text:
    Rodney Renard NEWBERRY, Appellant, v. STATE of Florida, Appellee.
    No. SC14-703
    Supreme Court of Florida.
    [April 6, 2017]

      Clinton Andrew Thomas, Public Defender, and Nada M. Carey, Assistant Public Defender, Second Judicial Circuit, Tallahassee, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, and Jennifer L. Keegan, Assistant Attorney General, Tallahassee, Florida, for Appellee
   PER CURIAM.

Rodney Renard Newberry appeals his conviction for first-degree premeditated and felony murder and his sentence of death. For the reasons below, we affirm the conviction but vacate the death sentence and remand for a new penalty phase.

BACKGROUND

The trial court well explained the facts in its sentencing order:

On December 28, 2009, Defendant [Newberry] set out to commit an armed robbery of a to-be-determined member of the Jacksonville community who happened to be located in whatever vulnerable circumstance provided Defendant the most advantageous opportunity for gain. Defendant was joined by James Phillips, who is approximately eighteen (18) years Defendant’s junior, and Robert Anderson, who is approximately seventeen (17) years Defendant’s junior. Both Phillips and Anderson claim to have participated in the scheme because each feared Defendant. Further, each testified that neither had any intention of joining Defendant in the shooting and killing of any human being.
When the Defendant and his accomplices assembled, Phillips had two firearms, an AK-47 and a MAC-11. Defendant had his own gun, a .357 magnum. Once in the car together, Defendant took possession of the AK-47, along with his .357 magnum. Anderson had the MAC-11. The three men proceeded to drive to the desired location to begin their search. Phillips apparently drove because he had a valid driver’s license.
Defendant, Phillips[,] and Anderson began prowling Duval County in the area surrounding Myrtle Avenue. After some time, and unable to find a suitable victim to rob, Defendant suggested, and the others agreed, to move their hunt to the region around Pearl Street.
Tragically, at approximately 7:20 p.m. on that fateful day, Terrese Pernell Stevens was spotted at Club Steppiri Out. When Defendant spotted Mr. Stevens’s car in the parking lot, he told Phillips to stop the car. Defendant directed Phillips to go inside the club, locate Mr. Stevens, and “chirp” Defendant to let him know when Mr. Stevens was leaving the club.FN
FN. “Chirping” is a method whereby one can use a certain type of cell phone to direct connect to another cell phone merely by pressing a button. When this is done, the recipient’s phone chirps.
While Phillips was in the club, and before he alerted Defendant, Defendant had Anderson move the car. Anderson was in the driver’s seat when Defendant’s phone chirped. He started the car and Defendant, sitting in the front passenger seat and stretching his foot across the car, pressed Anderson’s foot down on the gas pedal to make the car go faster. Anderson stopped the car a few feet from Mr. Stevens’s car. After [Anderson] parked the car, Defendant got out of the car with the AK-47 and ran to the driver’s side of Mr. Stevens’s car. Defendant yelled at Mr. Stevens to “give it up, and if you make one {explicative} move I’ll put it on my daddy that I’m going to kill you.” At that time, Anderson got out of the car with the MAC-11 and stayed by the driver’s side, never firing the gun. Without warning, and leaving Mr. Stevens little or no time to comply with Defendant’s demands, Defendant fired twelve shots from the AK-47 [after, as Anderson testified at trial, Mr. Stevens said “please don’t, don’t, don’t, don’t kill me”]. Mr. Stevens was killed.
Defendant got back in the car, and before Phillips returned to the car, Anderson and Defendant drove [away]. As they drove, Defendant offered Anderson money that he took from Mr. Stevens. At first, Anderson refused the money because it had blood on it, but eventually he took $75.00 from Defendant. Phillips, who stayed in the club when he heard the gunshots, left the club after the police arrived. [After the shooting, Phillips] called a friend for a ride, and [later met up with Newberry and Anderson]. Both men gave Phillips $20.00 of the money Defendant took from Mr. Stevens.

The owner of Club Steppin’ Out testified that she was inside the club at the time of the shooting and, although she did not see the shooting, she heard the gunshots and called the police. Law enforcement officers who responded to the scene testified that the victim was lying across the front seat of his vehicle and that they recovered twelve 7.62 x 39 mm rifle casings from the scene. No weapons were recovered by law enforcement.

In the months following the crime, Michelle Massey, who saw Newberry, Phillips, and Anderson with guns earlier in the day on the day of the murder and whose phone Newberry was using on the day of the murder, assisted police with obtaining information that led to Newberry being charged with the victim’s murder. Prior to Newberry’s trial, Anderson and Phillips both pled guilty to second-degree murder and armed robbery for their roles in the crime. Anderson also pled guilty to possession of a firearm by a convicted felon. Neither had been sentenced at the time of Newberry’s trial, at which they both testified that Newberry shot the victim.

At trial, the medical examiner testified that the cause of death was multiple gunshot wounds. She identified numerous wounds, including to the victim’s neck, arm, chest, abdomen, testicle, legs, hip, and buttocks, primarily on his left side, some of which were from the entire bullet going through and others of which were from glass or pieces of lead from the bullets or metal that injured the victim when he was shot through the driver’s side of his car.

An FDLE crime lab analyst and firearms and tool mark expert testified that the AK-47 fires 7.62 x 39 mm ammunition and that the twelve 7.62 x 39 mm casings she examined were fired from a single firearm. She further testified that the MAC-11 fires .380 ammunition, and there is no way the MAC-11 could have fired 7.62 x 39 mm ammunition.

On January 31, 2014, Newberry’s jury found him guilty of first-degree premeditated and felony murder and armed robbery and further found that Newberry “discharged a firearm causing death or great bodily harm during the commission of the offense.”

During the penalty phase, the State presented the testimony of the victims of Newberry’s four prior violent felonies as well as certified copies of Newberry’s prior convictions. The State also presented victim impact testimony from Mr. Stevens’s wife and mother, both of whom read statements.

The defense presented the testimony of Newberry’s former girlfriend and mother of his four children (and also the victim of one of Newberry’s prior violent felonies), and she testified that she still holds New-berry very dear and that he has rekindled his relationship with their children. In addition, the defense presented testimony from Newberry’s brother, who testified that they have a good, loving family, and that Newberry is a good, loving person who got caught up in the wrong crowd. The defense also presented testimony from Newberry’s cousin, Reginald Lester, who testified to the role Newberry’s faith plays in his life and that, in Lester’s opinion, Newberry could make a positive difference in the lives of other inmates in prison.

Additionally, the defense presented testimony from Dr. Stephen Bloomfield, an expert in forensic and clinical psychology. Dr. Bloomfield testified that Newberry achieved a full scale IQ score of 66. Dr. Bloomfield further testified that he reviewed Newberry’s school records, which revealed that Newberry had achieved a full-scale IQ score of 81, in 1977, when he was eight years old. Dr. Bloomfield explained that he “didn’t diagnose [Newber-ry] with [intellectual disability] because in order to be diagnosed with [intellectual disability] ... you have to be diagnosed with an IQ of less than approximately 70 prior to age 18, and you have to have low adaptive skills. All of this has to happen prior to 18. So[,] there wasn’t that evidence [to] meet the criteria for [intellectual disability] or to be considered for an Atkins [v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002),] hearing.”

