final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County Lower
Tribunal No. 12-7548B, Maria Elena Verde, Judge.
J. Martinez, Public Defender, and Marti Rothenberg and
Jeffrey Paul DeSousa, Assistant Public Defenders, for
Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant
Attorney General, for appellee.
SALTER, EMAS and LOGUE, JJ.
Newbhard was convicted by a jury of the crimes of attempted
felony-murder, robbery with a firearm, and aggravated assault
(two counts). In this appeal, Newbhard contends that the
trial court erred in denying his motion for judgment of
acquittal on the charge of attempted felony-murder because
the State relied upon the same act to prove both the
attempted felony-murder and the underlying robbery offense.
We affirm, because the State established at trial that the
attempted felony-murder included an intentional act that was
not an essential element of the underlying robbery offense.
evidence at trial, in a light most favorable to upholding the
jury's verdict, established the following:
night of March 21, 2012, David Montesino, his girlfriend
Janette Garcia, and their six-year old daughter were leaving
their third-floor apartment to get something to eat.
Montesino began walking down the stairs with his daughter,
with Garcia not far behind. When Montesino reached the bottom
of the stairs and began walking towards his car, he was
approached by Newbhard, who was pointing a gun at him and
demanding Montesino hand over the gold chain around
Montesino's neck. Montesino took several steps back, at
which time Newbhard grabbed Montesino's daughter, pointed
the gun to her head, and demanded that Montesino hand over
his chain. When Montesino confronted Newbhard, Newbhard
released the daughter.
point, Garcia had reached the bottom of the stairs, and
Newbhard grabbed Garcia and pointed the gun to her head,
again demanding that Montesino hand over his chain. Montesino
agreed to give Newbhard his chain and, as he took off the
chain and held it in his hand, Newbhard released Garcia.
and Montesino continued to argue and, during this time,
Montesino knocked Newbhard's hat off his head, allowing
Montesino a clear view of Newbhard's face. Thereafter,
Montesino began to run, but Newbhard shot Montesino
twice-once in the hand and once in the leg. After Montesino
was shot, and while still running away from Newbhard,
Montesino threw his gold chain at Newbhard. Newbhard then
fled the scene with Montesino's gold chain. Montesino
survived his injuries, and both he and Garcia identified
Newbhard as the perpetrator.
was arrested and charged by amended information with,
inter alia, armed robbery of Montesino; attempted
felony-murder with a deadly weapon upon Montesino; aggravated
assault with a firearm upon the daughter; and aggravated
assault with a firearm upon Garcia.
a jury trial, Newbhard was convicted of all counts. The trial
court adjudicated Newbhard guilty and sentenced him to life
in prison on the armed robbery and the attempted
felony-murder and to five years in prison for each aggravated
assault, all sentences to run concurrently. This appeal
first to the relevant language of the felony-murder and
robbery statutes, as well as the allegations contained in the
information. We then consider the evidence presented at trial
to determine whether, as Newbhard asserts, the State relied
upon the same ...