Opinion
CASE NO. 96-1140
Opinion filed February 26, 1997
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Robert W. Tyson, Jr., Judge; L.T. Case No. 94-144 CFB.
Richard L. Jorandby, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
Appellant was charged with first degree murder, two counts of attempted premeditated murder, and attempted robbery. He was convicted of all charges. However, on both counts of attempted premeditated murder, the jury was instructed that they could alternatively find appellant guilty of attempted felony murder. The State concedes that this was reversible error. See State v. Gray, 654 So.2d 552 (Fla. 1995). Accordingly, we reverse the two convictions for attempted murder and remand for a new trial on two counts of attempted premeditated murder. See Williamson v. State, 671 So.2d 281 (Fla. 4th DCA 1996)(holding that when attempted murder conviction is obtained where an attempted felony murder instruction is given, retrial on charge of attempted first degree murder is appropriate where it is impossible to determine whether the jury used premeditation or the improper felony-murder theory to convict and the facts could support guilty verdict on either theory).
REVERSED and REMANDED.
FARMER, STEVENSON and GROSS, JJ., concur.