
    Eric KAPLAN, Appellant, v. STATE of Florida, Appellee.
    No. 95-1118.
    District Court of Appeal of Florida, Fifth District.
    Sept. 20, 1996.
    Rehearing Denied Nov. 1, 1996.
    
      Chandler R. Muller of Law Offices of Chandler R. Muller, P.A., Winter Park, and Terrence E. Kehoe of Law Offices of Terrence E. Kehoe, Orlando, for Appellant.
    Robert A. Butterworth, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   COBB, Judge.

Kaplan appeals from his convictions and sentences for attempted first degree felony murder with a firearm, aimed burglary of a dwelling, and shooting into a building. The shooting incident took place in 1992, but the trial was not held until February of 1995, just prior to the Florida Supreme Court’s opinion in State v. Gray, 654 So.2d 552 (Fla.1995). Kaplan raises issues concerning the correctness of the court’s denial of a jury instruction regarding Kaplan’s mental condition, and an instruction on hallucinations or delusions, whieh we find to be without merit. However, pursuant to Gray, we reverse Kaplan’s conviction for attempted first degree felony murder.

In this case, Kaplan was charged with attempted first degree murder, based on two theories: premeditated attempted first degree murder and attempted first degree felony murder. The information charged in Count I:

In the County of Seminole, State of Florida, Erie Adam Kaplan, a/k/a Eric Adam Kalan [sic] on the 27th day of September, 1992, did commit the offense of Attempted First Degree Murder in that he did attempt to kill Robert Starks or Judith Starks, a human being, by shooting at Judith Starks with a gun, with a premeditated design to effect the death of Robert Starks, or did, while engaged in the perpetration of or in the attempt to perpetrate a burglary, said Defendant committed an act that could, but did not cause the death of Judith Starks, a human being, to wit: shooting into the home of Judith Starks with a gun, contrary to sections 777.04(1), 774.04(4)(a), and 782.04(l)(a)l or 782.04(l)(a)2.e, and further, during the commission of said offense, the defendant carried or used and personally had in his possession a firearm as defined by section 790.001(6), Florida Statutes, contrary to section 775.087(l)(a) and 775.087(2)(a)l, Florida Statutes.

The prosecution agreed to submit to the jurors a special verdict form which required them to select one theory of the crime or the other, or a list of lesser included offenses. The trial court instructed the jury it could return a verdict on either one of the two attempted murder theories charged in Count I, but not both. The jury returned with a verdict of guilty of attempted first degree felony murder with a firearm.

We disagree with Kaplan’s contention that he cannot now be retried for attempted premeditated murder. There was evidence adduced at trial which was sufficient to sustain a jury verdict of guilt of that offense. The jury, in effect, was precluded from making that finding by the court’s instruction that it could not find guilt on both theories submitted to it: premeditation and the attempted felony murder. The jury’s selection of the latter theory, which was nullified by the decision in Gray, does not logically or legally constitute a rejection of the premeditation charge. We cannot agree with the appellant’s argument that the jury indirectly exonerated Kaplan of attempted premeditated murder. We cannot know whether or not the trial jury would have convicted Kaplan of attempted premeditated murder had there been no impediment to their consideration thereof in the form of the nonexistent crime of attempted felony murder and the instructions pertaining thereto.

Nor do we read the various cases cited by the dissent, including State v. Wilson, 680 So.2d 411 (Fla. 1996) and State v. Miller, 660 So.2d 272 (Fla.1995), as precluding a new trial on the charge of attempted premeditated murder. In Miller, the Florida Supreme Court merely approved the result reached by the Third District in Miller v. State, 651 So.2d 1313 (Fla. 3d DCA 1995), wherein the appellant’s conviction for the nonexistent crime of attempted felony murder was reversed, and his conviction for armed robbery was affirmed. There is no indication that the defendant in either Wilson or Miller was ever charged with attempted premeditated murder, as was Kaplan in the instant ease. The premeditation charge was also absent in all of the other cases cited by the dissent as representative of “sole” or “non-general” verdicts. The only line of cases which we have found that deals with the instant issue, where a pre-Gray trial jury was forced to choose between attempted felony murder and attempted premeditated murder, is represented by Bowers v. State, 676 So.2d 1060 (Fla. 4th DCA 1996). We agree with the result reached by the Fourth District in that case, ie., the requirement of a new trial for attempted premeditated murder.

