Presley v. State

District Court of Appeal of Florida

Presley v. State

682 So. 2d 601, 1996 Fla. App. LEXIS 11134, 1996 WL 613442

CourtDistrict Court of Appeal of Florida

DecidedOctober 25, 1996

DocketNo. 95-03055

StatusPublished

This text of 682 So. 2d 601 (Presley v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Presley v. State, 682 So. 2d 601, 1996 Fla. App. LEXIS 11134, 1996 WL 613442 (Fla. Ct. App. 1996).

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Opinion

BLUE, Judge.

Craig R. Presley appeals Ms convictions for attempted tMrd-degree murder and armed burglary. We reverse Presley’s attempted third-degree murder conviction because it is a nonexistent crime. State v. Gray, 654 So.2d 552 (Fla.1995). We remand for retrial on any lesser offense instructed on at trial. State v. Wilson, 680 So.2d 411 (Fla.1996).

We also reverse and remand for a new trial on the armed burglary conviction. When instructing the jury, the trial court included attempted third-degree murder as one of the crimes forming an element of the crime of armed burglary. The jury’s verdict contained no indication of wMch crime the jury predicated its determination of guilt upon. Because it is impossible to determine on which theory, including attempted third-degree murder, the jury used to base the armed burglary conviction, we are compelled to reverse. See Mills v. Maryland, 486 U.S. 367, 376, 108 S.Ct. 1860, 1866, 100 L.Ed.2d 384, 395 (1988); Tape v. State, 661 So.2d 1287 (Fla. 4th DCA 1995).

Reversed and remanded.

ALTENBERND, A.C.J., and FULMER, J., concur.

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BLUE, Judge.

Craig R. Presley appeals Ms convictions for attempted tMrd-degree murder and armed burglary. We reverse Presley’s attempted third-degree murder conviction because it is a nonexistent crime. State v. Gray, 654 So.2d 552 (Fla.1995). We remand for retrial on any lesser offense instructed on at trial. State v. Wilson, 680 So.2d 411 (Fla.1996).

We also reverse and remand for a new trial on the armed burglary conviction. When instructing the jury, the trial court included attempted third-degree murder as one of the crimes forming an element of the crime of armed burglary. The jury’s verdict contained no indication of wMch crime the jury predicated its determination of guilt upon. Because it is impossible to determine on which theory, including attempted third-degree murder, the jury used to base the armed burglary conviction, we are compelled to reverse. See Mills v. Maryland, 486 U.S. 367, 376, 108 S.Ct. 1860, 1866, 100 L.Ed.2d 384, 395 (1988); Tape v. State, 661 So.2d 1287 (Fla. 4th DCA 1995).

Reversed and remanded.

ALTENBERND, A.C.J., and FULMER, J., concur.

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Bluebook (online)

682 So. 2d 601, 1996 Fla. App. LEXIS 11134, 1996 WL 613442, Counsel Stack Legal Research, https://law.counselstack.com/opinion/presley-v-state-fladistctapp-1996.

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