final until disposition of timely filed motion for rehearing.
of order denying rule 3.850 motion from the Circuit Court for
the Fifteenth Judicial Circuit, Palm Beach County; John S.
Kastrenakes, Judge; L.T. Case No. 50-2008-CF-009942-BXXX-MB.
David Johnson, Miami, pro se.
Moody, Attorney General, Tallahassee, and Deborah Koenig,
Assistant Attorney General, West Palm Beach, for appellee.
Johnson appeals the summary denial of his untimely motion for
post-conviction relief filed pursuant to Florida Rule of
Criminal Procedure 3.850(b)(2). Appellant argues that his
attempted first-degree murder conviction should be vacated
pursuant to Weatherspoon v. State, 214 So.3d 578
(Fla. 2017). We affirm. However, we certify a question of
great public importance.
2008, the State charged Appellant, along with a co-defendant,
with attempted first-degree murder and robbery with a
firearm. At trial, the State argued theories of both
attempted first-degree murder and attempted first-degree
felony murder to support a conviction for attempted
first-degree murder. The court also provided a jury
instruction for attempted first-degree felony murder. The
jury convicted Appellant as charged on both counts. Appellant
is currently serving a life sentence for his convictions.
underlying proceedings, Appellant filed a successive and
untimely motion for post-conviction relief. Appellant
contended that his motion was timely under Florida Rule of
Criminal Procedure 3.850(b)(2)due to a recent change in law
pursuant to Weatherspoon. In Weatherspoon,
the Florida Supreme Court held that the State must charge the
crime of attempted felony murder to be entitled to a jury
instruction on that crime and to proceed under that theory.
214 So.3d at 589. The court concluded that a defendant is
denied due process when there is a "conviction on a
charge not made in the information or indictment."
Id. at 583. However, the court noted that
"[o]ur precedent does not make the failure to charge per
se reversible," and '"[g]enerally the test for
granting relief based on a defect in the information is
actual prejudice to the fairness of the trial."'
Id. at 584 (quoting Price v. State, 995
So.2d 401, 404 (Fla. 2008)).
argued in his post-conviction motion that, based on
Weatherspoon, he was entitled to a new trial because
the State used an attempted felony murder theory at trial
without charging attempted felony murder in the information.
The trial court denied Appellant's motion and adopted the
State's response that Appellant's motion was untimely
and the Florida Supreme Court has not held that
Weatherspoon applies retroactively. This appeal
the Florida Supreme Court has not held that
Weatherspoon applies retroactively, we conclude that
the trial court did not err by denying Appellant's motion
as untimely. However, we note that although
Weatherspoon stated that the failure to charge is
not "per se reversible," the Florida Supreme Court
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.
Id. at 580 (emphasis added).
therefore certify the following question of great public
DOES THE CHANGE IN DECISIONAL LAW ANNOUNCED IN
WEATHERSPOON V. STATE, 214 SO. 3D 578 (FLA. 2017),
APPLY RETROACTIVELY TO CONVICTIONS THAT WERE FINAL AT ...