Dr. Bloomfield acknowledged that New-berry “[d]id a lot of things in society,” including maintain a job and testified that he could not say that Newberry is not a leader or that he could not get other people to do things for him. He also testified that Newberry is competent and was not insane at the time of the crime and that, although Newberry “appeared depressed [and] anxious” at times, he did not diagnose Newberry with depression or anxiety and did not “diagnos[e] him with any kind of mental deficit at all,” but “if there were any type of diagnosis, it would be ... borderline intellectual functioning.”

Following the penalty phase presentation, the jury recommended the death penalty by a vote of eight to four. At the subsequent Spencer hearing, no additional witnesses testified, but the defense presented Newberry’s school records as well as his medical records from two occasions (unrelated to the victim’s murder or any of Newberry’s prior violent felonies) when Newberry was himself a gunshot victim.

Thereafter, the trial court sentenced Newberry to death in accordance with the jury’s recommendation, finding that the aggravating circumstances outweighed the mitigating circumstances.

ANALYSIS

Newberry raises the following issues on appeal: (1) whether the trial court erred by allowing the State to cross-examine defense penalty phase witness Reginald Lester about his knowledge of Newberry’s threat against a corrections officer; (2) whether the trial court erred in failing to find Newberry’s most recent IQ score of 66 mitigating; and (3) whether Newberry’s death sentence is proportionate. Because we are remanding for a new penalty phase, we do not address these penalty phase claims. However, we review whether the evidence is sufficient to support Newber-ry’s conviction' and whether Newberry’s death sentence violates Hurst v. State, 202 So.3d 40 (Fla. 2016), petition for cert. filed, No. 16-998 (U.S. Feb. 13, 2017).

A. Sufficiency

“[T]his Court has a mandatory obligation to independently review the sufficiency of the evidence in every case in which a sentence of death has been imposed.” Miller v. State, 42 So.3d 204, 227 (Fla. 2010). To conduct this review, this Court “view[s] the evidence in the light most favorable to the State to determine whether a rational trier of fact could have found the existence of the elements of the crime beyond a reasonable doubt.” Rodgers v. State, 948 So.2d 655, 674 (Fla. 2006). Applying this standard to Newberry’s case, we conclude that competent, substantial evidence supports his conviction for first-degree premeditated and felony murder. See Davis v. State, 2 So.3d 952, 966-67 (Fla. 2008) (“In appeals where the death penalty has been imposed, this Court independently reviews the record to confirm that the jury’s verdict is supported by competent, substantial evidence.”).

Specifically, the evidence in Newberry’s case includes eyewitness testimony that Newberry shot the victim multiple times with an AK-47 after demanding that the victim “give it up” and ignoring the victim’s pleas for his life. Telephone records corroborate eyewitness testimony that Newberry was the shooter. Further, shell casings recovered from the crime scene, which were -fired by a single weapon, match the type of ammunition fired by an AK-47. This evidence is sufficient to- support Newberry’s conviction for first-degree premeditated and felony murder.

B. Hurst

Next, we consider whether New-berry is entitled to relief after the United States Supreme Court issued its decision in Hurst v. Florida, — U.S. —, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). Because the jury recommended the death penalty by a vote of eight to four, we conclude that Newberry’s death sentence violates Hurst. See Kopsho v. State, 209 So.3d 568, 570 (Fla. 2017); cf. Davis v. State, 207 So.3d 142, 173-75 (Fla. 2016). We must then consider whether the Hurst error was harmless beyond a reasonable doubt:

The harmless error test, as set forth in Chapman [v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967),] and progeny, places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the vei’dict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.

Hurst, 202 So.3d at 68 (quoting State v. DiGuilio, 491 So.2d 1129, 1138 (Fla. 1986)).

Because the jury in this case recommended death by a vote of eight to four, “we cannot determine that the jury unanimously found that the aggravators outweighed the mitigation.” Kopsho, 209 So.3d at 570. “We can only determine that the jury did not unanimously recommend a sentence of death.” Id. Therefore, because we cannot say that there is no possibility that the error did not contribute to the sentence, the error in Newberry’s sentencing was not harmless beyond a reasonable doubt.

Accordingly, we vacate the death sentence and remand for a new penalty phase. See Hurst, 202 So.3d at 69.

CONCLUSION

For the foregoing reasons, we affirm Newberry’s conviction but remand for a new penalty phase.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.

CANADY, POLSTON, and LAWSON, JJ., concur as to the conviction and dissent as to the sentence.

      . We have jurisdiction. See art. V, §-3(b)(1), Fla. Const.

      . Massey testified that she and Newberry had switched phones so they could tell who the other person had been talking to because they were romantically involved at the time of the victim's murder. Newberry’s codefendant Phillips had the number of Massey’s phone that Newberry was using stored in his phone under Newberry’s nickname, Bones, and phone records introduced at trial established that Phillips used his phone to chirp the phone number he had stored as Newberry’s at 7:21 p.m., five minutes before the 911 call reporting the shooting.

      . Newberry’s four prior violent felony convictions stem from three different incidents. First, Newberry pled nolo contendere to the aggravated battery of a victim he shot 6 times. Second, Newberry pled nolo contendere to the aggravated assault of his former girlfriend and mother of his four children. Third, New-berry was convicted of the attempted first-degree murder of two police officers, both of whom Newberry shot. Newberry’s crimes against the police officers occurred after Newberry murdered the victim in this case when the officers attempted to approach Newberry on the street for a purpose unrelated to the victim's murder. Newberry was tried and convicted for the crimes against the police officers before he was tried for the victim's murder.

      . Newberry’s trial counsel similarly represented to the trial court that Newberry is not intellectually disabled and did not meet the requirements for an Atldns hearing.

      . Spencer v. State, 615 So.2d 688 (Fla. 1993).

      . The trial court found the following statutory aggravating circumstances beyond a reasonable doubt and assigned them both great weight: (1) prior violent felony based on Newberry's four prior violent felony convictions; and (2) in the course of a robbery merged with committed for pecuniary gain.

      . The trial court found no statutory mitigating circumstances and the following nonstatutory mitigating circumstances: (1) Newberry was raised in a loving home and has a family that loves and supports him (slight weight); (2) the following “mental mitigators” (a label Newberry proposed): (a) Newberry is immature and naive for his age (slight weight); (b) Newberry suffers from depression, mood shifts, and anxiety (slight weight); (c) New-berry is very vulnerable to outside influences (slight weight); (d) Newberry has a need for approval (slight weight); (e) Newberry has poor decision-making skills (slight weight); (f) Newberry has less than adequate adaptive skills, functions, and coping skills (slight weight); (g) Newberry seems to act impulsively and this is exacerbated by drug use and his mood and affect are labile and quickly change (some weight); and (h) Newberry's test scores were low (established but not mitigating and therefore given no weight); (3) Newberry was the victim of violence (little weight); (4) Newberry exhibited good and mannerly behavior throughout the Court proceedings with the jury (established but not mitigating and therefore given no weight); and (5) Newberry was impacted by his father’s death (slight weight).


source: Caselaw Access Project

author: PER CURIAM. PARIENTE, J., POLSTON, J.,

license: Public Domain

text:
    Richard Todd ROBARDS, Appellant, v. STATE of Florida, Appellee.
    No. SC15-1364
    Supreme Court of Florida.
    [April 6, 2017]

      James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, and Raheela Ahmed, Maria Christine Perinetti, and Donna Ellen' Venable, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Stephen D. Ake, Assistant Attorney General, Tampa, Florida, for Appellee.
   PER CURIAM.

