          Supreme Court of Florida
                                   ____________

                                  No. SC11-1338
                                  ____________

                              AHMAD R. MILTON,
                                  Petitioner,

                                         vs.

                             STATE OF FLORIDA,
                                 Respondent.

                               [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. Stat. (2006). Specifically, we consider

whether the act of discharging a firearm can 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. We conclude that because the

defendant’s act of discharging a firearm constitutes an essential element of the

underlying felony of attempted murder, this act of discharging a firearm cannot
also constitute the “intentional act that is not an essential element of the underlying

felony,” as is required to establish attempted felony murder. Id.

      In Milton v. State, 126 So. 3d 273, 274 (Fla. 3d DCA 2011), the Third

District Court of Appeal affirmed the defendant’s three convictions for attempted

felony murder, which were each predicated upon the underlying felony of

attempted second-degree murder, even though as to each separate count, the

defendant’s sole act was the discharge of a firearm at a group of individuals who

were the victims of both the attempted felony murder and the underlying felony of

attempted second-degree murder. Conversely, in Tucker v. State, 857 So. 2d 978,

979-80 (Fla. 4th DCA 2003), the Fourth District Court of Appeal vacated a

defendant’s convictions for attempted felony murder, which were predicated upon

attempted premeditated murder of those same victims, concluding that the

defendant’s discharge of a firearm did not satisfy the “intentional act” element of

attempted felony murder because “[n]o act distinguishe[d] the attempted

premeditated murder from the attempted felony murder.” We accepted jurisdiction

to resolve the conflict. See art. V, § 3(b)(3), Fla. Const.

      We quash the Third District’s decision in Milton and approve the Fourth

District’s decision in Tucker, to the extent it is consistent with our analysis. While

the act of discharging a firearm may be able to support attempted second-degree

murder, which is a second-degree felony, the discharge of a firearm at the same


                                         -2-
individuals cannot support attempted felony murder, which is a first-degree

felony.1 Accordingly, we vacate the defendant’s convictions for attempted felony

murder and, after reviewing the jury instructions given by the trial court, we also

determine that the instructions were fundamentally erroneous. We therefore

remand this case for a new trial on the underlying felony of attempted second-

degree murder.

                                        FACTS

      In April 2006, the defendant, Ahmad Milton, discharged multiple gunshots

at a crowd of people who were standing in front of a house. As a result of this

shooting, Milton was charged with one count of second-degree murder, three

counts of attempted felony murder that were each predicated upon attempted

second-degree murder, and one count of shooting into a dwelling. For each count

of attempted felony murder, the State charged and the jury was instructed that the

same individuals constituted the victims of both the attempted felony murder and

the underlying felony of attempted second-degree murder. The State asserted that


       1. 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. Stat.
(stating that any defendant found guilty of attempted felony murder “commits a
felony of the first degree”); § 777.04(4)(c), Fla. Stat. (2006) (stating that if an
“offense attempted . . . [is] a felony of the first degree . . . the offense of criminal
attempt . . . is a felony of the second degree”); § 782.04(2), Fla. Stat. (2006)
(providing that second-degree murder is a first-degree felony).

                                          -3-
the intentional act that could have resulted in the victims’ deaths, but that was not

an essential element of the underlying attempted second-degree murders, was

Milton’s act of discharging a firearm.

      Ultimately, the jury acquitted Milton of second-degree murder in count one,

but convicted him of each of the attempted felony murder charges in counts two,

three, and four, as well as the separate charge of shooting into a dwelling. Milton

was sentenced to three concurrent life sentences with twenty year mandatory-

minimum terms of imprisonment for each of the attempted felony murder

convictions and a concurrent sentence of thirty years’ imprisonment for shooting

into a dwelling.

      On appeal, the Third District affirmed Milton’s attempted felony murder

convictions, as well as Milton’s conviction for shooting into a dwelling. Milton,

126 So. 3d at 274-75. In affirming Milton’s convictions for attempted felony

murder, the Third District determined that discharging a firearm at the group of

individuals in front of the house satisfied the requisite “intentional act” element of

attempted felony murder. Id.