We affirm Kaplan’s convictions and sentences for.armed burglary and shooting into a building; we reverse his conviction for attempted felony murder and remand for a new trial on the charge of attempted first degree premeditated murder.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED FOR NEW TRIAL.

PETERSON, C.J., concurs.

W. SHARP, J., dissents with opinion.

W. SHARP, Judge,

dissenting.

I respectfully dissent, in part, because in my view, Kaplan should not be retried on the premeditated attempted first degree murder theory. Retrial on the lesser included offenses on which the jury was instructed, which pertain to the non-existent crime of attempted first degree felony murder, should be the only crimes on remand for which Kaplan is tried. See State v. Wilson, 680 So.2d 411 (Fla. 1996). I agree no other reversible error occurred, and the other convictions for crimes in this case, should be affirmed.

This case is different from any other precedent I have found in this state involving the State v. Gray, 654 So.2d 552 (Fla.1995) problem because it is one in which the jury rendered a special verdict, and it is clear that the jury elected not to convict Kaplan of attempted premeditated murder. It could have, but it did not.

Kaplan’s primary defense in this case was diminished mental capacity at the time of the crime. Acknowledging the weakness of the state’s case on the element of proving premeditation beyond a reasonable doubt, the prosecutor stressed in his closing argument, that if the jury had a reasonable doubt about intent or premeditation, it should not find Kaplan guilty of attempted first degree premeditated murder. Rather, the prosecutor urged the jury to return a verdict of attempted first degree felony murder because under that theory, the state did not need to prove beyond a reasonable doubt, that Kaplan had an intent to Mil when he fired shots into the dwelling. The jury did just that: guilty of attempted first degree felony murder.

In my view this is entirely different than cases in which a jury returned a general verdict of guilty, having been charged on two attempted murder theories (attempted premeditated murder and attempted felony murder), and it is impossible to determine on which theory the jury convicted. See Humphries v. State, 676 So.2d 1 (Fla. 5th DCA, 1995) (defendant charged with attempted murder of victim either by premeditation or during commission of a felony, and jury simply found defendant guilty as charged.); Campbell v. State, 671 So.2d 876 (Fla. 4th DCA 1996) (defendant, convicted of attempted first degree murder based on either attempted felony murder or attempted premeditated murder, but appellate court could not conclude beyond a reasonable doubt that he was not convicted on the attempted felony murder theory). In both Humphries and Campbell, the courts stated reversal and retrial on the premeditated attempted murder theory was proper because “it is impossible to determine wMch of the two theories the jury accepted.” Humphries, 676 So.2d at 3.

In cases where the jury was not instructed on the premeditated attempted murder theory, and the jury returned a guilty verdict based on the attempted felony murder charge (a non-existent crime of late) the Florida Supreme Court held it was proper to reverse the conviction for the nonexistent crime, or reverse and remand for trial on lesser included (valid) criminal offenses per-taming to the attempted felony murder charge, on which the jury had been instructed. But no mention was made in those cases of the state’s ability on remand to try the defendant for a premeditated attempted murder.

I disagree that Bowers v. State, 676 So.2d 1060 (Fla. 4th DCA 1996) is on point. In that case the defendant was charged and tried on one count of attempted first degree murder, and the jury was instructed it could convict on either the felony murder theory or the premeditation theory. The jury simply convicted the defendant as charged, although before rendering its verdict it requested instructions on how to list an attempted first degree murder verdict on the felony-murder theory. In response, the court re-read its instructions on count one. The jury then returned a verdict of guilty as charged. This is not the same thing as a special verdict. In fact the court in Bowers, in reversing and remanding for a new trial on the premediation theory, quoted from Williamson v. State, 671 So.2d 281 (Fla. 4th DCA 1996). “It is impossible to determine which theory the jury used to convict defendant and because the facts could support a guilty verdict on either theory.” (emphasis supplied) 676 So.2d at 1061.

