Chastine v. State

691 So. 2d 487, 1997 Fla. App. LEXIS 978, 1997 WL 55624

• Court: District Court of Appeal of Florida
• Decided: February 12, 1997
• Docket: No. 95-3384
• Status: Published

Opinion

PARIENTE, Judge.

Defendant was convicted of armed robbery and first-degree murder of Marc Nadeau and attempted first-degree murder with a firearm of Armand Nadeau, father of Mare. Defendant received consecutive life sentences with thirty years concurrent for the robbery. After carefully considering all of the points raised by defendant on appeal, we affirm defendant’s convictions and sentences for armed robbery and first-degree murder of Marc Nadeau.

Pursuant to the authority of State v. Gray, 654 So.2d 552 (Fla.1995), we are compelled to reverse defendant’s conviction for attempted first-degree murder of Armand Nadeau. Defendant’s conviction for this crime was predicated solely on attempted felony murder, a crime which is no longer recognized in Florida. See id. At trial, the state never argued nor presented evidence of premeditated murder, and the trial court did not instruct on premeditated murder.

The appropriate remedy, however, is not to discharge defendant on this conviction. See State v. Wilson, 680 So.2d 411 (Fla.1996). Having examined the actual jury instructions given in this ease, as we are required to do, we conclude that the proper remedy on remand is to retry defendant on attempted manslaughter with a firearm of Armand Na-deau and any lesser included offenses instructed on at trial. See id.

POLEN and SHAHOOD, JJ., concur.