State v. Aciego

691 So. 2d 1155, 1997 Fla. App. LEXIS 4185, 1997 WL 194804

• Court: District Court of Appeal of Florida
• Decided: April 23, 1997
• Docket: No. 96-2253
• Status: Published

Opinion

PER CURIAM.

The Appellee/Defendant filed a motion for post-conviction relief alleging several grounds. The trial court denied most of the motion but granted the defendant’s request for an evidentiary hearing on his claim of ineffective assistance of counsel. Ultimately, this claim was also denied. During the hearing, the defendant moved ore tenus to vacate his conviction and sentence for the crime of attempted third degree felony murder. Relying on this court’s decision in Woodley v. State, 673 So.2d 127 (Fla. 3d DCA 1996), the trial judge concluded that the holding of State v. Gray, 654 So.2d 552 (Fla.1995), was retroactive and granted the defendant’s motion. The order vacating the defendant’s conviction was entered on July 24, 1996.

On April 3, 1997, the Supreme Court of Florida reversed our holding in Woodley¹ and held that their holding in Gray is not retroactive. Accordingly, we reverse the ruling of the trial judge and remand with directions that the defendant’s conviction and sentence for attempted third degree murder be reinstated.

Reversed.

1 . State v. Woodley, 22 Fla. L. Weekly S174, State v. Woodley, 22 Fla. L. Weekly S174, — So.2d State v. Woodley, 22 Fla. L. Weekly S174, — [1997 WL 151879] (Fla. Apr. 3, 1997).