Bell v. State
Bell v. State
Opinion of the Court
Appellant Charles Bell raises five issues in his direct appeal from judgment and sentence. In addition, at oral argument the issue of the applicability of State v. Gray, 654 So.2d 552 (Fla. 1995), was raised by the court and supplemental briefs on this issue were submitted. We reverse on the Gray issue as explained below, and we affirm on all other issues.
Appellant was charged in a four-count indictment with armed robbery, attempted armed robbery, first degree murder, and attempted first degree murder. Count I, which concerned the armed robbery of a bicycle belonging to Emory Davis, was severed. The three remaining counts, which are the subject of the instant appeal, involved an attempted aimed robbery in which Tammy Jo Johnson was fatally shot and Katrina Jones was wounded. At age 18, appellant was the oldest of the five males charged in the Johnson murder. Prior to trial, appellant’s case was joined with codefendant Eugene Edwards; the other co-defendants were tried separately. Appellant was convicted and sentenced to life without parole for 25 years for first degree murder, a concurrent 20-year sentence for attempted first degree murder, and a concurrent 15-year term for the attempted robbery.
In count four of the indictment, appellant was charged with attempted first degree murder, and at trial, the state argued and the jury was charged on the alternative theories of attempted premeditated and attempted felony murder. Attempted felony murder, however, is no longer recognized as a crime in Florida. State v. Gray, 654 So.2d 552 (Fla. 1995). Because appellant’s conviction on this charge may be based on the now legally invalid theory of attempted felony murder, this jury’s verdict on this count only must be set aside and the case remanded for retrial on the charge of attempted premeditated murder. Allen v. State, 676 So.2d 491, 492 (Fla. 5th DCA 1996)(en banc)(remanding for new trial and stating that “the question for this court is not whether evidence exists which would support conviction upon the valid theory, but rather is whether it is possible that the conviction was based upon the inval
Except for the conviction for attempted first degree murder, appellant’s convictions and sentences are affirmed. Accordingly, the case is affirmed in part, reversed in part, and remanded for retrial in accordance with this opinion.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.