In this case, the jury convicted Kaplan of the non-existent crime, but it did not convict him for the premeditated crime. There is no doubt about it. Whether the jury might have convicted Kaplan for premeditated attempted murder had it not been given the option to convict him for attempted felony-murder, is speculation. The inescapable fact is, it did not. An accused may only be retried for the offense for which he was convicted, or double jeopardy problems rise in a flurry. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); Ray v. State, 231 So.2d 813 (Fla.1969).

An explicit finding of “not guilty’ in cases involving special verdicts is not required to create a double jeopardy bar on remand. In Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984) and Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), the United States Supreme Court accorded double jeopardy protection to special verdicts rendered by fact-finders, which refused to impose the death penalty. The court reasoned that the special verdicts which did not impose a death penalty, were indistinguishable from acquittals on charged offenses because: the prosecution had the burden of proving statutorily defined facts beyond a reasonable doubt; the factfin-der was required to make a specific fact finding in rendering the special verdict; the factfinder’s decision was based on a determination that the prosecution either had or had not proven its case; and the determination was made following a hearing which involved the submission of evidence and presentation of argument.

In Green, the government charged the defendant with first degree murder and sought the death penalty for arson which caused a person’s death inside a building. The court instructed the jury on first degree murder as well as the offense of second degree murder. The jury convicted Green of second degree murder. After his conviction was set aside, he was retried, and the second jury convicted him of first degree murder. The United States Supreme Court held that double jeopardy barred his conviction. The Court said:

In brief, we believe this case can be treated no differently, for purposes of former jeopardy, than if the jury had returned a verdict which expressly read, ‘we find the defendant not guilty of murder in the first degree but guilty of murder in the second degree.’

Green, 355 U.S. at 191, 78 S.Ct at 225.

In Achin v. State, 436 So.2d 30 (Fla.1982), the Florida Supreme Court held that the fact that a jury convicted a defendant of a lesser included offense did not bar his retrial for the main offense for double jeopardy purposes. In that case the conviction had been for a non-existent crime. However, key to the court’s ruling was the fact that the two crimes involved the same elements. Technically, the non-existent crime (attempted extortion) was the same thing as extortion. It distinguished Green on the basis that in Achin, the elements for both crimes were identical. In the case before this court, the elements of the two crimes are vastly different.

In my view, the special verdict established that the jury rejected the element of premeditation in this case. Thus, pursuant to Rum-sey and Bullington, the special verdict should be viewed as indistinguishable from an acquittal for double jeopardy purposes. To retry Kaplan for attempted premeditated murder on remand will, in my view be a violation of his constitutional double jeopardy rights. 
      
      . §§ 782.04(l)(a), 777.04, 775.087(1), Fla.Stat. (1991).
     
      
      . §§ 810.02(1) and (2)(b), 775.087(2)(a)1, Fla.Stat. (1991).
     
      
      . §§ 790.001(6), 790.19, Fla.Stat (1991).
     
      
      . This fact is not denied by the appellant or by the dissent.
     
      
      . Section 810.02(1) and (2)(b) and section 775.087(2)(a)1, Fla Stat. (1991) (armed burglary of a dwelling).
     
      
      
        . See State v. Miller, 660 So.2d 272 (Fla.1995).
     
      
      . See State v. Wilson, 680 So.2d 411 (Fla. 1996).
     
      
      . See also Gutierrez, v. State, 665 So.2d 294 (Fla. 5th DCA 1995) (court simply reversed conviction for attempted third degree murder as a nonexistent crime); Selway v. State, 660 So.2d 1176 (Fla. 5th DCA 1995) (court simply reversed defendant’s conviction for attempted third degree felony murder ); Valladares v. State, 658 So.2d 626 (Fla. 5th DCA 1995) (court simply reversed conviction for non-existent crime of attempted felony murder); Crystal v. State, 657 So.2d 77 (Fla. 1st DCA 1995) (court simply reversed attempted third degree murder conviction).
     
      
      . Art. I, § 9, Fla. Const.; Fifth Amend., U.S. Const.
     