      The Fourth District reached the opposite conclusion on the same “intentional

act” issue in Tucker, 857 So. 2d at 979. Although Tucker involved attempted

premeditated murder and not attempted second-degree murder as the underlying

felony, both cases involved defendants who were convicted of attempted felony


                                         -4-
murder with attempted murder as the predicate felony based on having fired

multiple bullets at multiple victims during a single episode.

      The defendant in Tucker was convicted of two counts of attempted first-

degree murder and two counts of attempted felony murder, which were each

predicated upon the attempted first-degree murder charges. Id. In contrast to the

Third District’s decision in Milton, where the defendant was also charged with

attempted felony murder with a predicate felony of attempted murder, the Fourth

District in Tucker vacated the defendant’s convictions for attempted felony

murder, concluding that “[n]o 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.” 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. We granted review of Milton to address this

conflict.

      In addition to the conflict issue before the Court, Milton raises three other

issues on appeal: (1) the trial court’s jury instructions were fundamentally

erroneous; (2) the final amended information was defective; and (3) his convictions

for shooting into a dwelling and attempted felony murder violate double jeopardy.

We conclude that Milton is entitled to relief on the conflict issue, address the jury




                                         -5-
instructions claim to determine the appropriate remedy, and decline to address his

two other claims because they are moot in light of our analysis.

                                    ANALYSIS

      The conflict issue in this case is whether in proving attempted felony

murder, which is predicated upon the underlying felony of attempted murder and

where the same individuals constitute the victims of both the attempted felony

murder and the underlying felony of attempted murder, discharging a firearm at

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. Stat. In addressing this question, we first review the crime of

attempted felony murder under Florida law. Then, we turn to the conflict issue,

concluding that under these factual circumstances, discharge of a firearm cannot

satisfy the “intentional act” element of attempted felony murder in the absence of

an intentional act that is not an essential element of the underlying felony that

distinguishes the attempted felony murder from the underlying felony. Finally, in

order to determine the appropriate remedy, we address Milton’s claim that the trial

court’s jury instructions were fundamentally erroneous.

        I. The “Intentional Act” Element of Attempted Felony Murder




                                         -6-
      Prior to its codification in the Florida Statutes, this Court concluded that

attempted felony murder was a common law offense under Florida law. See

Amlotte v. State, 456 So. 2d 448, 449 (Fla. 1984). However, in State v. Gray, 654

So. 2d 552, 552-53 (Fla. 1995), we receded from our holding in Amlotte. 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. 98-204, § 12, at 1970, Laws of Fla.

In this amendment, in 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.” 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. 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, punishable 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 Criminal Punishment
      Code. Victim injury points shall be scored under this subsection.

                                         -7-
§ 782.051(1), Fla. Stat. (2006).

      Section 782.04(3) then enumerated the felonies upon which attempted

felony murder could be predicated. These included offenses, when “committed by

a person engaged in the perpetration of, or in the attempt to perpetrate,” felonies

such as robbery, burglary, kidnapping, and carjacking that are more readily

distinguishable from the charged attempted felony murder and for which the

“intentional act” element may be more easily satisfied than when murder

constitutes the underlying felony. § 782.04(3), Fla. Stat. (2006).

      However, the Legislature also included, as a potential underlying felony,

“[m]urder of another human being.” § 782.04(3)(o), Fla. Stat. Therefore, based on

this statutory scheme, a defendant may be convicted of attempted felony murder

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. Stat.

      Relying on this statutory scheme, the State in this case charged Milton with

three counts of attempted felony murder, with attempted second-degree murder as

the underlying felony in accordance with section 782.04(3)(o). As this Court has

previously stated, attempted second-degree murder has two elements: “(1) the

defendant intentionally committed an act that could have resulted, but did not


                                         -8-
result, in the death of someone, and (2) the act was imminently dangerous to

another and demonstrated a depraved mind without regard for human life.”

