Moore v. State

78 So. 3d 118, 2012 Fla. App. LEXIS 1118, 2012 WL 254966

Opinion

PER CURIAM.

Appellant, a juvenile who was prosecuted as an adult, challenges his criminal conviction and prison sentence for attempted voluntary manslaughter on the following two grounds: (1) he was convicted of a nonexistent offense because attempted voluntary manslaughter by act is not a cognizable offense in Florida after our supreme court in State v. Montgomery, 39 So.3d 252 (Fla.2010), held that manslaughter by act does not require proof of intent to kill; and (2) the trial court violated Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when it sentenced him to prison without the jury finding beyond a reasonable doubt that the public interest required the imposition of adult sanctions. We reject appellant’s second claim based upon our decision in Kirkland v. State, 67 So.3d 1147 (Fla. 1st DCA 2011). We also reject appellant’s first claim based upon binding precedent in Taylor v. State, 444 So.2d 931 (Fla.1983). However, as in Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), review granted, 64 So.3d 1262 (Fla.2011), and Minnich v. State, — So.3d -, 2011 WL 265765 (Fla. 1st DCA 2011), we certify the following question of great public importance: Is attempted manslaughter a viable offense in light of State v. Montgomery, 39 So.3d 252 (Fla. 2010)?

AFFIRMED; QUESTION CERTIFIED.

PADOVANO and SWANSON, JJ., and LEWIS, TERRY P., Associate Judge, concur.