       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                        LOUIS DAVID JOHNSON,
                              Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D18-3528

                              [July 3, 2019]

   Appeal of order denying rule 3.850 motion from the Circuit Court for
the Fifteenth Judicial Circuit, Palm Beach County; John S. Kastrenakes,
Judge; L.T. Case No. 50-2008-CF-009942-BXXX-MB.

   Louis David Johnson, Miami, pro se.

   Ashley Moody, Attorney General, Tallahassee, and Deborah Koenig,
Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

   Louis Johnson appeals the summary denial of his untimely motion for
post-conviction relief filed pursuant to Florida Rule of Criminal Procedure
3.850(b)(2). Appellant argues that his attempted first-degree murder
conviction should be vacated pursuant to Weatherspoon v. State, 214 So.
3d 578 (Fla. 2017). We affirm. However, we certify a question of great
public importance.

    In 2008, the State charged Appellant, along with a co-defendant, with
attempted first-degree murder and robbery with a firearm. At trial, the
State argued theories of both attempted first-degree murder and attempted
first-degree felony murder to support a conviction for attempted first-
degree murder. The court also provided a jury instruction for attempted
first-degree felony murder. The jury convicted Appellant as charged on
both counts. Appellant is currently serving a life sentence for his
convictions.

  In the underlying proceedings, Appellant filed a successive and
untimely motion for post-conviction relief. Appellant contended that his
motion was timely under Florida Rule of Criminal Procedure 3.850(b)(2)1
due to a recent change in law pursuant to Weatherspoon.                    In
Weatherspoon, the Florida Supreme Court held that the State must charge
the crime of attempted felony murder to be entitled to a jury instruction
on that crime and to proceed under that theory. 214 So. 3d at 589. The
court concluded that a defendant is denied due process when there is a
“conviction on a charge not made in the information or indictment.” Id. at
583. However, the court noted that “[o]ur precedent does not make the
failure to charge per se reversible,” and ‘“[g]enerally the test for granting
relief based on a defect in the information is actual prejudice to the
fairness of the trial.”’ Id. at 584 (quoting Price v. State, 995 So. 2d 401,
404 (Fla. 2008)).

   Appellant argued in his post-conviction motion that, based on
Weatherspoon, he was entitled to a new trial because the State used an
attempted felony murder theory at trial without charging attempted felony
murder in the information. The trial court denied Appellant’s motion and
adopted the State’s response that Appellant’s motion was untimely and
the Florida Supreme Court has not held that Weatherspoon applies
retroactively. This appeal follows.

   Because the Florida Supreme Court has not held that Weatherspoon
applies retroactively, we conclude that the trial court did not err by
denying Appellant’s motion as untimely. However, we note that although
Weatherspoon stated that the failure to charge is not “per se reversible,”
the Florida Supreme Court concluded:

         The failure to properly charge the defendant with the crimes
         that the State is pursuing is both a violation of article I,
         section 16, of the Florida Constitution and, as applied to
         this case, a violation of defendant’s right to notice of the

1   Specifically, Rule 3.850(b)(2) provides:

         No other motion shall be filed or considered pursuant to this rule if
         filed more than 2 years after the judgment and sentence become
         final unless it alleges that:

         ...

         (2) the fundamental constitutional right asserted was not
         established within the period provided for herein and has been held
         to apply retroactively, and the claim is made within 2 years of the
         date of the mandate of the decision announcing the retroactivity . .
         ..

                                           2
      charges against him so as to provide the defendant with
      due process of law under article I, section 9, of the Florida
      Constitution.

Id. at 580 (emphasis added).

   We therefore certify the following question of great public importance:

      DOES THE CHANGE IN DECISIONAL LAW ANNOUNCED IN
      WEATHERSPOON V. STATE, 214 SO. 3D 578 (FLA. 2017),
      APPLY RETROACTIVELY TO CONVICTIONS THAT WERE
      FINAL AT THE TIME THAT DECISION WAS RENDERED?

   Affirmed.

GROSS, DAMOORGIAN and CIKLIN, JJ., concur.

                           *        *         *

   Not final until disposition of timely filed motion for rehearing.




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