Richard Todd Robards, also known as Damien Robards, appeals an order of the circuit court denying his motion to vacate judgment of two first-degree murder convictions and sentences of death filed under Florida Rule of Criminal Procedure 3.851. Because the order concerns postconviction relief, from sentences of death, we have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons explained below, we affirm the postconviction court’s order to the extent that it denies Robards relief based upon his claim of ineffective assistance of guilt phase counsel, but grant Robards a new penalty phase proceeding pursuant to Hurst v. State (Hurst), 202 So.3d 40 (Fla. 2016), petition for cert. filed, No. 16-998 (U.S. Feb. 13, 2017).

FACTS AND PROCEDURAL BACKGROUND

Trial and Direct Appeal Proceedings

Robards was found guilty of two counts of first-degree murder for the 2006 deaths of Frank and Linda Deluca. Robards, the couple’s personal trainer, murdered them during the course of a robbery in which he stole personal belongings of the Delucas, including a safe containing more than $88,000. The Delucas died of multiple sharp force wounds, and their home was set on fire after they were murdered. The facts of the offenses are set forth in detail in this Court’s opinion affirming Robards’. convictions and sentences on direct appeal. See Robards v. State, 112 So.3d 1256 (Fla. 2013).

The guilt phase of the trial took place from May 18 to May 21, 2010. The guilt phase was followed by a brief penalty phase on May 25, 2010, during which the State presented testimony from Linda De-luca’s sister, and the defense presented character evidence about Robards’ personal and professional life using testimony from family members, friends, fellow inmates, and former clients. Jd. at 1263. The jury recommended the death penalty for each murder by a vote of seven to five. After three Spencer hearings, during which mental health mitigation was offered, the trial court sentenced Robards to death. The facts revealed during the Spencer hearings were explained at length on direct appeal, and the sentencing proceeded as follows:

In its sentencing order, the court found that four aggravating circumstances were proven by the State beyond a reasonable doubt and assigned each one of them great weight: (1) Robards was convicted of a prior capital felony (based on the contemporaneous murder of the second victim); (2) Robards committed each murder for pecuniary gain; (3) Ro-bards committed each murder while engaged in a commission of a robbery (merged with pecuniary gain); and (4) each murder was especially heinous, atrocious, or cruel (HAC).
Although the jury did not receive evidence of mental health mitigation, the trial court weighed the evidence that was presented at the Spencer hearing and considered as statutory mitigation the following: (1) whether Robards suffered from an extreme mental or emotional disturbance; and (2) whether Robards suffered from an impaired capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. The court rejected both of these statutory mitigating circumstances and explained its rationale in its sentencing order. The trial court did weigh Robards’ mental health as a nonstatutory mitigating circumstance.
The trial court considered a total of twelve nonstatutory mitigating circumstances. The ■ trial court rejected Ro-bards’ argument that Florida’s budgetary crisis was a reason for not imposing the death penalty and his argument that the closeness of the jury’s vote was a reason for not imposing the death penalty. Of the remaining ten mitigating circumstances, the trial court gave each one some weight: (1) family history; (2) no plan to murder; (3) good general conduct while in custody; (4) capacity to form positive relationships; (5) remorse and potential for rehabilitation; (6) traumatic injury based on PET scan and PET scan brain image comparison;. (7) effect of steroids on brain injury and effect of steroids generally; (8) use of prescribed steroids, interactions with other prescribed drugs, and withdrawal; (9) mental health issues; and (10) history of steady employment. All of the trial court’s findings were as to each murder.

Id. at 1264-66.

On direct appeal, Robards raised four issues: (1) whether penalty phase counsel provided ineffective assistance; (2) whether a seven-to-five vote recommending death was unconstitutional; (3) whether the trial judge departed from judicial neutrality in suggesting that the State pursue the prior capital felony aggravating circumstance; and (4) whether improper comments by the prosecutor during closing argument warranted a new trial. Ultimately, this Court rejected all claims raised and affirmed Robards’ convictions and sentences of death. See Robards, 112 So.3d at 1273.

Postconviction Proceedings

Robards filed a timely motion for post-conviction relief raising six claims: (1) trial counsel was ineffective in failing to object to or attempt to suppress testimony, evidence, or prosecutorial argument regarding his offer to “make a deal” with Detective Anthony Monte and any statements related to that offer; (2) trial counsel failed to diligently, timely, and reasonably investigate mitigation evidence; (3) trial counsel’s failure to object to prejudicial remarks during the prosecutor’s closing argument constituted ineffective assistance of counsel; (4) the combination of the procedural and substantive errors during the guilt and penalty phases deprived Robards of a fair trial; (5) section 945.10, Florida Statutes (2006), which prohibits a defendant from knowing the identity of the execution team members, is unconstitutional; and (6) Robards may be incompetent at the time of execution. Following a Huff hearing, the circuit court granted an evi-dentiary hearing on claims one and two. During the evidentiary hearing, the court heard testimony from guilt phase counsel, Larry Hoffman; penalty phase counsel, Richard Watts; two medical experts who testified during the Spencer hearings, Dr. Joseph Wu and Dr. Robert Berland; former assistant public defender, Ronald Eide; and two of Robards’ acquaintances.

Following the evidentiary hearing, the circuit court denied Robards’ motion for postconviction relief in its entirety. Ro-bards appeals the denial of his motion raising three issues: (1) trial counsel was ineffective for failing to object to or attempt to suppress the testimony, evidence, or prosecutorial argument regarding Ro-bards’ offer to make a deal; (2) trial counsel failed to diligently, timely, and reasonably investigate the mitigation evidence and make an adequate penalty phase presentation to the jury; and (3) cumulative error deprived Robards of a fair trial. Additionally, Robards claims that he is entitled to relief based on the United States Supreme Court’s decision in Hurst v. Florida, — U.S. —, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), as well as this Court’s decisions in Hurst and related cases.

We affirm the denial of relief as to Ro-bards’ ineffective assistance of guilt phase counsel claim, but because we conclude that Robards is entitled to a new penalty phase proceeding under Hurst, we decline to address his claims regarding the ineffective assistance of penalty phase counsel and cumulative error.

ANALYSIS

Ineffective Assistance of Guilt Phase Counsel

To prevail on a claim of ineffective assistance of counsel, the defendant must demonstrate that counsel’s performance fell below an objective standard of reasonableness, and the defendant was prejudiced by counsel’s deficiency such that there is a reasonable probability the result of the proceeding would have been different absent the error. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Both prongs of the Strickland test present mixed questions of law and fact. Thus, we employ a mixed standard of review, deferring to the trial court’s factual findings that are supported by competent, substantial evidence, and reviewing the trial court’s legal conclusions de novo. See Sochor v. State, 883 So.2d 766, 771-72 (Fla. 2004).

