#### Artist L. McRAE, Appellant, v. STATE of Florida, Appellee.

No. 76-1864.

District Court of Appeal of Florida, Second District.

March 10, 1978.

*1253Ben Kay, St. Petersburg, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.

SCHEB, Judge.

Appellant asks this court to reverse his conviction for felony murder. He contends that the trial court erred in denying his motion to dismiss that charge since as a matter of law he could not be guilty of the crime. We agree and reverse.

On November 11, 1975, appellant and Lawrence Carl Wright entered a convenience store where they committed robbery. Marvin Robertson waited for them in a car parked outside the store. As Wright and appellant returned to the car, members of the St. Petersburg Police Department surprised them. Appellant shot at the officers. The officers returned fire, wounding appellant and killing Robertson. The state charged appellant with the robbery, and additionally with the second-degree felony murder in the death of Robertson.

Appellant pled guilty to robbery; however, he entered a plea of nolo contendere to the second-degree felony murder charge, specifically reserving the right to appeal the denial of his motion to dismiss. The trial court adjudged appellant guilty of both crimes, and imposed a general sentence of life imprisonment.

Appellant contends that when the police kill a participant in a felony, as in this case, the coperpetrators are not guilty of felony murder. As authority for this proposition appellant cites *Wright*v. *State,*344 So.2d 1334 (Fla.2d DCA 1977), wherein the state prosecuted appellant’s codefendant Wright for the same crimes. We think this case is controlled by *Wright*and for the reasons therein stated appellant’s conviction of second-degree felony murder cannot stand.

The conviction for second-degree murder is vacated. Since the trial court imposed a general sentence, it is impossible to determine what sentence the trial court intended to impose for the robbery conviction; therefore, this cause is remanded with directions to resentence appellant for the crime of robbery. Appellant shall be entitled to be present at the resentencing.

GRIMES, Acting C. J., concurs.

OTT, J., dissents with opinion.

OTT, Judge,

dissenting.

The action of the majority is an acceptance and further application of this court’s opinion in *State v. Williams,*254 So.2d 548 (Fla.2d DCA 1971), followed and further extended by this court in *Wright v. State,*344 So.2d 1334 (Fla.2d DCA 1977).

Section 782.04(3), Florida Statutes (1976) provides in relevant part:

> When *a person*is killed in the perpetration of, or in the attempt to perpetrate any . . . robbery . . . by a person other than the person engaged in the perpetration of or in the attempt to perpetrate such felony, the person perpetrating or attempting to perpetrate such felony shall be guilty of murder in the second degree . . . . (Emphasis supplied)

In *Wright,*the court declined “. to extend the umbrella of this statute to impose criminal liability on a guilty party for the death of another guilty party.” 344 So.2d at 1337. To the contrary I am of the opinion that this court thereby imposed an unwarranted restriction of the clear and unambiguous language of the statute. In so holding, this court reiterated the finding of *Williams*that “a person” is to be defined as meaning an “innocent person.” This is *1254simply adding a word that a reading of the statute does not in any way suggest or support.

In promulgating the “innocent person” test in *Williams,*Judge McNulty stated as follows:

> The test we suggest is predicated upon the obvious ultimate purpose of the felony-murder statute itself which is, we think, to prevent the death of innocent persons likely to occur during the commission of certain inherently dangerous and particularly grievous felonies. . But we emphasize that the statute is primarily designed to protect the *innocent*public; and it would be incongruous to reach a conclusion having the effect of placing the perpetrators themselves beneath its mantle. (Emphasis in original.) 254 So.2d at 550-51.

I submit that the protection of the public is best served by holding the perpetrators criminally liable for *any*death that results. This seems to be the clear intention of the legislature. In retrospect, the *Williams*court was faced with a situation in which there existed no statutory second degree felony-murder charge since, at that time, the statute provided for only two degrees of felony-murder, i. e., first and third degree felony-murder. Moreover, the unique facts in *Williams*militated against holding the defendant liable for first degree murder. There, the defendant had conspired with one Hannsen for Hannsen to burn defendant’s hunting camp so that defendant could collect the fire insurance proceeds thereon. While attempting the arson, Hannsen accidentally set fire to himself. He died from the burns. The court made much of the fact that the defendant — who was out of the county at the time of the arson — had not been an active participant in Hannsen’s death.1

What happened in *Williams*was that this court was faced with a difficult factual situation and an incomplete statute; the result of this hard case was bad law.

In *Vocelle v. Knight Brothers Paper Company,*118 So.2d 664, 667 (Fla.1st DCA 1960) the court stated:

> When the words of a statute are plain and unambiguous the courts must give to them their plain meaning. ... If the language of a statute is clear and not entirely unreasonable or illogical in its operation, the court has no power to go outside the statute in search of excuses to give a different meaning to words used in the statute.

It would be difficult to argue that this court in *Wright*and especially in *Williams*have not gone outside Section 782.04(3), Florida Statutes. Of course, the 1975 amendment — which provided the specific language now effective — was legislated after the *Williams*case.

The present case raises serious questions 'as to the wisdom of the *Wright-Williams*line of authority. We have here a situation where a pistol-wielding robber, such as McRae, who initiates a gun battle with police stands protected against the resulting death of one of his coperpetrators. Under the present facts — governed by Section 782.04(3) because of the fact that the death bullet could not be traced to McRae and therefore must be considered as having been fired “by a person other than the person engaged in the perpetration of or in the attempt to perpetrate such felony”— McRae may not be prosecuted for the homicide. Going one step further, under the *Williams*test approved in *Wright,*had McRae’s deceased coperpetrator been killed by one of McRae’s bullets directed at the police, McRae could not even then be prosecuted under the felony-murder statute (specifically under Section 782.04(1)) because his coperpetrator would not be regarded as an “innocent victim.”

In addition, the “innocent victim” test will, in other readily conceivable instances, *1255inject a sticky issue of whether or not the person killed was “innocent.” This can only further confuse and complicate what was otherwise a clear, forthright statutory crime.

1

. The court was persuaded by the reasoning of a Pennsylvania court in *Commonwealth v. Bolish,*391 Pa. 550, 138 A.2d 447 (1958). There, according to the *Williams*court “it was stressed that the appellant was *present at the scene of the arson and was an active participant.”*254 So.2d at 550. (Emphasis in original)