Selway v. State

660 So.2d 1176 (1995)

Gary SELWAY, Appellant,
v.
STATE of Florida, Appellee.

No. 94-2080.

District Court of Appeal of Florida, Fifth District.

September 29, 1995.

James B. Gibson, Public Defender, and Daisy G. Clements, Assistant Public Defender, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Steven J. Guardiano, Sr. Assistant Attorney General, Daytona Beach, for Appellee.

HARRIS, Judge.

Gary Scott Selway was convicted of armed trespass to a structure and attempted third degree felony murder with a weapon. He appealed originally on an alleged instruction error and various sentencing errors. However, while the appeal was pending, the supreme court released State v. Gray, 654 So.2d 552 (Fla. 1995), which was made applicable to all cases pending on appeal. Selway amended his appeal and argued that, under Gray, there is no such crime as attempted third degree felony murder.

On this issue, we agree. We therefore reverse Selway's conviction for attempted third degree felony murder, affirm his conviction of armed trespass and remand to the trial court for resentencing. We decline to rule on the present sentencing issues because the errors, if any, may well be cured at resentencing.

AFFIRMED in part; REVERSED in part and REMANDED for resentencing.

DAUKSCH and ANTOON, JJ., concur.