“Judicial scrutiny of counsel’s performance must be highly deferential.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Further, “[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. The defendant carries the burden to “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). Moreover, a court “need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.” Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla. 1986).

Robards argues that guilt phase trial counsel rendered deficient performance for failing to object to or attempt to suppress testimony, evidence, and prosecu-torial argument regarding Robards’ offer to make a deal with Detective Monte. The record reflects that Robards made a phone call from the Pinellas County Jail to Detective Monte on August 15, 2006, and left him the following voicemail- message, which was introduced into evidence during the State’s case-in-chief:

Detective Monte, this is Damien Ro-bards. I’m down here at the Pinellas County Jail. It’s about two o’clock. Listen, if you can come here and talk to me, and you guys are ready to make a deal, come in and talk to me, all right? Thanks.

During trial, Detective Monte testified that he went to see Robards in response to the voicemail message and that-, Robards said he wanted to make a deal. However, when Detective Monte informed Robards that he was not in a position to offer him a deal, Robards spoke no further of it. At the time of the call, Robards was incarcerated for possession of marijuana, yet Detective Monte testified he believed that Robards’ comments related to the homicide case involving the Delucas. The State referenced this statement during opening and closing arguments.

Robards argues that the voicemail message and conversation with Detective Monte constitute inadmissible plea negotiations under section 90.410, Florida Statutes (2014), and Florida Rule of Criminal Procedure 3.172(i). Robards asserts that guilt phase counsel’s performance was deficient because he failed to object to the State’s introduction of inadmissible plea negotiations. Consequently, we examine whether the communications between Ro-barás and Detective Monte- amounted to plea negotiations and, if so, whether counsel’s failure to object was deficient.

“Where a party admission is not clearly part of an attempt to negotiate a plea bargain, this Court has adopted a two-tier analysis for determining whether a statement falls within the exclusion under rule 3.172(i).” Schoenwetter v. State, 46 So.3d 535, 546-47 (Fla. 2010) (citing Calabro v. State, 995 So.2d 307, 313-14 (Fla. 2008)). A court must first determine “whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion.” Id. (quoting Richardson v. State, 706 So.2d 1349, 1353 (Fla. 1998)). Second, the court must discern “whether the accused’s expectation was reasonable given the totality of the circumstances.” Id. (quoting Richardson, 706 So.2d at 1353) (internal quotation marks omitted). Unsolicited, unilateral statements do not create a reasonable expectation of involvement in plea negotiations. See Bottoson v. State, 443 So.2d 962, 965 (Fla. 1983).

Robarás contends that his statement exhibited a subjective expectation to negotiate a plea deal because the conversation ended after Detective Monte informed Ro-barás that he did not have the power to make a deal. Robarás further asserts that his expectation was reasonable because he had previously spoken with Detective Monte about the murder of the Delucas. Furthermore, Robarás argues he was prejudiced because it is a fundamental duty of counsel to preserve conceivable errors for appeal.

During the postconviction evidentiary hearing, guilt phase counsel Hoffman testified regarding the voicemail recording, saying he thought it was related to the drug case for which Robarás was incarcerated at the time. Hoffman attested that he did not object to the evidence or argument about the voicemail because he did not believe the statement was objectionable. In lieu of objecting, he decided to attack the evidence on cross-examination of Detective Monte by attempting to show that the detective had no idea which case Robarás was referring to during the call.

The postconviction court found that any subjective expectation by Robarás about entering into a plea negotiation was not reasonable considering the totality of the circumstances. First, the call was made while Robarás was under arrest for a drug incident; and second, the message was an unsolicited voicemail from a monitored jail line offering to make a deal to an unspecified crime. The court thus determined that the communication was simply an unsolicited, unilateral offer from which Robarás could have had no reasonable expectation of negotiating a plea.

Because the voicemail and resulting conversation did not amount to a plea negotiation, the postconviction court observed that the statement could be offered against Robarás as a party admission. See § 90.803(18)(a), Fla. Stat. (2014). Therefore, the court found counsel’s conclusion that the statement was not objectionable to be legally correct. Given the totality of the circumstances, and especially the fact that Robarás had not even been arrested in connection with the murders, we conclude that Robarás’ expectation about entering into a plea negotiation was not reasonable. Furthermore, we agree that Hoffman’s decision not to object did not constitute deficient performance because the statement was admissible. See Hitchcock v. State, 991 So.2d 337, 361 (Fla. 2008) (“Counsel cannot be deemed ineffective for failing to make a meritless objection.”).

Further, even if counsel should have objected to the introduction of the voicemail or attempted to suppress the evidence, we conclude that Robards cannot demonstrate prejudice under Strickland. The presence or absence of the voicemail is minimal considering the overwhelming evidence linking Robards to the Delucas’ murders. Therefore, there is no reasonable probability that the outcome of the guilt phase would have been different had counsel’s objection been sustained or had counsel obtained a trial court ruling suppressing the voicemail. We set forth the compelling evidence of Robards’ guilt on direct appeal, stating:

Among the more substantial evidence is that Robards’ fingerprints were found at the crime scene on a piece of newspaper dated within one day of the murders. What is more, Frank Deluca tried to fight his attacker, and Robards’ DNA was found underneath his fingernails. The only other DNA that was identified during the fingernail analysis of Frank Deluca was that of the other murder victim, Frank Deluca’s wife. Additionally, Robards talked about the Delucas’ safe for weeks before the murders, told many people that he had access to it, and tried to recruit help from Shane Harper to steal it. Then, after Robards murdered the Delucas, he made Robert Kenney an unwitting partner in removing the safe from the Delucas’ home. In light of such compelling evidence of guilt, Robards is not entitled to relief.

Robards, 112 So.3d at 1271. Thus, even if counsel’s performance had been deficient, Robards was not prejudiced. Accordingly, we affirm the postconviction court’s denial of relief as to this claim.

Hurst Relief

In Hurst v. Florida, the United States Supreme Court held that Florida’s capital sentencing scheme is unconstitutional because “[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough.” 136 S.Ct. at 619. On remand, we held that “in addition to unanimously finding the existence of any aggravating factor, the jury must also unanimously find that the aggravating factors are sufficient for the imposition of death and unanimously find that the aggravating factors outweigh the mitigation before a sentence of death may be considered by the judge.” Hurst, 202 So.3d at 54. Moreover, we concluded that “in order for a death sentence to be imposed, the jury’s recommendation for death must be unanimous.” Id. Further, we determined that Hurst error is capable of harmless error review. Id. at 68. In Mosley v. State, 209 So.3d 1248 (Fla. 2016), we held that Hurst applies retroactively to defendants whose sentences became final after the United States Supreme Court issued its opinion in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Robards’ convictions and sentences became final after Ring, thus Hurst is applicable to him.

On direct appeal, Robards challenged the constitutionality of the jury’s bare majority recommendation of death, but based on existing precedent at the time, we concluded that the claim was without merit. See Robards, 112 So.3d at 1267. In his postconviction appeal, Robards again claims he is entitled to relief from his death sentences based upon the seven-to-five jury recommendation of death. Therefore, as Hurst requires, we consider whether the error during Robards’ penalty phase proceeding was harmless.

