Summary
reversing attempted murder conviction "[b]ecause the state . . . argued to the jury both attempted felony murder and attempted premeditated murder, it is impossible to determine upon which theory the jury based its convictions."
Summary of this case from Woodley v. StateOpinion
Nos. 94-2241, 94-2242.
March 20, 1996.
Appeals from the Circuit Court for Dade County, Fredricka G. Smith, Judge.
Bennett H. Brummer, Public Defender, and May L. Cain, Special Assistant Public Defender, and Maria Brea Lipinski and John Lipinski, for appellants.
Robert A. Butterworth, Attorney General, and Charles M. Fahlbusch, Assistant Attorney General, for appellee.
Before BARKDULL, NESBITT and GODERICH, JJ.
In these consolidated cases, defendants Jimmy Fede and James St. Hilare appeal their convictions for first-degree murder, attempted first-degree murder, and armed robbery. Defendants correctly contend that post- State v. Gray, 654 So.2d 552 (Fla. 1995) the offense of attempted felony murder is no longer recognized in Florida. See Thompson v. State, 667 So.2d 470 (Fla. 3d DCA 1996); Humphries v. State, 20 Fla.L. Weekly D 2634, ___ So.2d ___ [1995 WL 358107] (Fla. 5th DCA Dec. 1, 1995); Tape v. State, 661 So.2d 1287 (Fla. 4th DCA 1995); Harris v. State, 658 So.2d 1226 (Fla. 4th DCA 1995). Because the state in the instant case argued to the jury both attempted felony murder and attempted premeditated murder, it is impossible to determine upon which theory the jury based its convictions. Therefore, defendants' attempted first-degree murder convictions must be reversed. See Tape, 661 So.2d at 1288. No one may be convicted of a non-existent crime. Id. Because the facts may support guilty verdicts on the charges of attempted premeditated murder, a new trial on those charges is mandated. See Thompson, 667 So.2d at 470-72.
Accordingly, defendants' convictions and sentences for attempted first-degree murder are reversed and the causes remanded.