Supreme Court of Florida
____________
No. SC15-1542
____________
CALVIN WEATHERSPOON,
Petitioner,
vs.
STATE OF FLORIDA,
Respondent.
[April 6, 2017]
PARIENTE, J.
The issue before this Court is whether the State is entitled to a jury
instruction and to argue to the jury the statutory crime of attempted felony murder
under section 782.051, Florida Statutes (2016), when the State charges only
attempted murder and does not charge or allege the elements of attempted felony
murder in the charging document. Although the Fourth District Court of Appeal
determined that no due process violation occurred by the failure to charge
attempted felony murder, it recognized that the issue was one that should be
resolved by this Court and certified the following question of great public
importance:
IN LIGHT OF THE LEGISLATURE’S CREATION OF SECTION
782.051, WHICH CREATED A CRIME CALLED “ATTEMPTED
FELONY MURDER,” THAT WAS PREVIOUSLY DECLARED BY
STATE V. GRAY, 654 So. 2d 552 (Fla. 1995), TO BE A
NONEXISTENT CRIME UNDER SECTION 782.04(1)(A), DOES
THE STATE NEED TO SPECIFICALLY ALLEGE THE
ELEMENTS OF AND CITE TO SECTION 782.051 OR DOES AN
ALLEGATION OF ATTEMPTED PREMEDITATED MURDER
AUTOMATICALLY INCLUDE ATTEMPTED FELONY
MURDER, JUST AS AN INDICTMENT FOR PREMEDITATED
MURDER AUTOMATICALLY INCLUDES FELONY MURDER?
Weatherspoon v. State, 191 So. 3d 481, 481 (Fla. 4th DCA 2015). We have
jurisdiction. See art. V, § 3(b)(4), Fla. Const.
We conclude that the Fourth District’s reliance on this Court’s precedent in
the felony murder and first-degree premeditated murder context was misplaced
because attempted felony murder and attempted premeditated murder are now
distinct crimes with different elements and punishments.1 Because the statutory
crime of attempted felony murder is a crime separate from attempted premeditated
murder with different elements and different punishments, the State must charge
the crime of attempted felony murder in order to be entitled to a jury instruction on
that crime and proceed under that theory. The failure to properly charge the
1. Weatherspoon’s codefendant, Tharod Bell, also sought review of the
decision of the Fourth District in his case, Bell v. State, 152 So. 3d 714 (Fla. 4th
DCA 2014). This Court has accepted jurisdiction of Bell’s review proceeding,
Case No. SC15-245 (Fla. notice invoking discretionary jurisdiction filed Feb. 10,
2015), and the case is currently stayed pending the disposition of the instant case.
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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.
We agree with Judge Warner’s analysis in her dissent in Weatherspoon v.
State, 194 So. 3d 341, 341-48 (Fla. 4th DCA 2015), and answer the certified
question in the affirmative, quash the decision below in Weatherspoon, and
disapprove of the decisions of the Fourth District Court of Appeal in Dempsey v.
State, 72 So. 3d 258 (Fla. 4th DCA 2011), and the Fifth District Court of Appeal in
Florence v. State, 128 So. 3d 198 (Fla. 5th DCA 2013), to the extent they are
inconsistent with this opinion. We remand this case to the district court for further
proceedings consistent with this opinion.2
2. Weatherspoon also briefed an additional issue of whether Weatherspoon
unequivocally invoked his right to counsel, such that the trial court’s admission of
his statements to the police was in error. We exercise our discretion and decline to
address this issue that is outside the scope of the certified question. See Fla. R.
App. P. 9.030(a)(2)(A)(v); Campbell v. State, 125 So. 3d 733, 734 n.1 (Fla. 2013)
(declining to address issue beyond the basis of the Court’s conflict jurisdiction);
Paulucci v. Gen. Dynamics Corp., 842 So. 2d 797, 803 n.6 (Fla. 2003) (declining
to address issues outside of the scope of the certified question).