Coicou, 39 So. 3d at 241 (quoting State v. Florida, 894 So. 2d 941, 945-46 (Fla.

2005)).

      Milton contends that because discharge of a firearm was an essential element

of attempted second-degree murder, in that it was the only act capable of satisfying

the element of attempted second-degree murder requiring that the defendant

“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). The State counters that because Milton fired multiple gun shots, only

the first shot fired was an essential element of the predicate attempted second-

degree murders and any subsequent shots were not essential to the commission of

the underlying felony. The State reasons that after Milton fired the initial gunshot,

the attempted second-degree murder was completed and any subsequent shots were

independent of that felony.

      In its decision below, the Third District affirmed Milton’s convictions for

attempted felony murder based upon Milton’s “intentional act” of discharging a

firearm. However, a review of the Third District’s decision illustrates two

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. However, although naming attempted felony murder as the

pertinent crime, the Third District erroneously cited to sections 777.04(1) and

782.04(2), Florida Statutes (2006), which govern attempted second-degree

murder—a crime that was the underlying felony but with which Milton was not

charged. See Milton, 126 So. 3d at 274. This error may have led the Third District

to the erroneous conclusion it reached below.

      Second, in affirming Milton’s attempted felony murder convictions, the

Third District erroneously relied on double jeopardy jurisprudence. That analysis

was inapposite, though, because double jeopardy concerns are not implicated in

this case, as Milton was not charged with both attempted felony murder and the

underlying felony of attempted second-degree murder. Specifically, the Third

District relied on Brinson v. State, 18 So. 3d 1075, 1077 (Fla. 2d DCA 2009),

which involved the crime of felony murder rather than attempted felony murder.

In Brinson, the defendant and his associates fired multiple gunshots at one victim,

but struck and killed a different victim. Id. Based on this shooting, Brinson was

convicted of first-degree murder of one victim and attempted second-degree

murder of another. Id.




                                       - 10 -
      On appeal, Brinson argued that the attempted second-degree murder of one

victim could not serve as the predicate felony for the charge of felony murder of

the other victim because his dual convictions for those crimes violated the

prohibition against double jeopardy. Id. The Second District Court of Appeal

denied Brinson’s claim, explaining that his dual convictions did not violate double

jeopardy because the dual convictions did “not doubly punish Mr. Brinson for a

single homicide.” Id. at 1078.

      Because Brinson did not involve the crime of attempted felony murder,

which requires an element not found in felony murder—the occurrence of an

“intentional act” that is not an essential element of the underlying felony—and

because Brinson turned on inapplicable double jeopardy considerations, it is not

relevant to this case. Thus, the Third District’s reliance on Brinson in affirming

Milton’s attempted felony murder convictions was erroneous.

      We agree, instead, with the Fourth District’s rationale in Tucker, in which

the Fourth District vacated a defendant’s convictions for attempted felony murder

that were predicated on the underlying felony of attempted murder. See Tucker,

857 So. 2d at 979. The Fourth District reasoned that where a defendant is charged

with attempted felony murder, which is predicated on the underlying felony of

attempted murder, and the defendant undertakes only one act—discharging a

firearm—“[n]o act distinguishes the attempted [murder] from the attempted felony


                                        - 11 -
murder.” Id. Although the State attempts to differentiate between each shot

discharged by Milton and asserts that only Milton’s first shot was essential in

satisfying the underlying felony of attempted second-degree murder, we reject this

argument.

      We hold that Milton’s single act of discharging a firearm did not satisfy the

“intentional act” element of attempted felony murder, as it was an essential

element of the underlying attempted second-degree murder. Therefore, because

the State cannot satisfy each element of the attempted felony murder statute,

Milton’s attempted felony murder convictions must be vacated.

