       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                       CALVIN WEATHERSPOON,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D12-2775

                             [June 24, 2015]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach   County;     Karen     Miller,    Judge;     L.T.    Case     No.
2008CF017526BXXXMB.

   Ira Karmelin, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A.
Tringali, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

   We affirm the convictions and sentences of appellant. As to his claim
that the trial court erred in instructing the jury on attempted felony
murder, we have previously addressed this issue in the appeal of his co-
defendant. See Bell v. State, 152 So. 3d 714 (Fla. 4th DCA 2014). As to
his claim that his confession to the robbery should have been suppressed
because the detective continued to question him after he stated that he
wanted to contact a lawyer, we conclude that his comments were equivocal
and did not require the detective to cease questioning him. See Spivey v.
State, 45 So. 3d 51, 54 (Fla. 1st DCA 2010).

CIKLIN and GERBER, JJ., concur.
WARNER, J., dissents with opinion.

WARNER, J., dissenting.

   Although I was on the panel affirming the attempted murder conviction
of appellant’s co-defendant in Bell v. State, 152 So. 3d 714 (Fla. 4th DCA
2014), I now disagree with the analysis in that opinion regarding the trial
court’s instruction on attempted felony murder, the same issue presented
in this case. In Bell we held that an instruction on attempted felony
murder was not error, even though the state had not charged attempted
felony murder in the information. We relied on cases which held that an
instruction on felony murder was not error when the state charged
premeditated murder. However, because attempted felony murder is now
a separate crime in a separate statute, the earlier cases do not control this
issue. Because I believe that this is an issue of some importance in how
the state charges attempted felony murder, I write to explain the analysis
that I think should apply in this case.

    Appellant challenges his conviction for attempted first degree murder.
He contends that the trial court erred in instructing the jury on attempted
felony murder when: the state did not charge him with that crime; the
charge of attempted first degree premeditated murder did not include the
essential elements of attempted felony murder nor did it cite to the
attempted felony murder statute; he objected to the jury instruction at
trial; and he was prejudiced in his trial preparation and strategy as a result
of the state’s failure to specifically charge attempted felony murder. I
would hold that the trial court erred in instructing the jury.

    Appellant Weatherspoon was one of four co-defendants charged with
the November 2008 robbery of a Dunkin’ Donuts. During the robbery, co-
defendant James Herard shot two people inside the store and one in the
parking lot. All four defendants were charged pursuant to a single
information containing nineteen total counts. These included 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.

    The three attempted first degree murder counts (one for each victim)
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

                                      2
      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 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 and co-defendant Tharod Bell were tried by the same
prosecutors at the same time before separate juries; the juries combined
to hear evidence relevant to both cases, and legal issues relevant to both
cases were often argued together. When Bell’s counsel made his opening
argument, he told the jury that the state would have to prove that the
defendant had a “conscious intent [that] these people be shot.” The state
objected and claimed that it could pursue an attempted felony murder
theory, to which defense counsel objected that the state had not charged
attempted felony murder. All counsel agreed to argue this at a later time.

   Subsequently, in opening statements in Weatherspoon’s case, the state
argued Weatherspoon knew that one of the reasons for the robbery was to
give co-defendant Herard a chance to kill people, as part of a “body count
competition.” Weatherspoon’s counsel argued he had no idea Herard
intended to kill people during the robbery, largely relying on statements
he made to this effect during a police interview.

   The issue of whether the state could pursue an attempted felony
murder theory was raised again when the parties began to discuss jury
instructions for both trials. Bell and Weatherspoon objected to the state’s
proffered instruction on attempted felony murder, on the grounds that this
theory was not pled in the information. They asserted they had first
become aware of the state’s intention to invoke an attempted felony
murder theory during opening statements and argued their clients were
prejudiced because they had admitted to the underlying felony (robbery)
as part of trial strategy.



                                    3
   Ultimately, the trial court determined that it would read, and did read,
the following standard attempted felony murder instruction to the jury:

         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:
         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.

(Emphasis supplied). See Fla. Std. Jury Instr. (Crim.) 6.3.

   In closing statements in the Weatherspoon trial, the state relied on both
an attempted premeditated murder and an attempted felony murder
theory, instructing the jury it could convict under either one.
Weatherspoon continued to argue that he could not be convicted unless
he knew “or should have known that the shooting was going to happen.”
The verdict form asked for a general verdict for attempted first degree
murder and did not differentiate between attempted premeditated murder
and attempted felony murder.