“[I]n the context of a Hurst error, the burden is on the State, as the beneficiary of the error, to prove beyond a reasonable doubt that the jury’s failure to unanimously find all the facts necessary for imposition of the death penalty did not contribute to [the] death sentence.” Hurst, 202 So.3d at 68. As applied to the right to a jury trial with regard to the facts necessary to impose the death penalty, it must be clear beyond a reasonable doubt that a rational jury would have unanimously found that there were sufficient aggravating factors and that the aggravating factors outweighed the mitigating circumstances.

We conclude that the State cannot establish that the error in Robards’ case was harmless beyond a reasonable doubt. The jury in this case did not make any of the requisite factual findings, and the vote to impose a sentence of death was seven to five, the bare minimum to recommend death prior to Hurst. The jury was instructed to consider four aggravating circumstances and two nonstatutory mitigating circumstances. Although the prior violent felony aggravating circumstance was found unanimously by virtue of Robards’ conviction for the first-degree murder of the second victim, and while the jury may have found this aggravator to be sufficient to qualify Robards for the death penalty, it is impossible to determine whether the jury unanimously found it to be sufficient. Similarly, there is no way of knowing if the jury found any of the other aggravating circumstances unanimously, or if the jury unanimously found such aggravators to be sufficient to qualify for the death penalty. Further, we cannot determine whether the jury unanimously concluded that there were sufficient aggravating factors to outweigh the mitigating circumstances. Given the seven-to-five recommendation for death, it is impossible for us to conclude that the Hurst error in this case was harmless beyond a reasonable doubt.

CONCLUSION

For the foregoing reasons, we affirm the denial of postconviction relief as to Ro-bards’ claim alleging that counsel was ineffective during the guilt phase of the trial. However, we must vacate Robards’ sentences of death and remand for a new penalty phase proceeding under Hurst.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.

PARIENTE, J., concurs with an opinion.

POLSTON, J., concurs in part and dissents in part -with an opinion, in which CANADY and LAWSON, JJ., concur.

PARIENTE, J.,

concurring.

I agree that Robards is entitled to Hurst relief and should, therefore, receive a new penalty phase. I write to emphasize the woeful inadequacy of Robards’ penalty phase counsel who failed to present the jury with evidence of substantial mental health mitigation, which reinforces the necessity for a new penalty phase in this case. As I explained in my concurring opinion in Robards’ direct appeal, “the record before this Court raise[d] questions about” whether Robards’ penalty phase counsel was ineffective in presenting mental health mitigation, but “further factual development [was] necessary in order for this claim to be fairly and properly adjudicated.” Robards, 112 So.3d at 1274 (Pariente, J., concurring). The postconviction proceedings below have now revealed the breadth of mitigation evidence that penalty phase counsel failed to reasonably investigate. Consequently, the jury in Robards’ case—-which recommended his two death sentences by narrow votes of seven to five—was not presented with the full picture of Robards’ life when it made its recommendations. See id. at 1263.

What we now know as a result of the postconviction proceedings is that at the time Robards’ penalty phase began, penalty phase counsel had access to Robards’ medical and psychiatric records, competency records, and the results of an initial Positron Emission Tomography (PET) scan showing brain abnormalities. Additionally, penalty phase counsel was aware of records regarding motorcycle accidents in which Robards had sustained injuries. Penalty phase counsel also knew from the appointed mitigation specialist that there was evidence Robards suffered sexual and physical abuse during his childhood. Despite this knowledge of substantial mitigation, penalty phase counsel did not further investigate Robards’ background and proceeded to the penalty phase.

Penalty phase counsel acknowledged in his testimony during the evidentiary hearing that the full extent of mental health mitigation was not known until “months after” the penalty phase jury recommended that Robards be sentenced to death. In this regard, penalty phase counsel did not have a full picture of Robards’ background before he decided against presenting mental health mitigation to the penalty phase jury. Consequently, the penalty phase jury was similarly denied the full picture of the mitigating circumstances in Robards’ life that may have affected its weighing of the aggravation and mitigation when deciding whether Robards was deserving of the ultimate punishment.

Instead, the mental health mitigation was developed during three hearings held before the trial judge over a period of months after the penalty phase jury made its recommendations. The investigation of Robards’ mental health mitigation during these months revealed that Robards suffered from traumatic brain injury and toxic brain exposure. Moreover, testimony by a PET specialist revealed that Robards began using steroids at age fifteen and used them continuously for decades. A psychopharmacologist testified that Ro-bards may have been suffering from steroid withdrawal during the time of the murders, and evidence was presented demonstrating Robards’ paranoia, violent behavior, delusions, and psychotic disturbances. Robards’ sister’s testimony during one of the hearings also revealed that Ro-bards’ brothers physically and emotionally tormented him growing up, and that Ro-bards was sexually abused in a neighbor’s home as a child.

Thus, as penalty phase counsel acknowledged during the postconviction proceedings, the picture of Robards’ childhood that the penalty phase jury was presented with was incomplete. The penalty phase jury was not afforded the opportunity to evaluate this testimony against other testimony that depicted Robards as a happy child. “The jury vote in this case was seven to five in favor of a death recommendation. The swaying of the vote of only one juror would have made a critical difference here.” Phillips v. State, 608 So.2d 778, 783 (Fla. 1992). For all these reasons, it is clear that a new penalty phase is mandated not only on the basis of the harmful Hurst error in this case, but also as a result of the ineffective assistance of Ro-bards’ penalty phase counsel.

POLSTON, J.,

concurring in part and dissenting in part.

I concur with the majority’s decision except its vacating of the death sentence pursuant to Hurst.

CANADY and LAWSON, JJ., concur.

      . Spencer v. State, 615 So.2d 688 (Fla. 1993).

      . Huff v. State, 622 So.2d 982 (Fla. 1993).

      . Section 90.410, Florida Statutes, declares: Evidence of a plea of guilty, later withdrawn; a plea of nolo contendere; or an offer to plead guilty or nolo contendere to the crime charged or any other crime is , inadmissible in any civil or criminal proceeding. Evidence of statements made in connection with any of the pleas or offers is inadmissible, except when such statements are offered in a prosecution under chapter 837.

      . Florida Rule of Criminal Procedure 3.172(i) provides, “Except as otherwise provided in this rule, evidence of an offer or a plea of guilty or nolo contendere, later withdrawn, or of statements made in connection therewith, is not admissible in any civil or criminal proceeding against the person who made the plea or offer.”


author: PARIENTE, J.

text:
    Calvin WEATHERSPOON, Petitioner, v. STATE of Florida, Respondent.
    No. SC15-1542
    Supreme Court of Florida.
    [April 6, 2017]

      Ira D. Karmelin, West Palm Beach, Florida, for Petitioner
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Celia A. Terenzio, Bureau Chief, and Don M. Rogers, Assistant Attorney General, West Palm Beach, Florida, for Respondent
   PARIENTE, J.

