Florida/Georgia Personal Injury & Workers Compensation

...crime of attempted felony murder. [3] The holding in State v. Gray was superseded by enactment of a statute creating the offense of attempted felony murder. We recently explained: 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. In 1998, the Legislature substantially rewrote section 782.051 and retitled it "Attempted felony murder." See ch....

...on (felony causing bodily injury) (Count II), aggravated battery causing great bodily harm with a firearm (Count III), and robbery with a firearm (Count IV). Counts I and II are both life felonies. See §§ 782.04(1)(a), 777.04(4)(b), 775.087(1)(a), 782.051(1), Fla....

...ly weapon. See Fla. Std. Jury Instr. (Crim.) 122; see also § 784.045(1)(a)1, Fla. Stat. (1997). Felony causing bodily injury requires: (1) commission or attempt to commit an enumerated felony (robbery); and (2) an act causing *22 bodily injury. See § 782.051(1), Fla....

...and, therefore, multiple convictions are impermissible. As such, Gordon contends that Sirmons and its progeny are applicable to the instant case. The State, however, contends that Sirmons is distinguishable because it predates the 1997 enactment of section 782.051(1), and it did not involve an attempted homicide....

...No death occurred in this case. Nonetheless, Gordon contends that the logical extension of this principle dictates that dual convictions for attempted premeditated murder and attempted felony murder are impermissible. The State concedes this point, but emphasizes that section 782.051(1) provides that a defendant may be convicted of both felony causing bodily injury and an enumerated offense....

...e existence of the specific intent required to prove attempt." Id. at 449. In State v. Gray, 654 So.2d 552 (Fla. 1995), this Court overruled Amlotte and concluded that attempted felony murder was a nonexistent crime. In 1996, the Legislature enacted section 782.051, Florida Statutes. Section 782.051 states: "Any person who perpetrates or attempts to perpetrate any felony enumerated in s. 782.04(3) and who commits, aids, or abets an act that causes bodily injury to another commits a felony of the first degree...." § 782.051(1), Fla....

...Admittedly, the language of this section is more expansive than our previous conception of the nonexistent crime of attempted felony murder because it requires bodily injury. However, in 1998 the Legislature substantially rewrote this section and retitled it "Attempted felony murder." Amended section 782.051(1) now provides: "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...." § 782.051(1), Fla. Stat. (1999). In Brown v. State, 761 So.2d 1135 (Fla. 1st DCA 2000), review granted, 767 So.2d 454 (Fla.2000), [6] the First District construed the former version of section 782.051—the version at issue in this case. In so doing, the court recognized that the Legislature intended section 782.051 to be a replacement for and expansion of the previous crime of attempted felony murder. As the First District noted, the legislative history indicates that section 782.051 was enacted as a response to this Court's opinion in Gray....

...Indeed, the senate staff analysis explicitly states: "These new felony offenses would replace the crime of `attempted felony murder,' which was recently abolished by the Florida Supreme Court." Fla. S. Comm. on Crim. Just., CS for SB 2712 (1996) Staff Analysis 1 (Apr. 10, 1996). Thus, it seems abundantly clear that section 782.051 reinvigorates the former crime of attempted felony murder....

...Further, courts may not examine facts in the record, but must look only to the statutory elements of the offenses to determine whether a double-jeopardy violation exists. See Gaber v. State, 684 So.2d 189, 190 (Fla.1996); see also McCloud, 577 So.2d at 941. [4] Section 782.051(1) provides: Any person who perpetrates or attempts to perpetrate any felony enumerated in s....

...nishable by imprisonment for a term of years not exceeding life, or as provided in s. 775.082, s. 775.083, or s. 775.084, which is an offense ranked in level 9 of the sentencing guidelines. Victim injury points shall be scored under this subsection. § 782.051(1), Fla. Stat. (1997). In 1998, the Legislature substantially rewrote this section and renamed the title "Attempted felony murder." See § 782.051, Fla. Stat. (1999). Amended section 782.051(1) provides "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...." Id. [5] As the State correctly observes, section 782.051(1) expressly provides that felony causing bodily injury is a first-degree felony, a level 9 offense, and warrants the assessment of victim injury points. See § 782.051, Fla....

...See Tucker v. State, 857 So.2d 978 (Fla. 4th DCA 2003); Mitchell v. State, 830 So.2d 944 (Fla. 5th DCA 2002). I would reach the same result, but because the core offense of both crimes is battery rather than homicide. Attempted felony murder, as codified in section 782.051(1), Florida Statutes (2004), requires "an intentional act that is not an essential element of the felony and that could, but does not, cause the death of another." [6] In general, convictions of both attempt and the completed crime ar...

...The instructions as set forth in the appendix shall be effective when this opinion becomes final. It is so ordered. LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur. APPENDIX 6.3 ATTEMPTED FELONY MURDER —FIRST DEGREE [ENUMERATED FELONY] [NON-ENUMERATED FELONY] §§ 782.04(1)(a) and 777.04 § 782.051(1) and (2), Fla....

...In order to convict (defendant) of Attempted Felony Murder, it is not necessary for the State to prove that [he] [she] had a premeditated design or intent to kill. Lesser Included Offenses No lesser included offenses have been identified for this offense. Comment Section 782.051(1), Fla. Stat., applies where the defendant is alleged to have committed or attempted to commit a felony enumerated in section 782.04(3). Section 782.051(2), Fla....

...Stat., applies where the defendant is alleged to have committed or attempted to commit a felony not enumerated in section 782.04(3), Fla. Stat. This instruction was adopted in 2007. See Battle v. State, 911 So.2d 85 (Fla. 2005). *313 6.3(a) ATTEMPTED FELONY MURDER — INJURY CAUSED BY ANOTHER § 782.051(3) Fla....

...In order to convict the defendant of attempted felony murder, it is not necessary for the state to prove that the defendant had a premeditated design or intent to kill. Lesser Included Offenses No lesser included offenses have been identified for this offense. Comment Section 782.051(3), Fla....

...Golly and two other witnesses identified Battle as the perpetrator from a photo array. Battle was initially charged by information with one count of attempted second-degree murder and one count of attempted robbery. The information was later amended to include one count of attempted felony murder with a firearm pursuant to section 782.051(1), Florida Statutes (1999)....