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FACTS
Weatherspoon, along with four codefendants, was charged with the
November 2008 robbery of a Dunkin’ Donuts in Delray Beach, Florida. During
the course of the robbery, one of the codefendants shot two people in the store and
one in the parking lot. All four codefendants were charged pursuant to a single
information containing multiple counts, including attempted first-degree murder
with a firearm, robbery with a firearm, aggravated assault with a firearm, and
possession of a firearm while committing false imprisonment. With respect to the
three counts of attempted first-degree murder, the information alleged:
JAMES HERARD and/or CALVIN LEE WEATHERSPOON, IV
and/or CHARLES LUKE FAUSTIN and/or THAROD BELL . . . did
unlawfully attempt to commit from a premeditated design, effect the
death of a human being, kill and murder [each of the three victims], a
human being, an offense prohibited by law, and in such attempt did an
act toward the commission of such offense by shooting [each of the
three victims], but JAMES HERARD and/or CALVIN LEE
WEATHERSPOON, IV and/or CHARLES LUKE FAUSTIN and/or
THAROD BELL failed in the perpetration or was intercepted or
prevented in the execution of said offense, and during the commission
or attempt to commit any offense listed in Florida Statute
775.087(2)(a) 1, JAMES HERARD and/or CALVIN LEE
WEATHERSPOON, IV and/or CHARLES LUKE FAUSTIN and/or
THAROD BELL actually possessed a firearm or destructive device as
those terms are defined in section 790.001, Florida Statutes, and
further during the course of committing or attempting to commit any
offense listed in Florida Statute 775.087(2)(a) 1, JAMES HERARD
and/or CALVIN LEE WEATHERSPOON, IV and/or CHARLES
LUKE FAUSTIN and/or THAROD BELL discharged a firearm or
destructive device as defined in section 790.001, Florida Statutes, and,
as the result of the discharge, death or great bodily harm was inflicted
upon [each of the three victims], contrary to Florida Statutes
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777.04(1) and 782.04(1)(a)(2) and 775.087(2)(a)(1) and
775.087(2)(a)(2) and 775.087(2)(a)(3).
Weatherspoon was tried by the same prosecutors as his codefendant, Bell, but
before separate juries.
During his opening statement, Weatherspoon’s attorney argued that
Weatherspoon had no idea that codefendant Herard intended to shoot or kill
anyone during the robbery, while the State countered, stating that Weatherspoon
knew one of the reasons for the robbery was to give Herard a chance to kill people
as part of a “body count competition.” The issue of whether the State could pursue
an attempted felony murder theory as well as the theory of attempted first-degree
premeditated murder was first raised following the opening statements and
addressed again when the parties began to address jury instructions for both trials.
Both Weatherspoon and Bell objected to the State’s proffered jury instruction on
attempted felony murder, arguing that the crime was not pled in the information.
The trial court overruled the objections and gave the following jury
instruction on attempted felony murder:
There are 2 ways in which a person may be convicted of Attempted
First Degree Murder. One is known as Premeditated Murder, and the
other is known as Felony Murder.
....
To prove the crime of Attempted First Degree Felony Murder, the
State must prove the following (3) elements beyond a reasonable
doubt:
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1. Calvin Lee Weatherspoon committed or attempted to commit a
Robbery.
2. While engaged in the commission, attempted commission or
escape from the immediate scene of a Robbery, the Defendant
committed or aided or abetted an intentional act that is not an essential
element of the Robbery.
3. The intentional act could have but did not cause the death of [the
victim].
Robbery is defined by Florida law as the taking of money or other
property which may be the subject of larceny from the person or
custody of another with the intent to either permanently or temporarily
deprive the person or the owner of the money or other property when
in the course of the taking there was a use of force, violence, assault,
or putting in fear.
In order to convict Calvin Lee Weatherspoon of Attempted Felony
Murder, it is not necessary for the State to prove that he had a
premeditated design or intent to kill.
See Fla. Std. Jury Instr. (Crim.) 6.3.