The issue before this Court is whether the State is entitled to a jury instruction and to argue to the jury the statutory crime of attempted felonymurder under section 782.051, Florida Statutes (2016), when the State charges only attempted murder and does not charge or allege the elements of attempted felony murder in the charging document. Although the Fourth District Court of Appeal determined that no due process violation occurred by the failure to charge attempted felony murder, it recognized that the issue was one that should be resolved by this Court and certified the following question of great public importance:

IN LIGHT OF THE LEGISLATURE’S CREATION OF SECTION 782.051, WHICH CREATED A CRIME CALLED “ATTEMPTED FELONY MURDER,” THAT WAS PREVIOUSLY DECLARED BY STATE V. GRAY, 654 So.2d 552 (Fla. 1995), TO BE A NONEXISTENT CRIME UNDER SECTION 782.04(1)(A), DOES THE STATE NEED TO SPECIFICALLY ALLEGE THE ELEMENTS OF AND CITE TO SECTION 782.051 OR DOES AN ALLEGATION OF ATTEMPTED PREMEDITATED MURDER AUTOMATICALLY INCLUDE ATTEMPTED FELONY MURDER, JUST AS AN INDICTMENT FOR PREMEDITATED MURDER AUTOMATICALLY INCLUDES FELONY MURDER?

Weatherspoon v. State, 191 So.3d 481, 481 (Fla. 4th DCA 2015). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

We conclude that the Fourth District’s reliance on this Court’s precedent in the felony murder and first-degree premeditated murder context was misplaced because attempted felony murder and attempted premeditated murder are now distinct crimes with different elements and punishments. Because the statutory crime of attempted felony murder is a crime separate from attempted premeditated murder with different elements and different punishments, the State must charge the crime of attempted felony murder in order to be entitled to a jury instruction on that crime and proceed under that theory. 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 charges against him so as to provide the defendant with due process of law under article I, section 9, of the Florida Constitution.

We agree with Judge Warner’s analysis in her dissent in Weatherspoon v. State, 194 So.3d 341, 341-48 (Fla. 4th DCA 2015), and answer the certified question in the affirmative, quash the decision below in Weatherspoon, and disapprove of the decisions of the Fourth District Court of Appeal in Dempsey v. State, 72 So.3d 258 (Fla. 4th DCA 2011), and the Fifth District Court of Appeal in Florence v. State, 128 So.3d 198 (Fla. 5th DCA 2013), to the extent they are inconsistent with this opinion. We remand this case to the district court for further proceedings consistent with this opinion.

FACTS

Weatherspoon, along with four codefen-dants, was charged with the November 2008 robbery of a Dunkin’ Donuts in Del-ray Beach, Florida. During the course of the robbery, one of the codefendants shot two people in the store and one in the parking lot. All four codefendants were charged pursuant to a single information containing multiple counts, including 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. With respect to the three counts of attempted first-degree murder, the information 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 during the commission or attempt to commit any offense listed in Florida Statute 775.087(2)(a) 1, JAMES HER-ARD and/or CALVIN LEE WEATH-ERSPOON, 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 WEATHER-SPOON, 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(l)(a)(2) and 775.087(2)(a)(l) and 775.087(2)(a)(2) and 775.087(2)(a)(3).

Weatherspoon was tried by the same prosecutors as his codefendant, Bell, but before separate juries.

During his opening statement, Weather-spoon’s attorney argued that Weather-spoon had no idea that codefendant Her-ard intended to shoot or Mil anyone during the robbery, while the State countered, stating that Weatherspoon knew one of the reasons for the robbery was to give Her-ard a chance to Mil people as part of a “body count competition.” The issue of whether the State could pursue an attempted felony murder theory as well as the theory of attempted first-degree premeditated murder was first raised following the opening statements and addressed again when the parties began to address jury instructions for both trials. Both Weatherspoon and Bell objected to the State’s proffered jury instruction on attempted felony murder, arguing that the crime was not pled in the information.

The trial court overruled the objections and gave the following jury instruction on attempted felony murder:

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 Weather-spoon of Attempted Felony Murder, it is not necessary for the State to prove that he had a premeditated design or intent to kill.

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

During closing argument in Weather-spoon’s trial, the State argued both the attempted premeditated murder theory and attempted felony murder, “instructing the jury it could convict under either one.” Weatherspoon, 194 So.3d at 343 (Warner, J., dissenting). During deliberations, the jury asked for “[cjlarifícation on Attempted 1st deg. murder and Attempted 1st deg. felony murder. Attempted 1st deg. felony murder is not on the verdict form,” to which the prosecutor replied, “[I]t sounds like they were probably thinking we had to delineate which one[.]” Id. at 344. The judge told the jury to rely on the written instructions given to them. Id. The jury returned a verdict of guilty on all of the attempted first-degree murder counts, and Weatherspoon was sentenced to life in prison.

The Fourth District affirmed Weather-spoon’s convictions. Weatherspoon, 194 So.3d at 341. However, Judge Warner wrote a lengthy dissent, arguing that even though she was on the panel affirming the conviction of the codefendant, Bell, she now believed that the opinion was in error because attempted felony murder is a separate crime, in a separate statute, making earlier precedent inapplicable. Id. at 341-42 (Warner, J., dissenting). Judge Warner explained:

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 v. [State, 70 Fla. 163, 69 So. 871 (1915),] 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 nonexistent 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 [to] 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.

Id. at 347.

ANALYSIS

The issue before this Court is whether the State is entitled to a jury instruction and to argue to the jury the statutory crime of attempted felony murder, section 782.061, Florida Statutes (2016), when the State charges only attempted murder and does not charge or allege the elements of attempted felony murder in the charging document. Weath-erspoon objected to the charge and asserts that he was prejudiced in his trial preparation and strategy as a result of the State’s failure to specifically charge attempted felony murder in the information. The State concedes in its brief that it would have been “best” to charge Weatherspoon with the crime of attempted felony murder specifically, but contends that it was unnecessary to do so and that any error in this case was harmless because Weatherspoon was on notice that the State intended to proceed under the theory of attempted felony murder.

We begin with the constitutional and procedural basis for our analysis. We then explain the differences between the statutory crime of attempted felony murder and the statutory crime of attempted premeditated murder and why those differences render any analogy to the felony murder context inapposite. Finally, we explain why the State cannot show that Weatherspoon was not prejudiced by the error.

Article I, section 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 .... ” This Court, citing centuries-old United States Supreme Court precedent, has stated that “to apprise the accused of the specific charges against him, an information or indictment must contain all facts essential to the ‘of-fence intended to be punished.’” Insko v. State, 969 So.2d 992, 995 (Fla. 2007) (quoting United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135 (1881)). “Historically, the ‘elements of a crime’ are the facts ‘legally essential to the punishment to be inflicted.’” Id. (quoting Harris v. United States, 536 U.S. 545, 561, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002)).

In addition to the violation of a defendant’s right to be fully informed of the charges against him under article I, section 16, of the Florida Constitution, a defendant’s right to due process under article I, section 9, is denied when there is a conviction on a charge not made in the information or indictment:

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 [State v.] Gray, 435 So.2d [816,] 818 [ (Fla. 1983) ]; 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 (Fla. 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) (some parallel citations omitted). “[A]n 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).