...did not cause the death of David Golly. Battle did not object to this instruction in the trial court. However, on appeal he argued that the instruction constituted fundamental error because it failed to instruct the jury on the essential element in section 782.051(1), which requires the jury to find that Battle had committed an intentional act "that is not an essential element of the felony." The Second District recognized that the phrase "that is not an essential element of the felony" constitutes a necessary element of attempted felony murder under the statute....

...ony murder. 654 So.2d at 554. In the wake of Gray, the standard jury instructions for attempted felony murder were deleted. See Standard Jury Instr. in Crim. Cases (95-2), 665 So.2d 212, 213 (Fla.1995). In 1996, the Legislature responded by enacting section 782.051, which created the offense of "Felony causing bodily injury." See ch....

...In 1998, the Legislature substantially rewrote this section and retitled it "Attempted felony murder." See ch. 98-204, § 12, at 1970, Laws of Fla. The 1998 amendment also added the element of an intentional act that is not an essential element of the underlying felony. As amended by the Legislature, section 782.051(1) provides: Any person who perpetrates or attempts to perpetrate any felony enumerated in s....

...ither perpetrates or attempts to perpetrate any felony enumerated in section 782.04(3); and who commits an intentional act that is not an essential element of that felony; and that intentional act could, but does not, cause the death of another. See § 782.051(1), Fla....

...albeit from a depraved mind or in the course of committing another felony. Further, the statutes defining each offense are included in the same chapter of the Florida Statutes, i.e., chapter 782 which is entitled "Homicide." See §§ 782.04(2)-(3), 782.051(1), Fla....

...murder and attempted felony murder for the same act constitute a double jeopardy violation. See Mitchell v. State, 830 So.2d 944 (Fla. 5th DCA 2002) (holding that dual convictions for attempted second-degree murder and attempted felony murder under section 782.051, based on a single act, constitute a double jeopardy violation)....

...for the same offence [sic] to be twice put in jeopardy of life or limb." U.S. Const. amend. V. [4] See Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). [5] "Felony causing bodily injury" is the 1997 statutory version of section 782.051(1), which was amended in 1998 and retitled as the current crime of attempted felony murder....

...’s motion for judgment of acquittal. Id. at 412 . Additionally, Coicou argued that his conviction and sentence must be reversed and that he should be discharged because the State failed to prove one of the elements of attempted felony murder under section 782.051(1), Florida Statutes (2001)....

...We reasoned that the “legal fictions required to support the intent for felony murder [were] simply too great” to extend to attempted felony murder. Gray, 654 So.2d at 554 . 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. In 1998, the Legislature substantially rewrote section 782.051 and retitled it “Attempted felony murder.” See ch....

...In determining whether attempted second-degree murder is a permissive lesser-included offense of attempted felony murder, “the pertinent inquiry is whether the greater crime may be charged in a manner encompassing the lesser.” Williams, 957 So.2d at 598 . The crime of attempted felony murder is codified in section 782.051, Flori *241 da Statutes (2001). Section 782.051(1) provides: Any person who perpetrates or attempts to perpetrate any felony enumerated in s....

...Attempted second-degree murder and attempted first-degree felony murder appear to be separate on the face of the statutes because each crime contains an element that the other does not. Attempted first-degree felony murder requires that the act be committed during the course of committing a felony. See § 782.051....

...n, and use of a weapon during the commission of a felony. These charges were dropped. See Coicou, 867 So.2d at 410 n. 1. . The 1998 amendment also added the element of an intentional act that is not an essential element of the underlying felony. See § 782.051(1), Fla....

...ives had been fairly treated. We find no abuse of discretion. On the remaining issue we find no double jeopardy violation in appellant's convictions of robbery under section 812.13(1), Florida Statutes (1997) and a felony causing bodily injury under section 782.051(1), Florida Statutes (1997)....

...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....

...urred 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....

...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....

...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 -7-  establishes a new, separate crime with additional elements not found in either of these statutes and not alleged in the information....

...ed 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....

...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....

...ntional act - 13 -  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....

.... 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....

...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....

...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....

...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....

...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. - 16 - § 782.051(1), Fla....

...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....

...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....

...We remand for preparation of a new scoresheet and re-sentencing. In view of the legislative requirement of section 775.021 to punish each offense that passes the Blockburger test, the requirements of Gordon and the conviction under the relatively new crime created by section 782.051(1), we certify the following question to be one of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v): DO DUAL CONVICTIONS FOR ATTEMPTED SECOND DEGREE MURDER AND ATTEMPTED FELONY MURDER, PURSUANT TO SECTION 782.051, FLORIDA STATUTES (2001), FOR A SINGLE ACT CONSTITUTE A DOUBLE JEOPARDY VIOLATION? THOMPSON, C.J., concurs....

...udication of guilt and sentencing for attempted second degree murder and attempted felony murder for the single act of shooting a single victim during the commission of an attempted robbery. NOTES [1] Fla. Stat. § 782.04(2) (2001). [2] Fla. Stat. §§ 782.051(1), 775.087(1) and (2)(a)3 (2001)....

...Cases, 697 So.2d 84, 90 (Fla.1997). [3] Attempted felony murder consists of an intentional act committed during a felony which is not essential to the commission of that felony and which, by its nature, could have resulted in the unlawful death of another. § 782.051, Fla....

...He then took West's keys and drove off in West's pick-up truck. Thompson was arrested and charged with two counts of robbery with a firearm in violation of section 812.13(2)(a), Florida Statutes (1999), and one count of attempted felony murder in violation of section 782.051(1), Florida Statutes (1999)....

...ons required to support the intent for felony murder are simply too great" to extend to attempted felony murder. 654 So.2d at 554. Thus, the court declared the crime of attempted felony murder did not exist. Id. The legislature responded by enacting section 782.051(1), thereby making attempted felony murder a crime once again. Section 782.051(1) provides: Any person who perpetrates or attempts to perpetrate any felony enumerated in s....

...n "the shooting of William West," thereby making the intentional act of the attempted felony murder instruction one of the essential elements of the underlying felony. This is the exact result that the Gray court sought to prevent and the reason why section 782.051(1) was so carefully drafted....

...obbery was going to take place or that there was a gun present. King did not object to the jury instruction the trial court gave pertaining to the charge of attempted felony murder which failed to instruct the jury that they had to find, pursuant to section 782.051(1), Florida Statutes (1999), that King committed "an intentional act that is not an essential element of the felony." The jury returned verdicts of guilty to the lesser charge of manslaughter, attempted felony murder and attempted robbery with a firearm. King argues that the trial court's instruction on attempted felony murder constitutes fundamental error because, without the quoted language from section 782.051(1), it is incomplete....

