2d 552 (Fla. 1995), PERMIT THE TRIAL COURT, UPON REVERSAL OF THE CONVICTION AND REMAND, TO ENTER JUDGMENT FOR THE OFFENSE OF RESISTING ARREST WITH VIOLENCE, A LESSER INCLUDED OFFENSE OF THE CRIME CHARGED?
IF THE ANSWER IS NO, THEN DO LESSER INCLUDED OFFENSES OF THE CHARGED OFFENSE REMAIN VIABLE FOR A NEW TRIAL?
See also Lee v. State, 670 So.2d 169 (Fla. 1st DCA 1996); Gibson v. State, 667 So.2d 884 (Fla. 1st DCA 1996); Gutierrez v. State, 665 So.2d 294 (Fla. 5th DCA 1995); Lee v. State, 664 So.2d 330 (Fla. 3d DCA 1995), review granted, 673 So.2d 30 (Fla. 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, 1996).
Appellant's remaining convictions are affirmed, but the case is remanded for recomputation of appellant's scoresheet and resentencing on the remaining convictions. Gray; Crystal v. State, 657 So.2d 77 (Fla. 1st DCA 1995).
AFFIRMED in part, REVERSED in part and REMANDED for further proceedings.
ERVIN, MINER and VAN NORTWICK, JJ., concur.