During closing argument in Weatherspoon’s trial, the State argued both the
attempted premeditated murder theory and attempted felony murder, “instructing
the jury it could convict under either one.” Weatherspoon, 194 So. 3d at 343
(Warner, J., dissenting). During deliberations, the jury asked for “[c]larification on
Attempted 1st deg. murder and Attempted 1st deg. felony murder. Attempted 1st
deg. felony murder is not on the verdict form,” to which the prosecutor replied,
“[I]t sounds like they were probably thinking we had to delineate which one[.]” Id.
at 344. The judge told the jury to rely on the written instructions given to them.
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Id. The jury returned a verdict of guilty on all of the attempted first-degree murder
counts, and Weatherspoon was sentenced to life in prison.
The Fourth District affirmed Weatherspoon’s convictions. Weatherspoon,
194 So. 3d at 341. However, Judge Warner wrote a lengthy dissent, arguing that
even though she was on the panel affirming the conviction of the codefendant,
Bell, she now believed that the opinion was in error because attempted felony
murder is a separate crime, in a separate statute, making earlier precedent
inapplicable. Id. at 341-42 (Warner, J., dissenting). Judge Warner explained:
As attempted felony murder is now a separate crime under a
separate statute and with different elements than felony murder, the
rationale that the intent to commit the felony can substitute for the
intent to commit premeditated murder under the murder statute has no
application. Since Bell v. State, 152 So. 3d 714, 717-18 (Fla. 4th
DCA 2014), and Dempsey v. State, 72 So. 3d 258, 260-61 (Fla. 4th
DCA 2011), relied on extending the rule emanating from Sloan[ v.
State, 69 So. 971 (Fla. 1915),] and its progeny to the current attempted
felony murder statute, I would recede from the reasoning in both
cases.
In this case, the information charged Weatherspoon only with
attempted first degree premeditated murder. It did not charge him
with attempted felony murder under section 782.051. In the counts
relating to the attempted murder of the victims, the information did
not allege any of the essential facts or elements necessary to charge
the crime of attempted felony murder. Specifically, the counts for
attempted murder failed to allege either the commission of the
underlying felony (robbery), or that Weatherspoon committed, aided,
or abetted an intentional act that was not an essential element of the
underlying felony. Although the information did cite the attempt
statute, section 777.04(1), and the felony murder statute, section
782.04(1)(a) 2., this would, at best, charge the nonexistent version of
felony murder that was invalidated in Gray. Neither of these citations
were to the correct felony murder statute, section 782.051, which
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establishes a new, separate crime with additional elements not found
in either of these statutes and not alleged in the information. Given
the information’s failure to cite the correct statute, its failure [to]
allege the required statutory elements, and its reference to a
“premeditated design,” appellant rightfully understood that the
information only charged him with attempted premeditated murder .
Id. at 347.
ANALYSIS
The issue before this Court is whether the State is entitled to a jury
instruction and to argue to the jury the statutory crime of attempted felony murder,
section 782.051, Florida Statutes (2016), when the State charges only attempted
murder and does not charge or allege the elements of attempted felony murder in
the charging document. Weatherspoon objected to the charge and asserts that he
was prejudiced in his trial preparation and strategy as a result of the State’s failure
to specifically charge attempted felony murder in the information. The State
concedes in its brief that it would have been “best” to charge Weatherspoon with
the crime of attempted felony murder specifically, but contends that it was
unnecessary to do so and that any error in this case was harmless because
Weatherspoon was on notice that the State intended to proceed under the theory of
attempted felony murder.
We begin with the constitutional and procedural basis for our analysis. We
then explain the differences between the statutory crime of attempted felony
murder and the statutory crime of attempted premeditated murder and why those
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differences render any analogy to the felony murder context inapposite. Finally,
we explain why the State cannot show that Weatherspoon was not prejudiced by
the error.