...ains to an element of the crime of attempted felony murder. The Erroneous Instruction In The Instant Case In order to determine whether the jury instruction in the instant case constitutes fundamental error because it is incomplete, we must refer to section 782.051(1), Florida Statutes (1999), which provides: (1) Any person who perpetrates or attempts to perpetrate any felony enumerated in s....

...[2] After the supreme court in Gray found that attempted first degree felony murder was a nonexistent offense, the Legislature reenacted the offense of attempted felony murder and included for the first time the phrase "that is not an essential element of the felony." See § 782.051, Fla....

...Appellate counsel claimed this was error because Rodgers stood convicted of a crime with which he was not charged. Citing Florida Rule of Criminal Procedure 3.610 (Motion for Arrest of Judgment), counsel claimed that the information did not actually charge attempted felony murder and did not cite section 782.051, Florida Statutes....

...e trial." DuBoise v. State, 520 So.2d 260, 264 (Fla. 1988). White argues that the information charged him with attempted felony murder, which is not a crime. See State v. Gray, 654 So.2d 552 (Fla.1995). However, the holding in Gray was superseded by section 782.051, Florida Statutes, which makes "attempted felony murder" a crime. Assuming White's interpretation of the information is accurate, namely that the information charged White with attempted felony murder, he was not charged with a non-existent crime in light of section 782.051....

...shooting of the victim, to prove both the attempted felony murder and the underlying robbery offense, but we remand with instructions to enter a judgment of conviction for attempted second-degree murder. The State charged Coicou with a violation of section 782.051(1), Florida Statutes, attempted first-degree felony murder by attempting to commit a robbery against the victim, Christopher Artis, and as a separate act not an essential element of the robbery, shooting Artis in the chest....

...was no proof of the underlying felony, the robbery, and that the *411 essential elements of attempted felony murder were not proven. The trial court again denied the motion. The trial court instructed the jury on attempted felony murder, pursuant to section 782.051, Florida Statutes, and that the shooting constituted a separate intentional act that was not an element of the charged robbery....

...first-degree felony murder) and the underlying felony allegation (robbery). Furthermore, we agree with Coicou that the State did not prove the crime of attempted felony murder. The State charged Coicou with attempted first-degree felony murder under section 782.051(1), Florida Statutes, with robbery being the underlying offense. Section 782.051(1) states in relevant part: (1) Any person who perpetrates or attempts to perpetrate any felony enumerated in s....

...Artis testified that he voluntarily handed the money to Coicou. The use of force occurred after Artis handed the money to Coicou. The use of force, the shooting, was itself an essential element of the underlying robbery and was not an independent act as required by section 782.051(1)....

...5th DCA 2002); Thompson v. State, 814 So.2d 1103, 1106 (Fla. 4th DCA 2002). Thus, the trial court erred in denying Coicou's motion for judgment of acquittal. Coicou next contends that because the State failed to prove one of the elements of attempted felony murder under section 782.051(1), his conviction and sentence must be reversed and he should be discharged....

...Appellant was charged by information with two counts of attempted first degree murder (Counts I and II) and two counts of attempted felony murder of Martin and Wilfredo Martinez (Counts III and IV). [1] The information tracked the language of attempted felony murder under section 782.051(1), Florida Statutes (2000)....

...No act distinguishes the attempted premeditated murder from the attempted felony murder; the attempted murder is the predicate felony and the same act on the same victim. In other words, there is no intentional act that is not an essential element of the attempted premeditated murder as is required by section 782.051(1)....

...quired to support the intent for felony murder are simply too great" to extend to attempted felony murder. Gray, 654 So.2d at 554. Thus, the court declared the crime of attempted felony murder did not exist. Id. The legislature responded by enacting section 782.051(1), thereby making attempted felony murder a crime once again. Section 782.051(1) provides: Any person who perpetrates or attempts to perpetrate any felony enumerated in s....

...[4] However, the majority's use of a second-degree felony murder theory and supporting case law is irrelevant to the issue presently under discussion because the crime of second-degree felony murder is a separate statutory crime not charged here. See § 782.051(1). United States v. Lacher, 134 U.S. 624, 628, 10 S.Ct. 625, 33 L.Ed. 1080 (1890)("before a man can be punished, his case must be plainly and unmistakably within the statute [charged]"). More significantly, under section 782.051(1), an attempted felony-murder conviction requires proof not only that the defendant participated in the underlying crime, but also that the defendant "commit[ted] *1114 (or aids and abets) an intentional act that is not an essential element of the [underlying] felony." Id....

...URY DURING A FELONY, AND AGGRAVATED BATTERY CAUSING GREAT BODILY HARM? AFFIRMED in part; REVERSED in part; REMANDED for re-sentencing. DAUKSCH and THOMPSON, JJ., concur. NOTES [1] §§ 782.04(1)(a), 777.04(4)(b), 775.087(1)(a), Fla.Stat. (1997). [2] § 782.051(1), Fla.Stat. (1997). This statute was later amended and entitled "Attempted felony murder." § 782.051, Fla.Stat....

...’ is not fundamental error.” Battle v. State, 911 So.2d 85, 89 (Fla.2005) (quoting State v. Delva, 575 So.2d 643, 645 (Fla.1991)). In Battle , a certified conflict case, Battle was convicted for attempted felony murder with a firearm pursuant to section 782.051(1), Florida Statutes (1999). Id. at 86 . He argued that the applicable jury instruction constituted fundamental error because it failed to instruct the jury on the essential element: “that [was] not an essential element of the felony,” as required under section 782.051....

...We find no merit in his points on appeal *1103 except for his claim that the jury was erroneously instructed on the crime of attempted felony murder. Neal claims that the trial court erred when it instructed the jury on attempted felony murder because the instruction failed to track section 782.051(1), Florida Statutes (1999)....

...murder doctrine. See Gray, 654 So.2d at 553 ( citing Amlotte, 456 So.2d at 449-50). However, our supreme court reversed itself in Gray by declaring that the crime of attempted felony murder did not exist. In response to Gray, the Legislature passed section 782.051(1) again making attempted felony murder a crime. Section 782.051(1) provides that: Any person who perpetrates or attempts to perpetrate any felony enumerated in s....

