McMillian v. State

COWART, Judge.

This case involves the sufficiency of evidence to support a conviction of attempted first degree murder.

After threatening to kill his estranged wife, the defendant was apprehended by police as he was lying in wait with a loaded rifle, with the safety off, in bushes about 100 feet from the wife’s parked vehicle at her place of work.

The issue is whether the evidence is sufficient to show that the defendant’s acts toward the commission of a first degree murder went beyond mere preparation and whether the circumstantial evidence is sufficient to show, beyond a reasonable doubt, his intent to commit the offense. Legally this is a close case but we affirm the conviction and cite the following cases without long relevant quotes from them: Morehead v. State, 556 So.2d 523 (Fla. 5th DCA1990); Thomas v. State, 531 So.2d 708 (Fla.1988); and Stokes v. State, 92 Miss. 415, 46 So. 627 (1908), which is especially applicable. See also 4 Wharton’s Criminal Law, § 744 (14th Ed.1981); Annot., What Constitutes Attempted Murder, 54 A.L.R.3d 612.

We also hold the trial court properly used a category one guidelines scoresheet. Hayles v. State, 596 So.2d 1236 (Fla. 1st DCA1992), approved, 608 So.2d 13 (Fla. 1992); see also Orr v. State, 597 So.2d 833, 834 (Fla. 5th DCA 1992), rev. granted, 602 So.2d 942 (Fla.1992).

AFFIRMED.

COBB and DIAMANTIS, JJ., concur.