Newbhard v. State
237 So. 3d 1075
| Fla. Dist. Ct. App. | 2017Background
- On March 21, 2012, Newbhard confronted David Montesino on apartment stairs, pointed a gun, grabbed Montesino’s daughter and girlfriend, and demanded Montesino’s gold chain.
- After Montesino knocked Newbhard’s hat off and began to flee, Newbhard shot Montesino twice (hand and leg); Montesino subsequently threw his chain, which Newbhard took.
- Newbhard was tried by jury and convicted of armed robbery, attempted felony-murder (with a firearm), and two counts of aggravated assault; sentenced to life on robbery and attempted felony-murder, concurrent five-year terms for assaults.
- The attempted felony-murder charge alleged Newbhard, while committing or attempting to commit robbery, committed an intentional act not an essential element of the robbery (shooting at Montesino) that could have caused death.
- Newbhard argued the same act (the shooting) was used to prove both the robbery’s use-of-force element and the attempted felony-murder intentional-act element, so the attempted felony-murder conviction must be vacated.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Newbhard) | Held |
|---|---|---|---|
| Whether the State relied on the same intentional act to prove attempted felony-murder and the underlying robbery, violating § 782.051(1) | Multiple separate acts of force established the robbery/attempted robbery (pointing gun, grabbing daughter, grabbing Garcia); therefore shooting was a separate intentional act supporting attempted felony-murder | The shooting was the very use of force "in the course of the taking," so it was an essential element of robbery and cannot also serve as the independent intentional act for attempted felony-murder | Affirmed: shooting was a distinct intentional act from earlier acts that satisfied robbery/attempted robbery; attempted felony-murder conviction stands |
Key Cases Cited
- Milton v. State, 161 So. 3d 1245 (Fla. 2014) (held a single act of discharging a firearm that was an essential element of the underlying attempted murder could not separately support attempted felony-murder)
- Coicou v. State, 867 So. 2d 409 (Fla. 3d DCA 2003) (holding where force occurred after voluntary transfer of property and was thus the essential element of the robbery, attempted felony-murder conviction could not stand)
- Williams v. State, 182 So. 3d 11 (Fla. 3d DCA 2015) (held a later shooting was a distinct intentional act from earlier pointing/demanding and could support attempted felony-murder)