                                     4
    During deliberations, the Weatherspoon 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.” The
prosecutor commented, “it sounds like they were probably thinking we had
to delineate which one[.]” The trial court essentially told the jury to reread
and rely on the written instructions. The jury ultimately returned a verdict
of guilty on all of the attempted first degree murder counts and all but one
of the other counts, none of which are challenged in this appeal.
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. While the state concedes that the information did
not refer to the statutory section, it argues that an information charging a
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. Contrary to the state’s contention, I
conclude that case law which holds that a charge of first degree murder
includes both premeditated murder and felony murder does not apply to
attempted felony murder, which constitutes a separate statutory crime
containing elements not included in the charge of felony murder.

    Article I § 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[.]” “Thus, 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, 612-13 (1881)).
However, due to Florida’s liberal criminal discovery rules, the Florida
Supreme 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 nor embarrassed in the preparation of his
defense nor exposed to double jeopardy.” State v. Dilworth, 397 So. 2d
292, 294 (Fla. 1981).

   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

                                      5
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.” Fla. R. Crim. P. 3.140(d)(1). To
fail to charge the essential elements of a crime is a violation of due process:

      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 Gray, 435 So. 2d at 818; see also Thornhill v.
      Alabama, 310 U.S. 88, 60 S. Ct. 736, 84 L. Ed. 1093 (1940);
      De Jonge v. Oregon, 299 U.S. 353, 57 S. Ct. 255, 81 L. Ed. 278
      (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 (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) (emphasis supplied).
Although a charge may be sufficient where the essential elements have
been omitted but the correct statute was cited, see Dubois v. State, 520
So. 2d 260, 265 (Fla. 1988), “an 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) (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.       Thus, the information was
fundamentally defective in charging attempted felony murder.

   The state argues, however, that it need not charge attempted felony
murder in order to be entitled to an instruction on it, because this charge
is subsumed within the attempted premeditated murder charge, relying
on case law interpreting the first degree murder statutes. Those cases,
however, are inapplicable to attempted felony murder.


                                      6
   A long line of supreme court cases has held 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.” O’Callaghan v. State, 429 So.
2d 691, 695 (Fla. 1983) (quoting State v. Pinder, 375 So. 2d 836, 839 (Fla.
1979)). The logic of this holding derives from the court’s analysis of the
definition of first degree murder in the statute, which at one time contained
both premeditated murder and felony murder in the same sentence:

          The unlawful killing of a human being, when perpetrated
      from a premeditated design to effect the death of the person
      killed or any human being, or when committed in the
      perpetration of or in the attempt to perpetrate any arson, rape,
      robbery or burglary, shall be murder in the first degree, and
      shall be punishable with death.

Sloan v. State, 69 So. 871, 872 (Fla. 1915) (quoting section 3205, General
Statutes of 1906). The court adopted the position of the majority of states
that a charge of premeditated murder under this statute was sufficient to
charge both premeditated and felony murder, “because the perpetration,
or attempt to perpetrate, any of said felonies [enumerated in the statute],
during which a homicide is committed, stands in lieu of and is the legal
equivalent of premeditation[.]” Killen v. State, 92 So. 2d 825, 828 (Fla.
1957). The current murder statute similarly defines first degree murder
as either premeditated or felony murder within the same subsection. See
§ 782.04(1)(a)1-2., Fla. Stat. (2008).

   The logic of Sloan and Killen applied to attempted felony murder until
State v. Gray, 654 So. 2d 552 (Fla. 1995), which held that “the crime of
attempted felony murder is logically impossible” because “a conviction for
the offense of attempt requires proof of the specific intent to commit the
underlying crime.” Id. at 553. Gray adopted Justice Overton’s dissent in
Amlotte v. State, 456 So. 2d 448, 450-51 (Fla. 1984), where he concluded
that:

      [T]he 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

                                     7
      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.