Article I, section 16, of the Florida Constitution, provides: “In all criminal
prosecutions the accused shall, upon demand, be informed of the nature and cause
of the accusation, and shall be furnished a copy of the charges . . . .” This Court,
citing centuries-old United States Supreme Court precedent, has stated that “to
apprise the accused of the specific charges against him, an information or
indictment must contain all facts essential to the ‘offence intended to be
punished.’ ” Insko v. State, 969 So. 2d 992, 995 (Fla. 2007) (quoting United States
v. Carll, 105 U.S. 611, 612 (1881)). “Historically, the ‘elements of a crime’ are the
facts ‘legally essential to the punishment to be inflicted.’ ” Id. (quoting Harris v.
United States, 536 U.S. 545, 561 (2002)).
In addition to the violation of a defendant’s right to be fully informed of the
charges against him under article I, section 16, of the Florida Constitution, a
defendant’s right to due process under article I, section 9, is denied when there is a
conviction on a charge not made in the information or indictment:
Due process of law requires the State to allege every essential element
when charging a violation of law to provide the accused with
sufficient notice of the allegations against him. Art. I, § 9, Fla.
Const.; M.F. v. State, 583 So. 2d 1383, 1386-87 (Fla. 1991). There is
a denial of due process when there is a conviction on a charge not
made in the information or indictment. See [State v.] Gray, 435 So.
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2d [816,] 818 [(Fla. 1983)]; see also Thornhill v. Alabama, 310 U.S.
88 (1940); De Jonge v. Oregon, 299 U.S. 353 (1937). For an
information to sufficiently charge a crime it must follow the statute,
clearly charge each of the essential elements, and sufficiently advise
the accused of the specific crime with which he is charged. See Rosin
v. Anderson, 155 Fla. 673, 21 So. 2d 143, 144 (Fla. 1945). Generally
the test for granting relief based on a defect in the information is
actual prejudice to the fairness of the trial. See Gray, 435 So. 2d at
818 (citing Lackos v. State, 339 So. 2d 217 (Fla. 1976)).
Price v. State, 995 So. 2d 401, 404 (Fla. 2008) (some parallel citations omitted).
“[A]n information is fundamentally defective where it fails to cite a specific
section and totally omits an essential element of the crime.” Figueroa v. State, 84
So. 3d 1158, 1161 (Fla. 2d DCA 2012).
In addition to the constitutional bases of both, article I, section 16, of the
Florida Constitution pertaining specifically to the charging documents, and the
general protection of due process of law under article I, section 9, of the Florida
Constitution, the Florida Rules of Criminal Procedure address the issue
specifically. Florida Rule of Criminal Procedure 3.140(d)(1) requires that an
information allege all “essential facts” of each crime charged as well as the
statutory citation for each crime, although failure to cite to the statute cannot be a
ground for dismissal of the information or indictment or reversal of a conviction “if
the error or omission did not mislead the defendant to the defendant’s prejudice.”
Our precedent does not make the failure to charge per se reversible.
“Generally the test for granting relief based on a defect in the information is actual
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prejudice to the fairness of the trial.” Price, 995 So. 2d at 404. Due to Florida’s
liberal discovery rules, this Court has held that “an information is legally sufficient
if it expresses the elements of the offense charged in such a way that the accused is
neither misled or embarrassed in the preparation of his defense nor exposed to
double jeopardy.” State v. Dilworth, 397 So. 2d 292, 294 (Fla. 1981).
In the 1915 case of Sloan v. State, 69 So. 871 (Fla. 1915), this Court first
articulated what was constitutionally required to be charged in an indictment in the
first-degree and felony murder context. In that case a defendant charged only with
first-degree premeditated murder challenged his indictment, which did not allege
the underlying felony of the robbery of the victim. Id. at 871. This Court, after
reviewing the law of other states, agreed with the majority of states that a charge of
premeditated murder in the indictment is sufficient for the State to proceed under
either the theory of first-degree premeditated murder or felony murder. Id. at 872.