...and 777.04 5.1 cause great bodily harm) Attempted battery 784.03(1)(a)2 8.3 and (intentionally cause and 777.04 5.1 bodily harm) Attempted felony 782.051(1) 6.3 murder Attempted felony 782.051(2) 6.3 murder Attempted felony 782.051(3) 6.3(a) murder Aggravated battery 784.045 8.4 Felony battery 784.041(1) 8.5 Aggravated Assault 784.021...

...State, 214 So. 3d 578 (Fla. 2017). This instruction was adopted in 1994 [636 So. 2d 502] and amended in 2014 [137 So. 3d 995] and 2018. 6.3 ATTEMPTED FELONY MURDER [ENUMERATED FELONY] [NON-ENUMERATED FELONY] § 782.051(1) and (2), Fla....

...rrectional institution or a county or municipal detention facility. Lesser Included Offenses 6.3 ATTEMPTED FELONY MURDER [ENUMERATED FELONY] [NON-ENUMERATED FELONY] — § 782.051(1) and (2), Fla....

....5 Aggravated Assault 784.021 8.2 Battery 784.03 8.3 Assault 784.011 8.1 Comments Section § 782.051(1), Fla. Stat., applies where the defendant is alleged to have committed or attempted to commit a felony enumerated in section § 782.04(3), Fla. Stat. Section § 782.051(2), Fla....

...This instruction was adopted in 2007 [962 So. 2d 310] and amended in 2014 [137 So. 3d 995] and 2018. See Battle v. State, 911 So. 2d 85 (Fla. 2005). 6.3(a) ATTEMPTED FELONY MURDER — INJURY CAUSED BY ANOTHER § 782.051(3) Fla....

...protection, care, custody, and control of inmates within a correctional institution or a county or municipal detention facility. Lesser Included Offenses 6.3(a) ATTEMPTED FELONY MURDER – INJURY CAUSED BY ANOTHER — § 782.051(3) Fla. Stat. CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None Attempted Manslaughter 782.07 & 6.6 by Act 777.04 Comments Section § 782.051(3), Fla....

...harm) Attempted battery 784.03(1)(a)2 8.3 and (intentionally cause and 777.04 5.1 bodily harm) - 30 -  Attempted felony 782.051(1) and 6.3 and murder - reclassified 782.065 6.7 Attempted felony 782.051(1) 6.3 murder Attempted felony 782.051(2) and 6.3 and murder -reclassified 782.065 6.7 Attempted felony 782.051(2) 6.3 murder Attempted felony 782.051(3) and 6.3(a) murder- reclassified 782.065 and 6.7 Attempted felony 782.051(3) 6.3(a) murder Aggravated battery 784.045 8.4 Felony battery 784.041(1) 8.5 Aggravated Assa...

...Aggravated 782.07(3) 7.7(a) Manslaughter (Child) Second degree 782.04(3) 7.5 (felony) murder - 35 -  Attempted felony 782.051(1) 6.3 murder Attempted 782.04(1) 6.2 premeditated murder Aggravated 782.07(2) 7.7(a)...

...(Officer/Firefighter/ EMT/Paramedic) Attempted second 782.04(2) & 6.4 degree murder 777.04 Attempted felony 782.051(2) 6.3 murder Third degree (felony) 782.04(4) 7.6 murder Vehicular homicide 782.071 7.9 Attempted felony 782.051(3) 6.3(a) murder Aggravated battery 784.045 8.4 Attempted 782.07 & 6.6 Manslaughter by Act 777.04...

...(Felony) Murder – 782.065 7.13 Reclassified Second Degree 782.04(3) 7.5 (Felony) Murder - 65 - Attempted Felony 782.051(1) and 6.3 and Murder - Reclassified 782.065 6.7 Attempted Felony 782.051(1) 6.3 Murder Attempted 782.041(1), 6.2 and Premeditated Murder - 777.04, and 6.7 Reclassified 782.065 Attempted 782.04(1) and 6.7 Premeditated Murder 777.04 Attempted Second...

...Degree Murder - 777.04, and 6.7 Reclassified 782.065 Attempted Second 782.04(2), 6.4 Degree Murder 777.04 Attempted Felony 782.05(2) and 6.3 and Murder- Reclassified 782.065 6.7 Attempted Felony 782.051(2) 6.3 Murder Third Degree Felony 782.04(4) and 7.6 and Murder - Reclassified 782.065 7.13 Third Degree Felony 782.04(4) 7.6 Murder Vehicular Homicide 782.071 7.5 Attempted Felony 782.051(3) and 6.3(a) Murder - Reclassified 782.065 and 6.7 Attempted Felony 782.051(3) 6.3(a) Murder Aggravated battery 784.045 8.4 Attempted 782.07 and 6.6 Manslaughter by Act 777.04 Felony battery 784.041(1) 8.5 Aggravated Assault 784.021 8.2 Battery...

...Similarly, in Coicou, the defendant's act of shooting at the victim was an essential element of the *1079 underlying felony of robbery and could not also support a charge of attempted felony murder. 867 So.2d at 412. Both Coicou and Tucker involved the attempted felony murder statute, section 782.051, Florida Statutes (2002), which requires the occurrence of an act that is not an essential element of the underlying felony....

...course of the commission of the offense, said defendant discharged a firearm or destructive device and as a result of the discharge, death or great bodily harm was inflicted upon [the victim], a human being in violation of 782.051(1) and 775.087 & 777.011, Florida Statutes ....

...We concluded that Williams’ claim of ineffectiveness was well taken “[b]ecause the information filed against [Williams] and the facts proffered to support the information used the same act for both attempted felony murder and the underlying attempted armed robbery.” Williams II, 83 So. 3d at 907; see also § 782.051(1), Fla....

...that the discharge of the firearm was intentional and not accidental. The gratuitous allegation in count 1 that Williams pointed a firearm at the victim does not vitiate the legally sufficient allegations in that count of attempted felony murder under section 782.051(1), Florida Statutes (2004): Attempted felony murder.— (1) Any person who perpetrates or attempts to perpetrate any felony enumerated in s....

...State, 867 So.2d 409 (Fla. 3d DCA 2003), is distinguishable from this case. There, as here, the same act, i.e., the shooting of the victim, was used to prove both the attempted felony murder and the underlying robbery offense. This is not permissible for a conviction under section 782.051(1), Florida Statutes....

...The Third District first observed that under the robbery statute, the use of force can occur subsequent to the taking of property. The court then stated: The use of force, the shooting, was itself an essential element of the underlying robbery and was not an independent act as required by section 782.051(1)....