In addition to the constitutional bases of both, article I, section 16, of the Florida Constitution pertaining specifically to the charging documents, and the general protection of due process of law under article I, section 9, of the Florida Constitution, the Florida Rules of Criminal Procedure address the issue specifically. 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 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.”

Our precedent does not make the failure to charge per se reversible. “Generally the test for granting relief based on a defect in the information is actual prejudice to the fairness of the trial.” Price, 995 So.2d at 404. Due to Florida’s liberal discovery rules, this 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 or embarrassed in the preparation of his defense nor exposed to double jeopardy.” State v. Dilworth, 397 So.2d 292, 294 (Fla. 1981).

In the 1915 case of Sloan v. State, 70 Fla. 163, 69 So. 871 (1915), this Court first articulated what was constitutionally required to be charged in an indictment in the first-degree and felony murder context. In that case a defendant charged only with first-degree premeditated murder challenged his indictment, which did not allege the underlying felony of the robbery of the victim. Id. at 871. This Court, after reviewing the law of other states, agreed with the majority of states that a charge of premeditated murder in the indictment is sufficient for the State to proceed under either the theory of first-degree premeditated murder or felony murder. Id. at 872. In so holding, this Court cited the opinion of the Supreme Court of Missouri in State v. Meyers, 99 Mo. 107, 12 S.W. 516 (1889), which reasoned:

An indictment in the usual form, charging murder to have been done deliberately and premeditatedly, is sufficient under the statute to charge murder in the first degree, regardless of whether the murder was committed in the perpetration of a felony or otherwise. The perpetration or attempt to perpetrate any of the felonies mentioned in the statute, * * * during which perpetration or attempt a homicide is committed, stands in lieu of and is the legal equivalent of that premeditation and deliberation which otherwise are the necessary attributes of murder in the first degree. In such case it is only necessary to make the charge in the ordinary way for murder in the first degree, and show the facts in evidence, and, if they establish that the homicide was committed in the perpetration or attempt to perpetrate any of the felonies mentioned in the statute, this will be sufficient.

Sloan, 69 So. at 872 (quoting Meyers, 12 S.W. at 517).

This Court has since continued to adhere to the principle of Sloan in subsequent eases. See O’Callaghan v. State, 429 So.2d 691, 695 (Fla. 1983); Killen v. State, 92 So.2d 825, 827-28 (Fla. 1957). In O’Callaghan, this Court held that an indictment charging O’Callaghan only with premeditated murder was legally sufficient to support his conviction for felony murder because O’Callaghan had full knowledge of both the charges and the evidence that the State would submit at trial. 429 So.2d at 695. In so holding, this Court stated: “We have previously expressly stated 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.’” Id. (quoting State v. Pinder, 375 So.2d 836, 839 (Fla. 1979)).

This Court explained in Killen that a charge of first-degree premeditated murder necessarily includes the theory of felony murder because “the perpetration, or attempt to perpetrate, any of said felonies, during which a homicide is committed, stands in lieu of and is the legal equivalent of premeditation, and ... in such cases it is only necessary to charge that the homicide was committed with a premeditated design and then show the facts in evidence.” 92 So.2d at 828.

The logic of Killen, O’Callaghan, and Sloan arguably applied to the crimes of attempted premeditated murder and attempted felony murder until this Court’s 1995 decision in State v. Gray, 654 So.2d 552 (Fla. 1995), which held that the crime of attempted felony murder did not exist. In that case, the Court adopted the dissent of Justice Overton in Amlotte v. State, 456 So.2d 448, 450-51 (Fla. 1984) (Overton, J., dissenting), where he concluded that:

In my view, the 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 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.

After Gray, the Legislature created a statutory crime of attempted felony murder. This Court described the Legislature’s enactment of the crime of attempted felony murder post-Gray:

“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.

Milton v. State, 161 So.3d 1245, 1248 (Fla. 2014). Currently, section 782.051(1), Florida Statutes (2016), states:

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 ....

The State argues that the Killen, O’Callaghan, and Sloan line of cases should be extended to the crimes of attempted first-degree premeditated murder and attempted felony murder, regardless of this Court’s opinion in Gray and the subsequent enactment of section 782.051. This was also the approach taken by the Fourth District, in Bell, relying on its previous holding in Dempsey. In Dempsey, the Fourth District applied this Court’s holding in O’Callaghan to the crime of attempted felony murder without any discussion or reasoning as to why that holding applied in light of the Legislature’s creation of the completely new and separate crime of attempted felony murder in section 782.051, Florida Statutes. See 72 So.3d at 260-61. Bell simply cited to Dempsey without any further comment. See 152 So.3d at 717.

The Fifth District has also taken this position in Florence v. State, 128 So.3d 198 (Fla. 5th DCA 2013). In that case the defendant argued that the trial court committed fundamental error and violated his state and federal constitutional rights to due process by instructing the jury on the uncharged offense of attempted felony murder. Florence, 128 So.3d at 198. The Fifth District affirmed the conviction citing to the Fourth District’s opinion in Dempsey with no other discussion. See id. at 199.

We conclude, as expressed in Judge Warner’s dissent in Weatherspoon, that the Fourth District’s holdings in Bell and Dempsey and the Fifth District’s holding in Florence are a misapplication of this Court’s precedent in Sloan, Killen, and O’Callaghan. While the reasoning of those cases may have applied to the crime of attempted felony murder prior to Gray, the enactment of the entirely new crime of attempted felony murder in a completely separate statute with different essential elements and a more severe punishment now makes those cases inapplicable.

The basis of this Court’s reasoning in the Sloan line of cases was that the crimes of first-degree premeditated murder and felony murder were in the same statute and simply different theories the State might assert in its attempt to prove first-degree premeditated murder. In other words, the crime of felony murder is included- in the current first-degree murder statute. See § 782.04(1)(a) 2., Fla. Stat. (2016). Because the State can prove premeditation by either showing direct premeditation .or imputed premeditation through the underlying felony, charging premeditated murder and citing that statute is enough to put a defendant on notice that the State might pursue the theory of felony murder.

The analogy to premeditated murder and felony murder no longer exists in the attempted premeditated murder and attempted felony murder context. The crime of attempted premeditated murder is codified in section 782.04 (Murder), and section 777.04 (Attempts, solicitation, and conspiracy), while the crime of attempted felony murder is now codified in section 782.051 (Attempted felony murder).

Unlike attempted premeditated murder, the crime of attempted felony murder now contains an essential element not present in the crime of attempted premeditated murder: the commission of an intentional act that is not an essential element of the felony. § 782.051(1)-(2), Fla. Stat. (2016). Accordingly, neither citing the statutes for the crime of attempted premeditated murder, nor describing the - essential elements of that crime would be sufficient to put a defendant on notice of all of the essential elements of the crime of attempted felony murder as codified in section 782.051.