In so holding, this Court cited the opinion of the Supreme Court of Missouri in
State v. Meyers, 12 S.W. 516 (Mo. 1889), which reasoned:
An indictment in the usual form, charging murder to have been
done deliberately and premeditatedly, is sufficient under the statute to
charge murder in the first degree, regardless of whether the murder
was committed in the perpetration of a felony or otherwise. The
perpetration or attempt to perpetrate any of the felonies mentioned in
the statute, * * * during which perpetration or attempt a homicide is
committed, stands in lieu of and is the legal equivalent of that
premeditation and deliberation which otherwise are the necessary
attributes of murder in the first degree. In such case it is only
necessary to make the charge in the ordinary way for murder in the
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first degree, and show the facts in evidence, and, if they establish that
the homicide was committed in the perpetration or attempt to
perpetrate any of the felonies mentioned in the statute, this will be
sufficient.
Sloan, 69 So. at 872 (quoting Meyers, 12 S.W. at 517).
This Court has since continued to adhere to the principle of Sloan in
subsequent cases. See O’Callaghan v. State, 429 So. 2d 691, 695 (Fla. 1983);
Killen v. State, 92 So. 2d 825, 827-28 (Fla. 1957). In O’Callaghan, this Court held
that an indictment charging O’Callaghan only with premeditated murder was
legally sufficient to support his conviction for felony murder because O’Callaghan
had full knowledge of both the charges and the evidence that the State would
submit at trial. 429 So. 2d at 695. In so holding, this Court stated: “We have
previously expressly stated that ‘the state does not have to charge felony murder in
the indictment but may prosecute the charge of first-degree murder under a theory
of felony murder when the indictment charges premeditated murder.’ ” Id.
(quoting State v. Pinder, 375 So. 2d 836, 839 (Fla. 1979)).
This Court explained in Killen that a charge of first-degree premeditated
murder necessarily includes the theory of felony murder because “the perpetration,
or attempt to perpetrate, any of said felonies, during which a homicide is
committed, stands in lieu of and is the legal equivalent of premeditation, and . . . in
such cases it is only necessary to charge that the homicide was committed with a
premeditated design and then show the facts in evidence.” 92 So. 2d at 828.
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The logic of Killen, O’Callaghan, and Sloan arguably applied to the crimes
of attempted premeditated murder and attempted felony murder until this Court’s
1995 decision in State v. Gray, 654 So. 2d 552 (Fla. 1995), which held that the
crime of attempted felony murder did not exist. In that case, the Court adopted the
dissent of Justice Overton in Amlotte v. State, 456 So. 2d 448, 450-51 (Fla. 1984)
(Overton, J., dissenting), where he concluded that:
In my view, the crime of felony murder is based upon a legal
fiction which implies malice aforethought from the actor’s intent to
commit the underlying felony. Thus, whenever a person is killed
during the commission of a felony, the felon is said to have had the
intent to bring about the death even if the killing was unintended.
This doctrine has been extended to impute intent for deaths caused by
the acts of co-felons, see, e.g., Mills v. State, 407 So. 2d 218 (Fla. 3d
DCA 1981), and police, see, e.g., State v. Wright, 379 So. 2d 96 (Fla.
1979), during the perpetration of certain felonies. Further extension
of the felony murder doctrine so as to make intent irrelevant for
purposes of the attempt crime is illogical and without basis in law.
After Gray, the Legislature created a statutory crime of attempted felony
murder. This Court described the Legislature’s enactment of the crime of
attempted felony murder post-Gray:
“The Legislature in 1996, in response to our decision in Gray, enacted
section 782.051, which created the offense of ‘Felony causing bodily
injury.’ See ch. 96-359, § 1, at 2052, Laws of Fla.” Coicou v. State,
39 So. 3d 237, 240 (Fla. 2010).
In 1998, however, the Legislature substantially rewrote section
782.051 and retitled it “Attempted felony murder.” See ch. 98-204,
§ 12, at 1970, Laws of Fla. In this amendment, in order to avoid the
problems set forth in Gray, the Legislature added an additional
element to the crime—that the defendant commit an “intentional act
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that is not an essential element of the felony and that could, but does
not, cause the death of another.” Id.