...BENTON, J. The court's opinion of February 4, 2000, is withdrawn and this revised opinion is substituted therefor. Harold Eugene Brown appeals convictions for attempted first degree murder with a firearm and for "felony causing bodily injury" proscribed by section 782.051(2), Florida Statutes (1997)....

...Section 782.04(1)(a), Florida Statutes (1997), defines murder in the first degree to include killing somebody "from a premeditated design to effect the death." Attempting such a murder with a firearm is a life felony. See §§ 777.04(4)(b), 775.087(1)(a), Fla. Stat. (1997). Now substantially amended, [1] section 782.051, Florida Statutes (1997), once made it a crime to cause bodily injury during the course of committing or attempting a felony: Any person who perpetrates or attempts to perpetrate any felony other than a felony enumerated in s. 782.04(3) and who commits, aids, or abets an act that causes bodily injury to another commits a felony of the first degree.... § 782.051(2), Fla. Stat. (1997). First degree murder is not enumerated in section 782.04(3), Florida Statutes (1997). At the time pertinent to the present case, section 782.051(2), Florida Statutes (1997), required proof that the perpetrator (1) committed or attempted to commit a felony not listed in section 782.04(3), Florida Statutes (1997), and (2) while doing so committed, aided or abetted an act causing bodily injury to another person....

...sion in State v. Gray, 654 So.2d 552 (Fla.1995) (rejecting the putative common law doctrine of "attempted felony murder"). See Senate Staff Analysis and Economic Impact Statement, C.S./S.B. 2712, at 4-5 (Apr. 10, 1996). An early draft of what became section 782.051 was in fact entitled "attempted felony murder." See H.B.2063, S.B....

...g section 775.021(4) to incorporate Blockburger test) took effect. See State v. Smith, 547 So.2d 613, 616 (Fla.1989) (" [A]ll criminal offenses containing unique statutory elements shall be separately punished."). Neither Boivin nor Mills dealt with section 782.051(2), Florida Statutes (1997)....

...We otherwise deny appellant's motion for rehearing, clarification, certification of a question of great public importance, and certification of conflict. JOANOS and WOLF, JJ., CONCUR. NOTES [1] In 1998, the Legislature renamed the statute "attempted felony murder." See Ch. 98-204, § 12, at 1969-70, Laws of Fla. As amended, section 782.051, Florida Statutes (Supp....

...ses to shield the person who actually confronted Golly in his truck. Battle's defense suggested that the person who confronted Golly was an individual named Tim Watson. The State charged Battle with attempted felony murder with a firearm pursuant to section 782.051(1) Florida Statutes (1999), which provides as follows: Any person who perpetrates or attempts to perpetrate any felony enumerated in s....

...h of another commits a felony of the first degree, punishable by imprisonment for a term of years not exceeding life, .... The phrase, "that is not an essential element of the felony," constitutes a necessary element of attempted felony murder under section 782.051(1)....

...Battle did not object to this instruction in the trial court, but he argues that the failure to instruct the jury on an essential element of the crime constitutes fundamental error in this case. The instruction given fails to include the required element in section 782.051(1) that the jury had to find that Battle committed an intentional act "that is not an essential element of the felony." The failure to instruct the jury on this essential element is fundamental error if the error pertains "to an eleme...

...orida. NOTES [1] Although not raised as an issue in this appeal, we note that in Mitchell v. State, 830 So.2d 944 (Fla. 5th DCA 2002), the Fifth District held that dual convictions for attempted second-degree murder and attempted felony murder under section 782.051, Florida Statutes (2001), for a single act constitute a double jeopardy violation....

...This discussion from Gordon provides the basis for our decision in the present case. We recognize that the Gordon court referred to an earlier version of the crime of attempted felony murder. However, the legislature has now revived the crime by its enactment of section 782.051(1), Florida Statutes, the statute under which the appellant was convicted in the present case. Comparison of the elements of the current offense with those of the former crime, as set forth in Amlotte v. State, 456 So.2d 448 (Fla.1984), reveals that the respective elements are nearly identical. Although section 782.051(1) includes "attempt" as one of its elements and thus creates a stand-alone crime, and although the current offense is slightly narrower than its earlier counterpart in that the requisite act committed during the underlying felony can...

...hat to a 20 year minimum mandatory. The scoresheet prepared by the State also correctly scored the attempted felony murder as a category "9" offense, which under section 921.0022, Florida Statutes (2001), specifies that attempted felony murder under section 782.051(1) is a first degree felony, scored as a category "9" offense....

...We otherwise affirm. Mr. Greenway was convicted of resisting an officer with violence and causing bodily injury during the commission of a felony. The underlying felony for the charge of felony causing bodily injury was the charge of resisting with violence. See § 782.051(2), Fla....

homicide. Attempted felony murder, as codified in section 782.051(1), Florida Statutes (2004), requires “an intentional

...result of this case. Hence, I find no harmful error and, if different, no fundamental error. NOTES [1] §§ 782.04(1)(a)1; 777.04(1), 775.0823(2); 775.087(1)(a), (2)(a), Fla. Stat. [2] § 812.13(2)(a), Fla. Stat. [3] § 784.021(1)(a), Fla. Stat. [4] § 782.051(1), Fla....

...r for a judgment of acquittal. Instead, the court, undoubtedly with all best intentions, crafted its own solution to the problem. First, the court, recognizing the fatal flaw in the charging document, announced that Count 2, ostensibly brought under section 782.051(3), Florida Statutes (2004), was worded so as not to charge an offense under that statute. The court expressed its view that the State must have intended to charge appellant under section 782.051(1)....

...inally intended the information, which virtually tracked the unique language of subsection (3) and its actus reus ("injure"), to charge a violation of subsection (1). Nonetheless, the judge sua sponte amended the information to allege a violation of section 782.051(1), Florida Statutes....

...State, 682 So.2d 605 (Fla. 1st DCA 1996); Brown v. State, 550 So.2d 142, 142-43 (Fla. 1st DCA 1989). Instead, appellant was convicted of a crime, aggravated battery, with which he had never been formally charged. We would struggle to ever read aggravated battery into section 782.051(3) as a lesser included offense, because section 782.051(3) applies to the person who commits a felony while another person injures the victim by committing, inter alia, an aggravated battery. The Standard Jury Instructions in effect at the time of appellant's trial did not expressly provide an instruction as to sections 782.051(1) and (3); a 2007 amendment added instructions on both subsections, but it does not list any lesser included offenses for either. See Fla. Std. Jury Instr. (Crim.), "Schedule of Lesser Included Offenses" (4th ed.); In re Std. Jury Instr. in Crim. Cases, 962 So.2d 310 (Fla.2007) (adding instructions for sections 782.051(1) and (3), and expressly providing that neither section includes lesser offenses); In re Std....

