State v. GrayState v. Gray
We have for review Gray v. State, 654 So.2d 934 (Fla. 3rd DCA 1994), in which the district court certified this question as one of great public importance:
WHETHER THE “OVERT ACT” REFERRED TO IN AMLOTTE v. STATE, 456 So.2d 448, 449 (Fla. 1984), INCLUDES ONE, SUCH AS FLEEING, WHICH IS INTENTIONALLY COMMITTED BUT IS NOT INTENDED TO KILL OR INJURE ANOTHER?
We have jurisdiction based on
Gray also argues that this Court should reexamine its decision in Amlotte. Because we have jurisdiction based on the certified question, we also have jurisdiction over this issue. Feller v. State, 637 So.2d 911, 914 (Fla. 1994).
We find it unnecessary to answer the certified question because we recede from
The relevant facts of this case are that Gray and two codefendants robbed a restaurant in Dade County and fled by car. After police spotted the car, the driver went through a red light and hit another car. The driver of the other car was ejected and rendered a quadriplegic. Gray was convicted of armed robbery with a firearm and attempted first-degree felony murder.
On appeal, the Third District Court of Appeal affirmed the robbery conviction, reversed the attempted first-degree felony murder conviction, and remanded the case for resentencing. Gray, 654 So.2d at 935.
The district court acknowledged that this Court recognized the offense of attempted felony murder in Amlotte. Id. Gray did not dispute that he perpetrated the enumerated felony of robbery. But the district court agreed with Gray that the information charging him did not allege and the State did not offer proof of a separate overt act which could, but did not, cause the death of another. Id.
The court found insufficient evidence to present a jury question of whether the overt act — running the red light, which resulted in the collision — could have caused the victim‘s death and reversed Gray‘s conviction for attempted first-degree felony murder. Id. 654 So.2d at 935. The court also certified the question to this Court. Id. at 936.
In Amlotte, we determined by a five-to-two vote that there is a criminal offense of attempted felony murder. 456 So.2d at 449. The essential elements of the crime are (1) perpetrating, or attempting to perpetrate an enumerated felony and, (2) during the commission of the enumerated felony, committing an intentional overt act, or aiding and abetting the commission of an intentional overt act, which could, but does not, cause the death of another. Id. We held that because the attempt occurs during the commission of a felony, the law, as it does under the felony murder doctrine, presumes the existence of the specific intent required to prove attempt. Id. at 449-50.
Justice Overton maintained in a dissent that the crime of attempted felony murder is logically impossible. Id. at 450 (Overton, J., dissenting). He pointed out that a conviction for the offense of attempt requires proof of the specific intent to commit the underlying crime. Id.; see also
We now believe that the application of the majority‘s holding in Amlotte has proven more troublesome than beneficial and that Justice Overton‘s view is the more logical and correct position.
Recently, the Committee on Standard Jury Instructions in Criminal Cases, which was charged with recommending amendments to various criminal instructions, reported difficulty in drafting an amendment that incorporated the language of Amlotte. In fact, a majority of the committee members believed that there could be no crime of attempted felony murder. Standard Jury Instructions in Criminal Cases (93-1), 636 So.2d 502 n. 1 (Fla. 1994).2
In addition, questioning at oral argument in the instant case indicated difficulties with determining what constitutes an “overt act” that could, but does not, cause the death of another.
Although receding from a decision is not something we undertake lightly, we find that twenty-twenty hindsight has shown difficulties with applying Amlotte that twenty-twenty foresight could not predict. Based on these difficulties, we are convinced that we must recede from Amlotte. The legal fictions required to support the intent for felony murder are simply too great.
In reaching this decision, we are mindful of the importance of the doctrine of stare decisis. Stare decisis provides stability to the law and to the society governed by that law. State v. Schopp, 653 So.2d 1016 (Fla. 1995) (Harding, J., dissenting). Yet stare decisis does not command blind allegiance to precedent. “Perpetrating an error in legal thinking under the guise of stare decisis serves no one well and only undermines the integrity and credibility of the court.” Smith v. Department of Ins., 507 So.2d 1080, 1096 (Fla. 1987) (Ehrlich, J., concurring in part, dissenting in part).
Accordingly, we recede from the holding in Amlotte that there is a crime of attempted felony murder in Florida. This decision must be applied to all cases pending on direct review or not yet final. Smith v. State, 598 So.2d 1063, 1066 (Fla. 1992). Having reached this decision, we do not need to answer the certified question in Gray.
We also approve the result in Gray, where the district court affirmed Gray‘s robbery conviction, reversed his attempted first-degree felony murder conviction, and remanded for resentencing.
It is so ordered.
GRIMES, C.J., and OVERTON, SHAW, KOGAN, WELLS and ANSTEAD, JJ., concur.