HARELL v. STATE (1999)

District Court of Appeal of Florida,Fifth District.

Warren HARELL, Appellant, v. STATE of Florida, Appellee.

No. 98–1219

Decided: March 12, 1999

James B. Gibson, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant. Robert A. Butterworth, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.

Harell was charged with attempted first degree murder. The jury returned a verdict of attempted second degree murder. He appeals claiming that the jury venire was improperly summoned and that there is no such crime as attempted second degree murder.

We have previously ruled against Harell on the jury issue. See Williams v. State, 724 So.2d 724 (Fla. 5th DCA 1999).

The views that an attempt to commit one crime cannot, under Blockburger, be the lesser included offense of an attempt to commit another crime and that since one cannot attempt a happenstance, one cannot attempt second degree murder, did not prevail. Alas, neither can Harell. See Watkins v. State, 705 So.2d 938, 941–43 (Fla. 5th DCA 1998) (Harris, J., dissenting).

AFFIRMED.

HARRIS, J.

DAUKSCH and GOSHORN, JJ., concur.

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