ALPHONSO LEE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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[*331] PER CURIAM.
We find no merit to appellant’s challenges of his convictions and sentences for first degree murder, attempted armed robbery and unlawful possession of a firearm while engaged in a criminal offense and affirm the same.
The appellant’s conviction and sentence for attempted felony murder, however, must be reversed based on State v. Gray, 654 So. 2d 552 (Fla.1995). We interpret Gray to require on remand a complete discharge of the appellant on this count rather than a reduction to a lesser included offense or a new trial on lesser included offenses. Alfonso v. State, 661 So. 2d 308 (Fla. 3d DCA 1995); Wilson v. State, 660 So. 2d 1067 (Fla. 3d DCA 1995), rehearing denied and question certified, 20 Fla.L.Weekly D2248, 2249 (Fla. 3d DCA Oct. 5, 1995). We recognize, however, that this issue will recur in virtually all cases governed by Gray. Thus, we again certify the following question of great public importance:
WHEN A CONVICTION FOR ATTEMPTED FIRST DEGREE FELONY MURDER MUST BE VACATED ON AUTHORITY OF STATE v. GRAY, 654 So. 2d 552 (Fla.1995), DO LESSER INCLUDED OFFENSES REMAIN VIABLE FOR A NEW TRIAL OR REDUCTION OF THE OFFENSE?
Affirmed in part and reversed and remanded in part with instructions.
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Thompson v. State, 667 So. 2d 470 (Fla. 3d DCA 1996)…tter to the trial court for a new trial on the charge of attempted premeditated murder. We note that in reversing and remanding for a new trial on the charge of attempted premeditated murder, this case differs from the recent cases of Lee v. State, 664 So. 2d 330 (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…
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Williamson v. State, 671 So. 2d 281 (Fla. 4th DCA 1996)…d the state’s contention that either the trial court or the appellate court had the authority to reduce a conviction for a nonexistent crime to a lesser included offense. However, the third district certified the question. Id. See also Lee v. State, 664 So. 2d 330 (Fla. 3d DCA 1995). In Thompson v. State, 667 So. 2d 470 (Fla. 3d DCA 1996), the third district distinguished Alfonso in that charges of attempted premeditated murder were not viable. In Thompson, however, as in the subsequent Meeks case and as in…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Collin Gray, 654 So. 2d 552 (Fla. 1995)
- Eduards Wilson v. State, 660 So. 2d 1067 (Fla. 3d DCA 1995)
- Alfonso v. State, 661 So. 2d 308 (Fla. 3d DCA 1995)