...and the order denying his motion for rehearing. He challenged his sentencing designation as a violent career criminal (VCC) pursuant to section 775.084(1)(c), Florida Statutes (1997), for the offense of felony causing bodily injury, in violation of section 782.051(1), Florida Statutes (1997), asserting that the offense was not an enumerated felony for which VCC sentencing could be imposed....

..."If `the use or threat of physical force or violence against any individual' is not a necessary element of the crime, `then the crime is not a forcible felony within the meaning of the final clause of section 776.08.'" Id. at 216 (quoting Perkins v. State, 576 So.2d 1310, 1313 (Fla.1991)). The version of section 782.051(1) which was in effect at the time Defendant committed his offense reads as follows: (1) Any person who perpetrates or attempts to perpetrate any felony enumerated in s....

...hable by imprisonment for a term of years not exceeding life, or as provided in s. 775.082, s. 775.083, or s. 775.084, which is an offense ranked in level nine of the sentencing guidelines. Victim injury points shall be scored under this subsection. § 782.051(1), Fla....

...[November 20, 2014] PARIENTE, J. This case involves the crime of attempted felony murder, which requires the defendant to commit an “intentional act that is not an essential element of the underlying felony.” § 782.051(1), Fla....

...Because the State charged attempted felony murder, instead of the underlying felony of attempted second-degree murder, the defendant was charged with a first-degree felony as opposed to a second-degree felony. Attempted felony murder carries with it much more serious penalties. See § 782.051(1), Fla....

...from the attempted felony murder; the attempted murder is the predicate felony and the same act on the same victim.” Id. In other words, “there is no intentional act that is not an essential element of the attempted premeditated murder as is required by section 782.051(1).” Id....

...those same victims satisfies the statutory element of attempted felony murder that requires the State to prove beyond a reasonable doubt that the defendant committed an “intentional act that is not an essential element of the underlying felony.” § 782.051(1), Fla....

...This Court reasoned that the “legal fictions required to support the intent for felony murder [were] simply too great” to extend to attempted felony murder. Id. at 554. “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....

...added an additional element to the crime—that the defendant commit an “intentional act that is not an essential element of the felony and that could, but does not, cause the death of another.” Id. Thus, at the time the crimes occurred in this case, section 782.051(1) provided as follows: Any person who perpetrates or attempts to perpetrate any felony enumerated in s....

...exceeding life, or as provided in s. 775.082, s. 775.083, or s. 775.084, which is an offense ranked in level 9 of the Criminal Punishment Code. Victim injury points shall be scored under this subsection. -7- § 782.051(1), Fla....

...based upon the predicate felony of attempted murder as long as, in committing the underlying attempted murder, the defendant commits an intentional act that could have resulted in the victim’s death but that was not an essential element of the underlying attempted murder. See § 782.051(1), Fla....

...ant “intentionally commit[] an act that could have resulted, but did not result, in the death of someone,” id., this same act cannot also constitute the “intentional act” necessary to support a conviction for attempted felony murder under section 782.051(1)....

...fundamental flaws in the Third District’s analysis. First, in discussing and -9- affirming Milton’s attempted felony murder convictions, the Third District cited to the incorrect statutes. Attempted felony murder is governed by section 782.051(1), Florida Statutes....

...[4] On appeal, he contends that the information filed by the State failed to charge a crime. We agree and reverse. [5] Pertinent to the charge of causing bodily injury during the commission of a felony, the information filed by the State alleged that Mr. Moore "did, in violation of Florida Statutes 782.051(1) and 775.087(1), commit, aid or abet an act that caused the bodily injury to BUN LONG KAING while MARCUS A. MOORE was perpetrating or attempting to perpetrate the felony crime of Home-Invasion Robbery." The information was consistent with section 782.051 as it read when enacted in 1996. At that time, section 782.051, entitled "Felony Causing Bodily Injury," provided, in relevant part: Any person who perpetrates or attempts to perpetrate any felony enumerated in s. 782.04(3) and who commits, aids, or abets an act that causes bodily injury to another commits a felony of the first degree.... § 782.051(1), Fla....

...s 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.... § 782.051(1), Fla....

...For these reasons, the conviction must be reversed. As a result, we need not address the remaining issue that Mr. Moore presents. REVERSED and REMANDED. GRIFFIN and EVANDER, JJ., concur. NOTES [1] §§ 812.133(1), (2)(a), 775.087(2)(a)3., Fla. Stat. (2005). [2] §§ 782.051(1), 775.087(1), Fla....

...3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense. § 775.021(4)(a) & (b), Fla. Stat. (1999). Count I of the information charged the defendant with a felony causing bodily injury, contrary to section 782.051(1), Florida Statutes (Supp.1996), which provides: Any person who perpetrates or attempts to perpetrate any felony enumerated in s....

...782.04(3) and who commits, aids, or abets an act that causes bodily injury to another commits a felony of the first degree.... Sections 782.04(3)(d) & (e) identify the crimes of robbery and burglary, such that they are felonies falling under the umbrella of section 782.051(1)....

...§ 782.065. This instruction was adopted in 1994 [636 So. 2d 502] and amended in 2014. - 10 -  6.3 ATTEMPTED FELONY MURDER [ENUMERATED FELONY] [NON-ENUMERATED FELONY] § 782.051(1) and (2), Fla....

...Lesser Included Offenses No lesser included offenses have been identified for this offense. 6.3 ATTEMPTED FELONY MURDER [ENUMERATED FELONY] [NON-ENUMERATED FELONY] § 782.051(1) and (2), Fla....

... Aggravated Assault 784.021 8.2 Battery 784.03 8.3 Assault 784.011 8.1 Comment Section 782.051(1), Fla. Stat., applies where the defendant is alleged to have committed or attempted to commit a felony enumerated in section 782.04(3). Section 782.051(2), Fla....

