Summary
finding defendant "could not be adjudicated for both attempted first degree premeditated murder and attempted felony murder for the same killing"
Summary of this case from Fearon v. StateOpinion
Case No. 4D03-97.
Opinion filed April 7, 2004.
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County, Dwight L. Geiger, Judge, L.T. Case No. 01-2235 CFA.
Carey Haughwout, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, West Palm Beach, for appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
The state concedes that defendant could not be adjudicated for both attempted first degree premeditated murder and attempted felony murder for the same killing. See Gordon v. State, 780 So.2d 17 (Fla. 2001) (noting that dual convictions for attempted premeditated murder and attempted felony murder violate double jeopardy). We accept the state's concession. As the state apparently recognizes, this constitutional problem cannot be avoided by simply making the alternative ways to commit first degree murder an attempt rather than the completed act. We therefore reverse the attempted premeditated murder conviction.
We reject the double jeopardy argument as to the convictions involving sexual acts. The dual convictions for sexual battery and unlawful sexual activity with a minor involve different elements. Sexual battery requires a lack of consent and the use, or threat of use, of a weapon or the actual use of force likely to cause personal injury. Unlawful sexual activity with a minor does not involve any issue of consent or threats or force. Therefore, on all other issues we affirm defendant's multiple convictions.
GUNTHER and TAYLOR, JJ., concur.