Akins v. StateAkins v. State
AFFIRMED.
ORFINGER, and FRANK D. UPCHURCH, Jr., JJ., concur.
COWART, J., dissents with opinion.
COWART, Judge, dissenting:
This case involves constitutional law, a double jeopardy identity of offense problem, a due process problem resulting from the failure of a charging document to allege all essential constituent elements of an offense of which the defendant was convicted and the question of whether violations of constitutional double jeopardy and due process constitute fundamental error.
THE FACTS:
A bank employee was in a repossessed car in the bank parking lot inspecting it. The defendant entered the car, pushed the employee down, put a knife to her throat, and threatened to kill her if she did not give him her purse. When told she had no purse he demanded the car keys. When told the car did not run, he ran.
CONVICTION:
Charged with attempted armed robbery (count 1), aggravated battery (count 2), and burglary of a conveyance with an assault therein (count 3), the defendant was convicted of (1) attempted armed robbery (count one), (2) aggravated assault as a lesser included offense of the aggravated battery charged in count two, and (3) trespass while armed as a lesser included offense of the burglary with an assault charged in count three.
I. CONSTITUTIONAL LAW — DOUBLE JEOPARDY — IDENTITY OF OFFENSES — ATTEMPTS:
Principles:
(1) The double jeopardy clauses of the state1 and federal2 constitutions prohibit a person from being twice put in jeopardy for “the same offense.”
(2) If one statutory offense includes all of the elements of another, those two offenses are constitutionally “the same offense” and a person cannot be put in jeopardy as to both such offenses unless the two offenses are based on two separate and distinct factual events.3 (3) The conviction of a defendant of two crimes which are, in constitutional double jeopardy concept, “the same offense” violates the double jeopardy clauses of the state and federal constitutions and constitutes fundamental error.
The dissent in Baker v. State, 425 So.2d 36, 59 (part 10A) (Fla. 5th DCA 1982),4 warns of the difficulty in making an accurate substantive analysis for double jeopardy purposes when one of the offenses being compared is an attempt offense (
The analysis of two statutory offenses for substantive sameness or difference for double jeopardy and due process purposes is properly a two step test;6 the first step is to abstractly compare the elements of
This is the very essence of the recent holding by the supreme court in State v. Pinder, 375 So.2d 836 (Fla. 1979), and by this court in Snowden v. State, 449 So.2d 332 (Fla. 5th DCA 1984), rev. granted, No. 65,176 (State v. Snowden),12 that constitutional double jeopardy prohibits the conviction of felony murder and the underlying felony upon which the felony murder charge is based. This is the proper conceptional basis for the recent holdings by the Fourth District Court of Appeal that double jeopardy prohibits the conviction of the offense of use of a firearm in the commission of a felony (
In this case the aggravated battery charge and the aggravated assault (count II) of which the defendant was convicted and the facts which supported that conviction also constitute the factual basis for “the overt act” element of the attempted robbery with a firearm offense (count I) of which the defendant was also convicted. Thus the defendant was twice put in jeopardy and convicted for what was in this case, in substance and in constitutional contemplation, “the same offense” and one of those two convictions should be reversed. On this point Torrence v. State, 440 So.2d 392 (Fla. 5th DCA 1983), might appear to be in point but it is not. Torrence presented the question of whether the allegation that the defendant “carried” a firearm in a count alleging an attempted armed robbery was a sufficient allegation to charge that the defendant “used” a deadly weapon to make an assault, so as to give the defendant “due process” notice of the essential constituent elements of the offense of aggravated assault (
II. CONSTITUTIONAL LAW — DUE PROCESS — CONVICTION OF OFFENSE NOT CHARGED:
Principles:
(4) The state and federal constitutions provide that in all criminal prosecutions, the accused shall enjoy the right to be informed of the nature and cause of the accusation against him13 and that no person shall be deprived of life, liberty or property without due process of law.14
(5) A criminal charging document is adequate to charge, to inform the accused of the nature and cause of the accusation against him, to give due process notice of, and to place a defendant in jeopardy as to, a particular criminal offense only if the charging document
alleges sufficient ultimate facts to support every essential constituent element of such offense. (6) Conviction of a defendant of a crime with which he was not charged, and for which he was not lawfully tried, violates the constitutional requirement that an accused be informed of the accusation against him and also violates the due process clauses of the state and federal constitutions and constitutes fundamental error.
(7) A criminal charging document charging aggravated battery (
§ 784.045, Fla. Stat. ) does not necessarily and as a matter of law allege all facts essential to adequately charge and to give due process notice of an accusation of aggravated assault (§ 784.021, Fla. Stat. ).