Milton v. State, 161 So. 3d 1245, 1248 (Fla. 2014). Currently, section 782.051(1),
Florida Statutes (2016), states:
Any person who perpetrates or attempts to perpetrate any
felony enumerated in s. 782.04(3) and who commits, aids, or abets an
intentional act that is not an essential element of the felony and that
could, but does not, cause the death of another commits a felony of
the first degree . . . .
The State argues that the Killen, O’Callaghan, and Sloan line of cases should
be extended to the crimes of attempted first-degree premeditated murder and
attempted felony murder, regardless of this Court’s opinion in Gray and the
subsequent enactment of section 782.051. This was also the approach taken by the
Fourth District in Bell, relying on its previous holding in Dempsey. In Dempsey,
the Fourth District applied this Court’s holding in O’Callaghan to the crime of
attempted felony murder without any discussion or reasoning as to why that
holding applied in light of the Legislature’s creation of the completely new and
separate crime of attempted felony murder in section 782.051, Florida Statutes.
See 72 So. 3d at 260-61. Bell simply cited to Dempsey without any further
comment. See 152 So. 3d at 717.
The Fifth District has also taken this position in Florence v. State, 128 So.
3d 198 (Fla. 5th DCA 2013). In that case the defendant argued that the trial court
committed fundamental error and violated his state and federal constitutional rights
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to due process by instructing the jury on the uncharged offense of attempted felony
murder. Florence, 128 So. 3d at 198. The Fifth District affirmed the conviction
citing to the Fourth District’s opinion in Dempsey with no other discussion. See
id. at 199.
We conclude, as expressed in Judge Warner’s dissent in Weatherspoon, that
the Fourth District’s holdings in Bell and Dempsey and the Fifth District’s holding
in Florence are a misapplication of this Court’s precedent in Sloan, Killen, and
O’Callaghan. While the reasoning of those cases may have applied to the crime of
attempted felony murder prior to Gray, the enactment of the entirely new crime of
attempted felony murder in a completely separate statute with different essential
elements and a more severe punishment now makes those cases inapplicable.
The basis of this Court’s reasoning in the Sloan line of cases was that the
crimes of first-degree premeditated murder and felony murder were in the same
statute and simply different theories the State might assert in its attempt to prove
first-degree premeditated murder. In other words, the crime of felony murder is
included in the current first-degree murder statute. See § 782.04(1)(a) 2., Fla. Stat.
(2016). Because the State can prove premeditation by either showing direct
premeditation or imputed premeditation through the underlying felony, charging
premeditated murder and citing that statute is enough to put a defendant on notice
that the State might pursue the theory of felony murder.
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The analogy to premeditated murder and felony murder no longer exists in
the attempted premeditated murder and attempted felony murder context. The
crime of attempted premeditated murder is codified in section 782.04 (Murder),
and section 777.04 (Attempts, solicitation, and conspiracy), while the crime of
attempted felony murder is now codified in section 782.051 (Attempted felony
murder).
Unlike attempted premeditated murder, the crime of attempted felony
murder now contains an essential element not present in the crime of attempted
premeditated murder: the commission of an intentional act that is not an essential
element of the felony. § 782.051(1)-(2), Fla. Stat. (2016). Accordingly, neither
citing the statutes for the crime of attempted premeditated murder, nor describing
the essential elements of that crime would be sufficient to put a defendant on
notice of all of the essential elements of the crime of attempted felony murder as
codified in section 782.051.
Finally, the crimes of attempted felony murder and attempted premeditated
murder no longer have the same punishment. Because premeditated murder is a
capital offense, the attempt to commit the capital offense is a first-degree felony,
which is punishable by no more than thirty years’ imprisonment. §§ 777.04(4)(b),
775.082(3)(b), 782.04(1)(a), Fla. Stat. (2016). However, attempted felony murder
is a first-degree felony which carries the potential sentence of life imprisonment.
