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Weatherspoon v. State

Supreme Court of Florida

April 6, 2017

CALVIN WEATHERSPOON, Petitioner,
v.
STATE OF FLORIDA, Respondent.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.

         Application for Review of the Decision of the District Court of Appeal - Certified Great Public Importance Palm Beach County, Fourth District - Case No. 4D12-2775

          Ira D. Karmelin, West Palm Beach, Florida, for Petitioner

          Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Celia A. Terenzio, Bureau Chief, and Don M. Rogers, Assistant Attorney General, West Palm Beach, Florida, for Respondent

          PARIENTE, J.

         The issue before this Court is whether the State is entitled to a jury instruction and to argue to the jury the statutory crime of attempted felony murder under section 782.051, Florida Statutes (2016), when the State charges only attempted murder and does not charge or allege the elements of attempted felony murder in the charging document. Although the Fourth District Court of Appeal determined that no due process violation occurred by the failure to charge attempted felony murder, it recognized that the issue was one that should be resolved by this Court and certified the following question of great public importance:

IN LIGHT OF THE LEGISLATURE'S CREATION OF SECTION 782.051, WHICH CREATED A CRIME CALLED "ATTEMPTED FELONY MURDER, " THAT WAS PREVIOUSLY DECLARED BY STATE V. GRAY, 654 So.2d 552 (Fla. 1995), TO BE A NONEXISTENT CRIME UNDER SECTION 782.04(1)(A), DOES THE STATE NEED TO SPECIFICALLY ALLEGE THE ELEMENTS OF AND CITE TO SECTION 782.051 OR DOES AN ALLEGATION OF ATTEMPTED PREMEDITATED MURDER AUTOMATICALLY INCLUDE ATTEMPTED FELONY MURDER, JUST AS AN INDICTMENT FOR PREMEDITATED MURDER AUTOMATICALLY INCLUDES FELONY MURDER?

Weatherspoon v. State, 191 So.3d 481, 481 (Fla. 4th DCA 2015). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

         We conclude that the Fourth District's reliance on this Court's precedent in the felony murder and first-degree premeditated murder context was misplaced because attempted felony murder and attempted premeditated murder are now distinct crimes with different elements and punishments.[1] Because the statutory crime of attempted felony murder is a crime separate from attempted premeditated murder with different elements and different punishments, the State must charge the crime of attempted felony murder in order to be entitled to a jury instruction on that crime and proceed under that theory. The failure to properly charge the defendant with the crimes that the State is pursuing is both a violation of article I, section 16, of the Florida Constitution and, as applied to this case, a violation of defendant's right to notice of the charges against him so as to provide the defendant with due process of law under article I, section 9, of the Florida Constitution.

         We agree with Judge Warner's analysis in her dissent in Weatherspoon v. State, 194 So.3d 341, 341-48 (Fla. 4th DCA 2015), and answer the certified question in the affirmative, quash the decision below in Weatherspoon, and disapprove of the decisions of the Fourth District Court of Appeal in Dempsey v. State, 72 So.3d 258 (Fla. 4th DCA 2011), and the Fifth District Court of Appeal in Florence v. State, 128 So.3d 198 (Fla. 5th DCA 2013), to the extent they are inconsistent with this opinion. We remand this case to the district court for further proceedings consistent with this opinion.[2]

          FACTS

         Weatherspoon, along with four codefendants, was charged with the November 2008 robbery of a Dunkin' Donuts in Delray Beach, Florida. During the course of the robbery, one of the codefendants shot two people in the store and one in the parking lot. All four codefendants were charged pursuant to a single information containing multiple counts, including attempted first-degree murder with a firearm, robbery with a firearm, aggravated assault with a firearm, and possession of a firearm while committing false imprisonment. With respect to the three counts of attempted first-degree murder, the information alleged:

JAMES HERARD and/or CALVIN LEE WEATHERSPOON, IV and/or CHARLES LUKE FAUSTIN and/or THAROD BELL . . . did unlawfully attempt to commit from a premeditated design, effect the death of a human being, kill and murder [each of the three victims], a human being, an offense prohibited by law, and in such attempt did an act toward the commission of such offense by shooting [each of the three victims], but JAMES HERARD and/or CALVIN LEE WEATHERSPOON, IV and/or CHARLES LUKE FAUSTIN and/or THAROD BELL failed in the perpetration or was intercepted or prevented in the execution of said offense, and during the commission or attempt to commit any offense listed in Florida Statute 775.087(2)(a) 1, JAMES HERARD and/or CALVIN LEE WEATHERSPOON, IV and/or CHARLES LUKE FAUSTIN and/or THAROD BELL actually possessed a firearm or destructive device as those terms are defined in section 790.001, Florida Statutes, and further during the course of committing or attempting to commit any offense listed in Florida Statute 775.087(2)(a) 1, JAMES HERARD and/or CALVIN LEE WEATHERSPOON, IV and/or CHARLES LUKE FAUSTIN and/or THAROD BELL discharged a firearm or destructive device as defined in section 790.001, Florida Statutes, and, as the result of the discharge, death or great bodily harm was inflicted upon [each of the three victims], contrary to Florida Statutes 777.04(1) and 782.04(1)(a)(2) and 775.087(2)(a)(1) and 775.087(2)(a)(2) and 775.087(2)(a)(3).

         Weatherspoon was tried by the same prosecutors as his codefendant, Bell, but before separate juries.

         During his opening statement, Weatherspoon's attorney argued that Weatherspoon had no idea that codefendant Herard intended to shoot or kill anyone during the robbery, while the State countered, stating that Weatherspoon knew one of the reasons for the robbery was to give Herard a chance to kill people as part of a "body count competition." The issue of whether the State could pursue an attempted felony murder theory as well as the theory of attempted first-degree premeditated murder was first raised following the opening statements and addressed again when the parties began to address jury instructions for both trials. Both Weatherspoon and Bell objected to the State's proffered jury instruction on attempted felony murder, arguing that the crime was not pled in the information.

         The trial court overruled the objections and gave the following jury instruction on attempted felony murder:

There are 2 ways in which a person may be convicted of Attempted First Degree Murder. One is known as Premeditated Murder, and the other is known as Felony Murder.
. . . .
To prove the crime of Attempted First Degree Felony Murder, the State must prove the following (3) elements beyond a reasonable doubt:
1. Calvin Lee Weatherspoon committed or attempted to commit a Robbery.
2. While engaged in the commission, attempted commission or escape from the immediate scene of a Robbery, the Defendant committed or aided or abetted an intentional act that is not an essential element of the Robbery.
3. The intentional act could have but did not cause the death of [the victim].
Robbery is defined by Florida law as the taking of money or other property which may be the subject of larceny from the person or custody of another with the intent to either permanently or temporarily deprive the person or the owner of the money or other property when in the course of the taking there was a use of force, violence, assault, or putting in fear.
In order to convict Calvin Lee Weatherspoon of Attempted Felony Murder, it is not necessary for the State to prove that he had a ...

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