...§ 782.065. This instruction was adopted in 2007 [962 So. 2d 310] and amended in 2014. See Battle v. State, 911 So. 2d 85 (Fla. 2005). - 14 -  6.3(a) ATTEMPTED FELONY MURDER — INJURY CAUSED BY ANOTHER § 782.051(3) Fla....

...institution or a county or municipal detention facility. Lesser Included Offenses No lesser included offenses have been identified for this offense. 6.3(a) ATTEMPTED FELONY MURDER – INJURY CAUSED BY ANOTHER § 782.051(3) Fla. Stat. CATEGORY ONE CATEGORY TWO FLA.STAT. INS. NO. None Attempted Manslaughter 782.07 & 6.6 by Act 777.04 Comment Section 782.051(3), Fla....

...INS. NO. Second degree 782.04(2) 7.4 (depraved mind) murder Manslaughter 782.07 7.7 Second degree 782.04(3) 7.5 (felony) murder Attempted felony 782.051(1) 6.3 murder Attempted 782.04(1) 6.2 premeditated murder Attempted second 782.04(2) & 6.4 degree murder 777.04 Attempted felony 782.051(2) 6.3 murder Third degree (felony) 782.04(4) 7.6 murder Vehicular homicide 782.071 7.9 Attempted felony 782.051(3) 6.3(a) murder Aggravated assault 784.021 8.2 Aggravated battery 784.045 8.4 Attempted 782.07 & 6.6 Manslaughter by Act 777.0...

...by his conviction for both offenses, the substance of his arguments on appeal, along with the cases cited to in his initial brief, relate primarily to the “intentional act” requirement found in the text of the attempted felony murder statute. See § 782.051(1), Fla....

...subject of larceny from the person or custody of another, with 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 is the use of force, violence, assault, or putting in fear”); § 782.051(1) (“Any person who perpetrates or 2 attempts to perpetrate any felony enumerated in s....

...Gray, 654 So.2d 552 (Fla.1995), as issued on May 4, 1995, before the August 13, 1996 commission of Defendant's offenses, abrogated prior decisional law recognizing the offense of attempted felony murder, with attempted felony murder not becoming a crime again until the enactment of section 782.051, effective October 1, 1996....

...on Kevin Burke with a firearm or deadly weapon (Count 1) and attempted premeditated murder upon Kevin Burke with a deadly weapon (Count 2). 1 1 Attempted felony murder is a first-degree felony, punishable by up to thirty years in prison. See § 782.051(2), Fla....

...In addition, none of the three exceptions apply. As shown above, the offenses do not require identical elements of proof. Nor are the offenses degrees of the same offense. As pointed out by the State, attempted felony murder is codified in section 782.051, Florida Statutes, and attempted first- 23 degree murder is codified in section 782.04, Florida Statutes....

...course of the commission of the offense, said defendant discharged a firearm or destructive device and as a result of the discharge, death or great bodily harm was inflicted upon [the victim], a human being in violation of 782.051(1) and 775.087 & 777.011, Florida Statutes ....

...We concluded that Williams’ claim of ineffectiveness was well taken “[b]ecause the information filed against [Williams] and the facts proffered to support the information used the same act for both attempted felony murder and the underlying attempted armed robbery.” Williams II, 83 So. 3d at 907; see also § 782.051(1), Fla....

...that the discharge of the firearm was intentional and not accidental. The gratuitous allegation in count 1 that Williams pointed a firearm at the victim does not vitiate the legally sufficient allegations in that count of attempted felony murder under section 782.051(1), Florida Statutes (2004): Attempted felony murder.— (1) Any person who perpetrates or attempts to perpetrate any felony enumerated in s....

...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 .... ” § 782.051(1), Fla....

...State, 730 So.2d 322, 323 (Fla. 1st DCA 1999). Reversed and remanded for further proceedings consistent herewith. Effective October 1, 1996 the legislature created the offense of felony causing bodily injury, ch. 96-359, § 1, Laws of Fla. (codified as § 782.051, Fla....

charged with attempted felony murder under section 782.051, Florida Statutes (2013), he was potentially

...harge accordingly. In his first point on appeal, Braham argues there was insufficient evidence to support a conviction for felony causing bodily injury because grand theft auto is not an enumerated offense that could sup *299 port a conviction under section 782.051(1), Florida Statutes (1997)....

...Of the felonies enumerated in section 782.04(3), only carjacking and robbery are relevant to this case. See § 782.04(3), Fla. Stat. (1997). Braham claims that because grand theft auto is not an enumerated offense under section 782.04(3), his conviction of felony causing bodily injury under section 782.051(1) was erroneous....

...hed the requisite enumerated offense for the felony causing bodily injury charge must fail. Without an enumerated felony to base the felony causing bodily injury charge on, the state failed to prove one of the elements of the charge it brought under section 782.051(1)....

...shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense. The record clearly indicates that the state proved Braham committed a felony causing bodily injury under section 782.051(2), Florida Statutes (1997). A felony causing bodily injury under section 782.051(2) is not a lesser included offense of a felony causing bodily injury under section 782.051(1) because each crime contains different elements. However, the question of whether a felony causing bodily injury charge pursuant to section 782.051(2) is a lesser statutory degree of the offense brought under section 782.051(1) must be addressed. Although a felony causing bodily injury is a first degree felony when brought pursuant to either section 782.051(1) or section 782.051(2), a conviction under section 782.051(1) is an offense ranked in level 9 of the sentencing guidelines while a charge under section 782.051(2) is an offense ranked in level 8 of the sentencing guide *300 lines. See §§ 782.051(1) & (2), Fla. Stat. (1997). The enacting legislation of section 782.051 states it is an act “relating to offenses against persons; creating s. 782.051, F.S.; describing the offense of felony causing bodily injury and providing penalties therefor; ranking offenses for purposes of sentencing guidelines; providing an effective date.” Ch....

...The fact that the offenses were ranked for purposes of the sentencing guidelines suggests that each subsection dealt with a separate degree of the offense. Further, the discrepancy in sentencing provisions can be explained by the fact that the enumerated felonies necessary to obtain a conviction under section 782.051(1) are generally more serious than those required for conviction under section 782.051(2)....

...1 According to Black’s Law Dictionary, “degrees of crime” is a term used to refer to conduct that is punished to a greater or lesser extent depending upon the existence of one or more factors. See BLACK’S LAW DICTIONARY 424 (6th ed.1990). The legislature created the crime of felony causing bodily injury and enacted section 782.051. Because the conduct prohibited in section 782.051 is punished to a greater or lesser extent depending upon the existence of one or more factors, it follows that subsections (1), (2) and (3) provide for separate and distinct degrees of the crime of felony causing bodily injury....