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§ 782.051(1), Fla. Stat. (2016). As such, attempted felony murder has a greater
punishment than attempted premeditated murder, causing it to be, if included in the
crime of attempted premeditated murder as the State argues, not a lesser, but a
greater included offense. See Sanders v. State, 944 So. 2d 203, 206 (Fla. 2006)
(explaining that lesser included offenses fall into two categories, necessary and
permissive: necessarily included lesser offenses are those offenses in which the
statutory elements of the lesser included offense are always subsumed within those
of the charged offense, while a permissive lesser included offense exists when the
two offenses appear to be separate but the facts alleged in the pleadings are such
that the lesser offense cannot help but be perpetrated once the greater offense has
been); see also State v. Baker, 456 So. 2d 419, 422 (Fla. 1984) (“ ‘Lesser included
offense’ in regard to jury alternatives . . . implements the nonconstitutional right of
an accused to a instruction which gives the jury an opportunity to convict of an
offense with less severe punishment than the crime charged.”).
Accordingly, because the statutory crime of attempted felony murder
contains different elements than the crime of attempted premeditated murder, the
crimes are contained in different statutory sections, and are subject to different
punishments, the reasoning of our case law regarding premeditated murder and
felony murder is inapposite, as Judge Warner explained in her dissent:
Specifically, the counts for attempted murder failed to allege either
the commission of the underlying felony (robbery), or that
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Weatherspoon committed, aided, or abetted an intentional act that was
not an essential element of the underlying felony. Although the
information did cite the attempt statute, section 777.04(1), and the
felony murder statute, section 782.04(1)(a) 2., this would, at best,
charge the nonexistent version of felony murder that was invalidated
in Gray. Neither of these citations were to the correct felony murder
statute, section 782.051, which establishes a new, separate crime with
additional elements not found in either of these statutes and not
alleged in the information.
Weatherspoon, 194 So. 3d at 347 (Warner, J., dissenting). Thus, it is error for the
State to proceed under the alternative theory of attempted felony murder after
charging a defendant with only attempted premeditated murder in the information,
and it violates the defendant’s right to be fully informed of the charges against him.
This Case
In this case, the State charged Weatherspoon only with attempted first-
degree premeditated murder. The charging document did not include attempted
felony murder under section 782.051. In the counts relating to the attempted
murder of the victims, the information did not allege any of the essential facts or
elements necessary to charge the crime of attempted felony murder. Specifically,
the information failed to allege either the commission of the underlying felony
(robbery), or that Weatherspoon committed, aided, or abetted an intentional act
that was not an essential element of the underlying felony. Rather, the information
erroneously and confusingly cited to the attempt statute (section 777.04, Florida
Statutes), and the premeditated murder statute, (section 782.04), which is a charge
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of the nonexistent crime of attempted felony murder that was invalidated by this
Court in Gray. The information in this case was therefore defective because it
neither cited to the correct statute nor alleged the essential elements of the crime of
attempted felony murder.
That is not the end of our inquiry. We must now determine whether
Weatherspoon is entitled to relief in light of the State’s error based on whether
there was prejudice to Weatherspoon. We conclude that the defendant was in fact
prejudiced.
The State argues that there was no prejudice because Weatherspoon was put
on notice of its intent to proceed under the attempted felony murder theory based
on what was disclosed in discovery, the undisputed facts of the case, the wording
of the statutory citations in the information, case law from the Fourth District at the
time of the trial, the questions asked by prosecutors during voir dire, and the
established case law from this Court.
To the contrary, Weatherspoon argues that there was actual prejudice to his
trial preparation and strategy. Weatherspoon contends that his attorneys made a
tactical decision to admit to the underlying felony—in this instance, robbery—
because they believed the State, proceeding under an attempted first-degree murder
theory, would have to prove that Weatherspoon knew that his codefendant
intended to shoot the victims once inside the Dunkin’ Donuts. Even if
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Weatherspoon first became aware of the State’s intention to proceed under the
attempted felony murder theory during voir dire, this would have still prejudiced
defense counsel’s trial preparation, the bulk of which took place long before a jury
was selected.