A due process question is presented by the conviction of Akins of aggravated assault as a necessary lesser included offense of the aggravated battery charged in count II. If the charges of aggravated battery and the aggravated assault are both based on the use of a deadly weapon (
Because statutory assault (
The same problem is involved with the defendant‘s conviction of trespass while armed (
III. CONSTITUTIONAL LAW — VIOLATION OF DOUBLE JEOPARDY AND DUE PROCESS — FUNDAMENTAL ERROR:
Principles:
(8) Criminal convictions subject to fundamental error resulting from violation of basic constitutional double jeopardy or due process rights are per se harmful and reversible without any showing of prejudice, in the absence of an effective waiver.
(9) A waiver of a basic constitutional right, or of the fundamental error resulting
from its violation, must be made knowingly, intentionally and intelligently, and cannot be implied from ignorance, silence, inadvertence, or inaction. (10) Fundamental errors are not subject to contemporaneous objection rules or harmless error statutes and are subject to correction at any time, on direct appeal, by post-conviction proceedings or by extraordinary remedy.
The prohibition against double jeopardy and the guarantee of due process are constitutional rights of the highest order. Of course, most, if not all, constitutional rights, including the right against double jeopardy and due process, may be waived. However, to be valid, waivers of fundamental constitutional rights, and of errors resulting from their violations, must be made knowingly (with specific knowledge of the right or its violation), intentionally (purposefully and by affirmative action) and intelligently (with the aid and advice of competent, effective counsel) and cannot be merely implied from ignorance, silence, inaction or inadvertence. In addition to the cases cited in the dissent in Torrence v. State, supra, supporting this proposition, see the dissent in W.J.W. v. State, 446 So.2d 248, (Fla. 5th DCA 1984). See also Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (standard for determining validity of waiver of fundamental constitutional right is whether there is record showing of intentional and intelligent relinquishment or abandonment of that right); Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) (defense guilty plea constitutes waiver of several fundamental constitutional rights, including privilege against compulsory selfincrimination, right to trial by jury and right to confront one‘s accusers, record must show that the defendant entered his plea of guilty voluntarily and with understanding); Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (waiver of right to counsel must be knowingly and intelligently made). See also United States v. Brown, 569 F.2d 236 (5th Cir.1978) (a valid waiver requires an intentional relinquishment of a known right); Mitchell v. State, 407 So.2d 1005 (Fla. 5th DCA 1981). As to waiver of right to jury trial, see, e.g., Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed.2d 854 (1930), overruled on other grounds, Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970); Powers v. State, 370 So.2d 854 (Fla. 3d DCA 1979);
Many provisions of criminal rules, in effect bestow procedural rights not given by the constitution or statutes or enlarge upon such substantive rights. Other provisions of criminal procedure rules merely implement or effectuate substantive rights given by constitution or statute. There is a great difference between these types of rules which is often ignored. A violation of a pure rule right does not constitute fundamental error and is not reversible error per se and is subject to the harmless error statute (
Garcia v. State, 444 So.2d 969 (Fla. 5th DCA 1983); Drakes v. State, 400 So.2d 487 (Fla. 5th DCA 1981), rev. den., 411 So.2d 381 (Fla. 1981); Chapman v. State, 389 So.2d 1065 (Fla. 5th DCA 1980), explicitly hold that violations of constitutional double jeopardy rights do not constitute fundamental error which can be raised for the first time on appeal. Those holdings and the cases upon which they are based are in error. Actually the three cases from this court are contrary to three other cases in which this court has implicitly held to the contrary and granted relief from double jeopardy violations where such violations were raised for the first time on appeal. See, e.g., Vela v. State, 450 So.2d 305 (Fla. 5th DCA 1984); Muszynski v. State, 392 So.2d 63 (Fla. 5th DCA 1981) and Goss v. State, 398 So.2d 998 (Fla. 5th DCA 1981). That Muszynski involves a double jeopardy violation and its correction as fundamental error although not raised in the trial court is obvious from close study. See McGee v. State, 438 So.2d 127 (Fla. 1st DCA 1983). The First District Court of Appeal has recently held a double jeopardy violation to be fundamental error. Solomon v. State, 442 So.2d 1030 (Fla. 1st DCA 1983). Other cases have impliedly held the same way by granting relief from double jeopardy violations, see, e.g., Brown v. State, 452 So.2d 605 (Fla. 2d DCA 1984). This court should expressly recede from Chapman, Drakes and Garcia and embrace the correct principles of constitutional law and fundamental error that underlie Vela, Goss and Muszynski.
SUMMARY
Akins’ conviction of attempted armed robbery should be affirmed but his conviction of aggravated assault under the charge of aggravated battery in count two and of trespass while armed under the charge of burglary of a conveyance with an assault should be reversed as fundamental errors resulting from the violation of both constitutional double jeopardy and due process rights. This court should not dispose of the serious constitutional issues in this case by a PCA which under Article V, Sec. 3(b)(3), is effective to deny a defendant‘s right to have the supreme court exercise jurisdiction to review a decision of this court that conflicts with decisions of another district court of appeal or of the supreme court on the same point of law.