194 So. 3d 341
Fla. Dist. Ct. App.2015Background
- Calvin Lee Weatherspoon was tried (with co-defendants) for a November 2008 Dunkin’ Donuts robbery during which a co-defendant shot three people; counts included attempted first‑degree murder and robbery.
- The information charged attempted first‑degree premeditated murder; it did not cite or allege the elements of the post‑Gray attempted felony murder statute, section 782.051.
- At trial the State pursued both premeditated attempted murder and attempted felony murder theories; the court instructed the jury using the standard attempted felony murder instruction over defendants’ objections.
- Defense counsel argued they were prejudiced because they had admitted the underlying robbery as part of trial strategy and only learned of the felony‑murder theory during openings.
- The jury returned general guilty verdicts on attempted first‑degree murder without distinguishing the theory; the trial court did not use separate verdict forms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by instructing on attempted felony murder when the information did not charge it | Weatherspoon: instruction was error because attempted felony murder (§782.051) was not charged and contains elements not alleged | State: charging attempted premeditated murder permits instruction on (attempted) felony murder; citations to attempt and murder statutes sufficed | Majority: affirmed (relying on co‑defendant Bell). Dissent: reversible error — instruction was on an uncharged, separate statutory crime |
| Whether the information gave constitutionally adequate notice for attempted felony murder | Weatherspoon: information omitted essential elements and statute, so due process violated | State: prior case law allows felony‑murder theory under a premeditation charge; alleged statutes and attempt citation are sufficient notice | Dissent: information was fundamentally defective for attempted felony murder; failure to charge is reversible when prejudice is shown |
| Whether the jury’s general verdict requires reversal when one theory may be legally unsupported | Weatherspoon: general verdict invalid because jury could have relied on uncharged theory; no separate verdict form to discern basis | State: (implicit) no reversible error given prior precedent and presentation at trial | Dissent: analogous to Valentine — cannot tell jury’s basis; requires new trial |
| Whether post‑Miranda waiver/confession claim failed (mentioned in lead opinion) | Weatherspoon: claimed confession should be suppressed after equivocal request for counsel | State: detective’s questioning was permitted because request was equivocal | Lead opinion: affirmed — request was equivocal and interrogation permissibly continued |
Key Cases Cited
- Bell v. State, 152 So.3d 714 (Fla. 4th DCA 2014) (addressed attempted felony murder instruction in co‑defendant’s appeal)
- State v. Gray, 654 So.2d 552 (Fla. 1995) (held common‑law attempted felony murder was logically impossible)
- Valentine v. State, 688 So.2d 313 (Fla. 1996) (vacated attempted first‑degree murder conviction where jury was instructed on legally unsupported theory)
- White v. State, 973 So.2d 638 (Fla. 4th DCA 2008) (upheld conviction where information alleged elements of attempted felony murder despite not citing §782.051)
- O’Callaghan v. State, 429 So.2d 691 (Fla. 1983) (held indictment charging premeditated murder could support felony‑murder theory under earlier statutory scheme)
- Milton v. State, 161 So.3d 1246 (Fla. 2014) (discussed the additional element required by the §782.051 attempted felony murder statute)
- Price v. State, 995 So.2d 401 (Fla. 2008) (due process requires information to allege essential elements; relief generally requires showing of actual prejudice)