(Emphasis supplied). 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. Stat. (2008). Interestingly, section 782.04(3), referred
to in the statute, is not the provision for first degree murder, including
felony murder. 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 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.’” Milton v. State,
39 Fla. L. Weekly S708, *1 (Fla. Nov. 20, 2014) (holding that the “act of
discharging a firearm can[not] satisfy the ‘intentional act’ element of
attempted felony murder when the underlying felony is attempted murder
and the same individuals are the victims of both crimes”); see also Battle
v. State, 911 So. 2d 85, 89-90 (Fla. 2005) (holding that “failing to include
the phrase ‘that was not an essential element of the felony’ in the
attempted felony murder jury instructions was erroneous because an
essential element of the crime charged was omitted[,]” but finding that this
element was not in dispute and therefore the omission was not
fundamental error that could be raised for the first time on appeal).


                                     8
    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 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 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. Given
the information’s failure to cite the correct statute, its failure 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.

   Therefore, I conclude that it was error for the trial court, over the
strenuous objection of the appellant, to instruct the jury on a crime not
charged. Moreover, the state relied on the felony murder theory in its
closing. Thus, even without the objection, the giving of the instruction on
a crime not charged would be fundamental error. See State v. Weaver, 957
So. 2d 586, 589 (Fla. 2007) (no fundamental error occurred where jury
was instructed on an element of a crime not charged but state never relied
on uncharged element).

    Because the trial court did not submit a verdict form to the jury that
differentiated between attempted felony murder and attempted
premeditated murder, we cannot tell if the jury relied upon the instruction
on the uncharged crime to find appellant guilty of attempted murder. An
analogous situation arose after Gray abolished the common law crime of
attempted felony murder. In Valentine v. State, 688 So. 2d 313 (Fla. 1996),

                                     9
the Florida Supreme Court vacated a conviction for attempted first degree
murder based on Gray, finding that the jury had been instructed on both
attempted felony murder and attempted premeditated murder, and it was
impossible to tell on which theory the jury had relied. Id. at 317. As
attempted felony murder was no longer a crime pursuant to Gray, the
supreme court determined that “the jury may have relied on this legally
unsupportable theory[.]” Id.; see generally Fitzpatrick v. State, 859 So. 2d
486, 490-91 (Fla. 2003) (“[A] general verdict is invalid when it rests on
multiple bases, one of which is legally inadequate[,] . . . and it is impossible
to tell which ground the jury selected.”).

   The state relies on White v. State, 973 So. 2d 638 (Fla. 4th DCA 2008),
in which White argued: (1) he had been convicted of a non-existent crime,
attempted felony murder, because this crime had been abolished in Gray;
and (2) his due process rights were violated because he was convicted of a
crime not charged in the information. Id. at 639, 641. I find White
distinguishable. In White, the information provided:

      RICHARD ALLEN WHITE ... did unlawfully attempt to commit
      murder in the first degree in that Richard Allen White, while
      engaged in the perpetration of or the attempted perpetration
      of the crime of Robbery, did cause great bodily harm to Glen
      Moore, a human being, by intentionally kicking and striking
      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. It did, however, allege the commission
of robbery in the attempted murder count, and it further alleged an
intentional act which was not an essential element of the crime of robbery.
Thus, even though the information did not cite to the attempted felony
murder statute, all of the essential elements of the crime were alleged.
Furthermore, White never raised an objection to the charging document
or to the jury instructions at trial. Id. at 640. Both the prosecution and
the defense in White tried the case as an attempted premeditated murder
case, and the court instructed the jury on attempted premeditated murder.
Id. at 641. We concluded that no fundamental error occurred because any
defect in the information did not prevent White from a defense at trial. Id.

   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,

                                      10
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.
Weatherspoon’s and Bell’s counsel asserted that they had been prejudiced
by the state’s late assertion of the attempted felony murder theory,
because they had chosen to admit to the underlying felonies (robbery),
which essentially guaranteed a conviction for attempted felony murder.
See Dilworth, 397 So. 2d at 294 (“an information is legally sufficient if it
expresses the elements of the offense charged in such a way that the
accused is neither misled nor embarrassed in the preparation of his
defense nor exposed to double jeopardy”); Fla. R. Crim. P. 3.140(d)(1) (error
in citation to statute shall not invalidate conviction if it “did not mislead
the defendant to the defendant’s prejudice”). Questions from the jury
during deliberations also indicate the jury struggled with the issue of
attempted felony murder versus attempted premeditated murder. Thus,
instructing the jury on an uncharged crime constituted reversible error.

   This preserved error should require reversal for a new trial on
attempted first degree murder. I therefore dissent from that portion of the
majority opinion relying on Bell.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




                                     11