Adding to the prejudice in this case, over Weatherspoon’s objection, the jury
was given only a general verdict form with the single charge of attempted
premeditated murder. “It is well established that a general jury verdict cannot
stand where one of the theories of prosecution is legally inadequate.” Fitzpatrick
v. State, 859 So. 2d 486, 490 (Fla. 2003). Additionally, during deliberations the
jury asked for “[c]larification on Attempted 1st deg. murder and Attempted 1st
deg. felony murder. Attempted 1st deg. felony murder is not on the verdict form,”
to which the prosecutor commented, “[I]t sounds like they were probably thinking
we had to delineate which one[,]” making it impossible to determine upon which
theory the jury actually relied.
We conclude that the cases relied on by the State are inapposite. First, as to
White v. State, 973 So. 2d 638 (Fla. 4th DCA 2008): As Judge Warner describes in
her dissent, that case is distinguishable because even though the information in
White did not cite to the attempted felony murder statute, all of the essential
elements of the crime were alleged. Weatherspoon, 194 So. 3d at 347-48 (Warner,
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J., dissenting). Additionally, White never raised an objection to the charging
document or the jury instructions at trial. Id. at 348. As Judge Warner explains:
In contrast, as noted above, the information in this case did not
allege or reference the robbery at all in the attempted premeditated
murder counts, unlike the charge in White. And unlike White,
Weatherspoon raised the failure to charge attempted felony murder in
the trial court, rather than relying on an assertion of unpreserved
fundamental error. Further, and unlike White, the prosecution did try
this case under a theory of attempted felony murder, in addition to a
premeditation theory.
Id.
The State also relies on the case of Morales v. State, 785 So. 2d 612 (Fla. 3d
DCA 2001). In that case, the Third District found no fundamental error and that
the defendant was not prejudiced where the information cited to a repealed and
subsequently replaced statute. Id. at 614. The court held that the language in the
information placed the defendant on proper notice of the crime with which he was
being charged. Id. Morales is distinguishable from the instant case. First, and
importantly, the error in Morales was not preserved as it was in this case. Id. In
Morales, the attorney failed to object at the trial level, and therefore Morales had to
show fundamental error on appeal. Id. Next, as opposed to this case, although the
information in Morales cited the repealed version of the statute, it still described all
of the essential elements of the crime and tracked the correct statute’s language.
Id. In this case, by contrast, the information neither cited the correct statute nor
described the essential elements of the correct statute.
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Weatherspoon properly preserved the error and as explained, the State
cannot establish that the failure to charge attempted felony murder in the
information did not prejudice Weatherspoon. He is thus entitled to relief.
CONCLUSION
Because the statutory crime of attempted felony murder is a crime separate
from attempted murder with different elements and a different punishment, the
State must charge the crime of attempted felony murder in order to be entitled to a
jury instruction on that crime and to proceed under that theory. 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 the 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. Accordingly, we answer the certified question in the
affirmative, quash the Fourth District’s decision in Weatherspoon, and disapprove
of the decisions in Dempsey and Florence to the extent they are inconsistent with
this opinion. We therefore remand this case to the Fourth District for further
proceedings consistent with this opinion.3
3. During oral argument and in response to questioning about the difference
in punishments between the two crimes, the State explained why in this case the
punishments would be the same. That argument was not made in the briefs and
does not affect our analysis of the underlying issues that require a new trial.
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It is so ordered.
LABARGA, C.J., and QUINCE, CANADY, POLSTON, and LAWSON, JJ.,
concur.
LEWIS, J., concurs in result.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Application for Review of the Decision of the District Court of Appeal – Certified
Great Public Importance
Fourth District - Case No. 4D12-2775
(Palm Beach County)
Ira D. Karmelin, West Palm Beach, Florida,
for Petitioner
Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Celia A. Terenzio,
Bureau Chief, and Don M. Rogers, Assistant Attorney General, West Palm Beach,
Florida,
for Respondent
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