          II. Jury Instructions Relating to Attempted Felony Murder

      Milton also argues that the jury instructions given by the trial court on

attempted felony murder were fundamentally erroneous. In light of our conclusion

that his convictions for attempted felony murder must be vacated, we address this

issue to determine whether this case should be remanded with instructions to enter

judgment on the underlying felony of attempted second-degree murder or whether

Milton is entitled to a new trial. Cf. Coicou, 39 So. 3d at 244 (concluding that a

case-by-case analysis is warranted when determining if attempted second-degree

murder is a lesser-included offense of attempted felony murder permitting the

appellate court to direct entry of a judgment for attempted second-degree murder,

or whether a new trial is warranted).


                                        - 12 -
      After reviewing the jury instructions given by the trial court on each of

Milton’s attempted felony murder charges, we conclude that, although Milton did

not object to the instructions, these instructions were fundamentally erroneous

because they did not accurately recite the elements necessary to find that Milton

committed the underlying felony of attempted second-degree murder. Instead, the

trial court added an additional element to the standard jury instruction on attempted

felony murder and, rather than instructing the jury on the underlying felony of

attempted second-degree murder, actually instructed the jury on the underlying

felony of second-degree murder.

      “This Court has long held that defendants have a fundamental right ‘to have

a Court correctly and intelligently instruct the jury on the essential and material

elements of the crime charged and required to be proven by competent evidence.’ ”

Battle v. State, 911 So. 2d 85, 88 (Fla. 2005) (quoting State v. Delva, 575 So. 2d

643, 644 (Fla. 1991)). This Court has also “explained that for jury instructions to

constitute fundamental error, the error must ‘reach down into the validity of the

trial itself to the extent that a verdict of guilty could not have been obtained

without the assistance of the alleged error.’ ” Garzon v. State, 980 So. 2d 1038,

1042 (Fla. 2008) (quoting Delva, 575 So. 2d at 644-45). “Fundamental error only

occurs when ‘the omission is pertinent or material to what the jury must consider

in order to convict.’ ” Battle, 911 So. 2d at 89 (quoting Delva, 575 So. 2d at 645).


                                         - 13 -
      As to attempted felony murder, the trial court erroneously added a fourth

element to that instruction, which should have been the first element of the

instruction on the underlying felony of attempted second-degree murder. Thus,

each of the attempted felony murder instructions for counts two, three, and four

were identical and read in pertinent part as follows:

      ATTEMPTED FELONY MURDER

            To prove the crime of attempted felony murder by Ahmad
      Milton, as charged in Count [2, 3, and 4] of the Information, the State
      must prove the following four elements beyond a reasonable doubt:
            1.    Ahmad Milton committed or attempted to commit a
      second degree murder of [the victim].
             2.    While engaged in the commission or attempted
      commission of a second degree murder, the defendant committed,
      aided or abetted an intentional act that is not an essential element of
      the second degree murder.

            3.     This intentional act of shooting a firearm could have but
      did not cause the death of [the victim].

            4.     The act would have resulted in the death of [the victim]
      except that someone prevented Ahmad Milton from killing [the
      victim] or he failed to do so.
(Emphasis added.)

      Then, instead of instructing on attempted second-degree murder as the

underlying felony, the trial court instructed the jury on the elements of

second-degree murder. With only the definition of second-degree murder

and without any instruction informing the jury as to the distinguishing

features between an attempted second-degree murder and second-degree

                                        - 14 -
murder, the jury was left to its own devices as to what constitutes attempted

second-degree murder. See Robles v. State, 188 So. 2d 789, 793 (Fla.

1966).

      As a result of these instructions, although each of Milton’s attempted felony

murder charges was predicated on the underlying felony of attempted second-

degree murder, each instruction included the definition of second-degree murder,

rather than attempted second-degree murder, as the underlying felony. Further, by

adding one of the elements of attempted second-degree murder to the attempted

felony murder instruction, the jury was never clearly instructed on either attempted

felony murder or attempted second-degree murder, and the instructions were

unclear as to the requisite “intentional act” element of attempted felony murder.