...ame core offense. These are ‘degree factors’ and they are different from ‘degrees of crime.’ ” Anderson v. State, 669 So.2d 262, 264 (Fla. 5th DCA 1995), decision approved by, State v. Anderson, 695 So.2d 309 (Fla.1997). The subsections of section 782.051 are essentially varieties of the same core offense: felony causing bodily injury. Thus, it follows that a violation of section 782.051(2) is a lesser statutory degree of felony causing bodily injury than a charge brought pursuant to section 782.051(1). We therefore reverse Braham’s conviction and sentence for felony causing bodily in'jury pursuant to section 782.051(1) and, pursuant to section 924.34, remand the case with directions to enter a judgment and sentence for the lesser degree of felony causing bodily injury under section 782.051(2)....

...We affirm on all other points raised by Braham as they are without merit. AFFIRMED IN PART; REVERSED IN PART AND REMANDED WITH DIRECTIONS. FARMER and STEVENSON, JJ., concur. . Any felony other than a felony enumerated in section 782.04(3) can satisfy the underlying felony requirement in a charge brought pursuant to section 782.051(2). See § 782.051(2), Fla....

...Weatherspoon filed this appeal, and his arguments center on his convictions for attempted first degree murder. Weatherspoon argues that the trial court erred in instructing the jury on a crime with which he was not charged, i.e., attempted felony murder under section 782.051....

...defendant with first degree premeditated murder also allows the state to pursue a theory of first degree felony murder, and the same logic applies to attempted first degree murder. Further, because the state claims there is no material difference between attempted felony murder under section 782.051, Florida Statutes, and the old common law crime, the state argues that the information’s citation to the statutes for attempt and for felony murder was sufficient to place Weatherspoon on notice of its intent to pursue attempted felony murder....

...State, 84 So. 3d 1158, 1161 (Fla. 2d DCA 2012) (emphasis supplied). The information in this case charged attempted first degree premeditated murder. It did not contain the essential elements of attempted felony murder and did not contain a citation to section 782.051, the attempted felony murder statute....

...By rejecting a further extension of these legal fictions, upon which Sloan and its progeny are based, Gray also necessarily meant that common law attempted felony murder could not be merely a sub-category of statutory attempted premeditated murder. In reaction to Gray, the Florida Legislature enacted section 782.051, Florida Statutes, which made attempted felony murder a separate crime with the following elements: 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[.] § 782.051(1), Fla....

...Instead, section 782.04(3) states the essential elements of one form of murder in the second degree, although the list of enumerated felonies is identical to the list in section 784.04(1)(b), the felony murder statute. Thus, it cannot be argued that the Legislature considered section 782.051 to be simply a subset of first degree murder under section 782.04(1). Regarding the attempted felony murder statute, the supreme court has explained: “[I]n order to avoid the problems set forth in Gray, the Legislature added an...

...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....

...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 non- existent 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....

...him repeatedly which could have caused the death of the said Glen Moore, contrary to F.S. 782.04(1)(a), F.S. 777.011, F.S. 777.04(1) and F.S. 812.13(2)(c). Id. at 640. The information did not cite the post-Gray attempted felony murder statute, section 782.051....

reenacted the offense of attempted felony murder. See § 782.051, Fla. Slat. (1999); Brown v. State, 761 So.2d

...offenses which were instructed on at trial. State v. Wilson, 680 So.2d 411, 412-13 (Fla. 1996). [6] Although not applicable to this case, the Legislature subsequently reenacted the offense of attempted first-degree felony murder, which is currently section 782.051, Florida Statutes (2009)....

...We address each in turn. McCray first argues that his conviction for attempted felony murder cannot stand because his use of the gun extended throughout the underlying felony (the robbery) and therefore no intentional act separated the robbery from the attempted felony murder. See § 782.051(1), Fla....

...In other words, but for Milton’s shooting, there would have been no attempted murder, so his shooting was an essential element. And that meant the State could not satisfy its burden to show—as an element of attempted felony murder—“an intentional act that is not an essential element of the felony.” § 782.051(1). But our case is unlike Milton....

...rrant or Summons for Offender Under Supervision, alleging that Ucciferri violated the terms of his supervised release: 1.) by committing the offenses of attempted homicide and aggravated battery with a deadly weapon in violation of Florida Statute §§ 782.051 and 784.045(1)(2); and 2.) by having in his possession a firearm as evidenced by his arrest on November 30, 1999....

...113 to reflect the proper citations to the Florida Statutes as follows: Ucciferri violated his supervised release by committing the offenses of attempted homicide and aggravated battery with a deadly weapon, in violation of Fla.Stat. § 782.04(1)(a)(1) and Fla.Stat. § 777.04 (in place of Fla.Stat. § 782.051), and in violation of Fla.Stat....

...it is a continuation of the same prosecution, timely commenced will not be 4 The 2004 information includes a caption as to Count 1, “MURDER 1st DEGREE/ATTEMPT 782.04(1) & 777.04(1) F1,” omitting reference to the attempted felony murder statute, section 782.051, Fla....

...enumerated in s. 782.04(3)2 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 . . . . § 782.051(1), Fla....

...DAVID MONTESINO, a human being and in the commission of said felony, the defendant carried, displayed, used, threatened, or attempted to use 5  a weapon, to wit: A FIREARM in violation of s. 782.051(1) and s. 775.087, Fla....

...7 establish that Newbhard successfully completed the underlying robbery; rather, the attempted felony-murder offense could be established by proof that Newbhard committed or attempted to commit the underlying robbery. See § 782.051(1), Fla. Stat....

...Artis testified that he voluntarily handed the money to Coicou. The use of force occurred after Artis handed the money to Coicou The use of force, the shooting, was itself an essential element of the underlying robbery and was not an independent act as required by section 782.051(1)....

...GREAT PUBLIC IMPORTANCE PER CURIAM. We grant the appellant’s motion to certify a question of great public importance and certify the following question to the supreme court: 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 NON- EXISTENT 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? We deem it a question of great public importance because the issue affects all attempted felony murder prosecutions and how the state charges a defendant for attempted felony murder after the enactment of section 782.051, Florida Statutes. CIKLIN, C.J., WARNER and GERBER, JJ., concur. * * * 2