Finally, the crimes of attempted felony murder and attempted premeditated murder no longer have the same punishment. Because premeditated murder is a capital offense, the attempt to commit the capital offense is a first-degree felony, which is punishable by no more than thirty years’ imprisonment. §§ 777.04(4)(b), 775.082(3)(b), 782.04(1)(a), Fla. Stat. (2016). However, attempted felony murder is a first-degree felony which carries the potential sentence of life imprisonment. § 782.051(1), Fla. Stat. (2016). As such, attempted felony murder has a greater punishment than attempted premeditated murder, causing it to be, if included in the crime of attempted premeditated murder as the State argues, not a lesser, but a greater included offense. See Sanders v. State, 944 So.2d 203, 206 (Fla. 2006) (explaining that lesser included offenses fall into two categories, necessary and permissive: necessarily included lesser offenses are those offenses in which the statutory elements of the lesser included offense are always subsumed within those of the charged offense, while a permissive lesser included offense exists when the two offenses appear to be separate but the facts alleged in the pleadings are such that the lesser offense cannot help but be perpetrated once the greater offense has been); see also State v. Baker, 456 So.2d 419, 422 (Fla. 1984) (“‘Lesser included offense’ in regard to jury alternatives ... implements the nonconstitutional right of an accused to a instruction which gives the jury an opportunity to convict of an offense with less severe punishment than the crime charged.”).

Accordingly, because the statutory crime of attempted felony murder contains different elements than the crime of attempted premeditated murder, the crimes are contained in different statutory sections, and are subject to different punishments, the reasoning of our case law regarding premeditated murder and felony murder is inapposite, as Judge Warner explained in her dissent:

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 nonexistent 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.

Weatherspoon, 194 So.3d at 347 (Warner, J., dissenting). Thus, it is error for the State to proceed under the alternative theory of attempted felony murder after charging a defendant with only attempted premeditated murder in the information, and it violates the defendant’s right to be fully informed of the charges against him.

This Case

In this case, the State charged Weatherspoon only with attempted first-degree premeditated murder. The charging document did not -include 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 information 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. Rather, the information erroneously and confusingly cited to the attempt statute (section 777.04, Florida Statutes), and the premeditated murder statute, (section 782.04), which is a charge of the nonexistent crime of attempted felony murder that was invalidated by this Court in Gray. The information in this case was therefore defective because it neither cited to the correct statute nor alleged the essential elements of the crime of attempted felony murder.

That is not the end of our inquiry. We must now determine whether Weather-spoon is entitled to relief in light of the State’s error based on whether there was prejudice to Weatherspoon. We conclude that the defendant was in fact prejudiced.

The State argues that there was no prejudice because Weatherspoon was put on notice of its intent to proceed under the attempted felony murder theory based on what was disclosed in discovery, the undisputed facts of the case, the wording of the statutory citations in the information, case law from the Fourth District at the time of the trial, the questions asked by prosecutors during voir dire, and the established case law from this Court.

To the contrary, Weatherspoon argues that there was actual prejudice to his trial preparation and strategy. Weatherspoon contends that his attorneys made a tactical decision to admit to the underlying felony—in this instance, robbery—because they believed the State, proceeding under an attempted first-degree murder theory, would have to prove that Weatherspoon knew that his codefendant intended to shoot the victims once inside the Dunkin’ Donuts. Even if Weatherspoon first became aware of the State’s intention to proceed under the attempted felony murder theory during voir dire, this would have still prejudiced defense counsel’s trial preparation, the bulk of which took place long before a jury was selected.

Adding to the prejudice in this case, over Weatherspoon’s objection, the jury was given only a general verdict form with the single charge of attempted premeditated murder. “It is well established that a general jury verdict cannot stand where one of the theories of prosecution is legally inadequate.” Fitzpatrick v. State, 859 So.2d 486, 490 (Fla. 2003). Additionally, during deliberations the jury asked for “[cjlarifieation on Attempted 1st deg.- murder and Attempted 1st deg. felony murder. Attempted 1st deg. felony murder is not on the verdict form,” to which the prosecutor commented, “[I]t sounds like they were probably thinking we had to delineate which one[,]” making it impossible to determine upon which theory the jury actually relied.

We conclude that the cases relied on by the State are inapposite. First, as to White v. State, 973 So.2d 638 (Fla. 4th DCA 2008): As Judge Warner describes in her dissent, that case is distinguishable because even though the information in White did not cite to the attempted felony murder statute, all of the essential elements of the crime were alleged. Weatherspoon, 194 So.3d at 347-48 (Warner, J., dissenting). Additionally, White never raised an objection to the charging document or the jury instructions at trial. Id. at 348. As Judge Warner explains:

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, 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.

Id.

The State also relies on the case of Morales v. State, 785 So.2d 612 (Fla. 3d DCA 2001). In that case, the Third District found no fundamental error and that the defendant was not prejudiced where the information cited to a repealed and subsequently replaced statute. Id. at 614. The court held that the language in the information placed the defendant on proper notice of the crime with which he was being charged. Id. Morales is distinguishable from the instant case. First, and importantly, the error in Morales was not preserved- as it was in this case. Id. In Morales, the attorney failed to object at the trial level, and therefore Morales had to show fundamental error on appeal. Id. Next, as opposed to this case, although the information in Morales cited the repealed version of the statute, it still described all of the essential elements of the crime and tracked the correct statute’s language. Id. In this case, by contrast, the information neither cited the correct statute nor described the essential elements of the correct statute.

Weatherspoon properly preserved the error and as explained, the State cannot establish that the failure to charge attempted felony murder in the information did not prejudice Weatherspoon. He is thus entitled to relief.

CONCLUSION

Because the statutory crime of attempted felony murder is a crime separate from attempted murder with different elements and a different punishment, the State must charge the crime of attempted felony murder in order to be entitled to a jury instruction on that crime and to proceed under that theory. 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 the defendant’s right to notice of the charges against him so as to provide the defendant with due process of law under article I, section 9, of the Florida Constitution. Accordingly, we answer the certified question in the affirmative, quash the Fourth District’s decision in Weather-spoon, and disapprove of the decisions in Dempsey and Florence to the extent they are inconsistent with this opinion; We therefore remand this case to the Fourth District for further proceedings consistent with this opinion.

It is so ordered.

LABARGA, C.J., and QUINCE, CANADY, POLSTÓN, and LAWSON, JJ., concur.

LEWIS, J., concurs in result.

      . Weatherspoon’s codefendant, Tharod Bell, also sought review of the decision of the Fourth District in his case, Bell v. State, 152 So.3d 714 (Fla. 4th DCA 2014). This Court has accepted jurisdiction of Bell's review proceeding, Case No. SC 15-245 (Fla. notice invoking discretionary jurisdiction filed Feb. 10, 2015), and the case is currently stayed pending the disposition of the instant case.

      . Weatherspoon also briefed an additional issue of whether Weatherspoon unequivocally invoked his right to counsel, such that the trial court's admission of his statements to the police was in error. We exercise our discretion and decline to address this issue that is outside the scope of the certified question. See Fla. R. App. P. 9.030(a)(2)(A)(v); Campbell v. State, 125 So.3d 733, 734 n.1 (Fla. 2013) (declining to address issue beyond the basis of the Court’s conflict jurisdiction); Paulucci v. Gen. Dynamics Corp., 842 So.2d 797, 803 n.6 (Fla. 2003) (declining to address issues outside of the scope of the certified question).

      . During oral argument and in response to questioning about the difference in punishments between the two crimes, the State explained why in this case the punishments would be the same. That argument was not made in the briefs and does not affect our analysis of the underlying issues that require a new trial.