      Since attempted second-degree murder constituted the underlying felony

upon which each of Milton’s attempted felony murder charges were predicated,

clearly these erroneous instructions were “pertinent or material to what the jury

must consider in order to convict.” Battle, 911 So. 2d at 89 (quoting Delva, 575

So. 2d at 645). Therefore, we conclude that the jury instructions were

fundamentally erroneous. Milton is entitled to a new trial where the jury can be

correctly instructed on attempted second-degree murder.2


       2. Because we conclude that Milton is entitled to relief on his claim
regarding the “intentional act” element of the attempted felony murder statute and
his claim challenging the trial court’s jury instructions, and we vacate Milton’s

                                       - 15 -
                                  CONCLUSION

      For all these reasons, we quash the Third District’s decision in Milton;

approve the Fourth District’s decision in Tucker to the extent it is consistent with

our analysis; vacate Milton’s convictions for attempted felony murder in counts

two, three, and four; and remand this case for a new trial on attempted second-

degree murder.

      It is so ordered.

LABARGA, C.J., and LEWIS, QUINCE, and PERRY, JJ., concur.
CANADY, J., dissents with an opinion, in which POLSTON, J., concurs.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

CANADY, J., dissenting.

      Because I conclude that there is no basis for this Court to exercise

jurisdiction, I would discharge this case. I therefore dissent.

      Contrary to the view adopted by the majority, the decision of the Third

District Court in Milton v. State, 126 So. 3d 273 (Fla. 3d DCA 2011), does not

expressly and directly conflict with Tucker v. State, 857 So. 2d 978 (Fla. 4th DCA

2003). While both Milton and Tucker involve appeals by defendants who were

charged with attempted felony murder with a predicate felony of attempted

convictions for attempted felony murder accordingly, we do not address Milton’s
other two claims, which also involve his attempted felony murder convictions that
we have vacated.


                                        - 16 -
murder, Milton and Tucker are factually distinguishable. See Milton, 126 So. 3d at

274; Tucker, 857 So. 2d at 979.

      In Tucker, the defendant was convicted of two counts of attempted first-

degree murder and two counts of attempted felony murder as a result of shooting

two victims. 857 So. 2d at 979. The Fourth District “reverse[d] only appellant’s

dual convictions for attempted premeditated murder and attempted felony murder

because they constitute double jeopardy violations.” Id. The Fourth District

concluded that “the attempted premeditated first degree murder charges serve as

the sole underlying felonies for the attempted felony murder charges. 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.” 857 So. 2d at 979 (emphasis added). As a result, the Fourth District

affirmed the defendant’s convictions and sentences for attempted first-degree

murder and vacated the defendant’s convictions and sentences for attempted felony

murder. Id. at 980.

      In Milton, the Third District explicitly distinguished Tucker and explained

that “the Fourth District Court of Appeal held that double jeopardy was violated

because the charges were directed at the same victim. This is not the case here, as

the facts indicated that there were multiple victims, and Milton was not shooting

specifically at one person.” Milton, 126 So. 3d at 274 (emphasis added) (internal


                                       - 17 -
citation omitted). As a result, the Third District affirmed Milton’s convictions and

sentences. Id.

      In Tucker, the issue was whether a double jeopardy violation occurred where

the defendant was convicted of both attempted first-degree murder and attempted

felony murder with regard to each of the two victims. See 857 So. 2d at 979.

Milton involved an entirely different fact pattern in which the issue was whether

double jeopardy was violated by a single conviction for shooting into a dwelling

and three convictions of attempted felony murder. See 126 So. 3d at 274. The

factor that resulted in reversal in Tucker—convictions for both attempted

premeditated murder and attempted felony murder with respect to the same

victim—is not present in Milton.

POLSTON, J., concurs.

Application for Review of the Decision of the District Court of Appeal - Direct
Conflict of Decisions

      Third District - Case No. 3D09-122

      (Miami-Dade County)

Donna Greenspan Solomon of Solomon Appeals, Mediation & Arbitration, Fort
Lauderdale, Florida,

      for Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Richard L. Polin,
Bureau Chief and Linda S. Katz, Assistant Attorney General, Miami, Florida,

      for Respondent

                                       - 18 -
