552 So. 2d 1171 | Fla. Dist. Ct. App. | 1989
Lead Opinion
This case involves a no-doubt unanticipated consequence of the co-existence of the Carawan doctrine
Notwithstanding that our determination is contrary to the decisions in Gibbons v. State, 540 So.2d 144 (Fla. 4th DCA 1989) and Smith v. State, 548 So.2d 755 (Fla. 5th DCA 1989), we conclude that the “greater” of the two Carawan offenses is the one which results in the greater sentence or punishment — here, the aggravated assault — rather than the crime which occupies a higher position on the merely theoretical ladder of seriousness.
I dissent from that portion of the opinion that rejects any option by the state to have the judgment entered on the defendant’s conviction for aggravated assault with a firearm, a third "degree felony carrying a mandatory minimum sentence. Judgment on that conviction, rather than on a second degree felony without a mandatory minimum, would result in a substantially longer sentence being served. Notwithstanding the wording in Barton, there is no reason why the trial judge, at the state’s request, should not be allowed to impose judgment on the count that would result in the defendant receiving the toughest sentence. Nor is there any reason to allow the defendant to benefit from the lesser sentence simply because one of the two convictions cannot stand under Carawan.
Gibbons, 540 So.2d at 145-46 (Stone, J., dissenting in part).
This conclusion is supported not only by what we think is the common sense of the .situation, but also by the language
Approaching the issue from another direction, it must be pointed out that it is entirely within the prosecutor’s discretion
Both sides agree that the determination of habitual offender status made below was defective because of the absence of written or oral findings of fact. § 775.084, Fla.Stat.(1987); Walker v. State, 462 So.2d 452 (Fla.1985); Donaldson v. State, 519 So.2d 737 (Fla. 3d DCA 1988).
Affirmed in part, reversed in part.
BARKDULL, J., concurs.
. Carawan v. State, 515 So.2d 161 (Fla.1987).
. Although this approach makes it unnecessary for us to directly rule upon the issue, we are also attracted by Judge Cowart’s penetrating analysis in the Smith dissent of the purely legal issues which arise from simultaneous convictions of substantive and possession charges. Of course, adoption of his view would lead to the same result as ours. Since our high court will have the entire case before it pursuant to our certificate that the decision is in direct conflict with Gibbons and Smith, Judge Cowart's opinion will also be ripe for its consideration.
. We acknowledge that, since the courts, up to Gibbons and Smith, have not been confronted with the present issue in which the higher degree of a statutory offense carries the lessor guidelines sentence, the language in previous cases must, to a degree, be wrenched out of context to apply to this problem.
. Indeed, there seems to be no restriction upon the state attorney's prerogative to abandon a particular prosecution at any stage of the proceedings, even post-verdict. Obviously, the defendant cannot be heard to complain — or has not until Gibbons and Smith — of his being acquitted of an additional possible charge. One must wonder whether some new constitutional principle (of "lenity"?) is now afoot, requiring that a particular charge be brought, and successfully so, against a defendant so that, when convicted, he may then receive a lesser punishment than otherwise.
. At oral argument, defense counsel suggested that this absurd result was all right because it stemmed from the prosecution’s having made a "mistake.” In order to have consequences favorable to the defendant, however, such a "mistake” must result in an adverse effect upon his protectable rights. Just the opposite is true of the present situation.
. See supra note 4.
. We specifically certify to the supreme court that this decision is in conflict with Gibbons and Smith.
. It is also agreed that the aggravated assault sentence was inadvertently suspended by the trial judge due to a clerical error which shall be corrected after remand.
Concurrence Opinion
(concurring).
I concur with the majority’s opinion and judgment in the instant case, save for that portion of the opinion which (1) affirms the trial court’s entry of judgment and sentence on the aggravated assault conviction [§ 784.021(l)(a), Fla.Stat. (1987)], and (2) vacates the judgment and sentence on the firearm possession conviction [§ 790.07(2), Fla.Stat. (1987)], on the theory that the aggravated assault conviction is the “lesser” of the two offenses. Although I entirely agree with the majority that the trial court’s decision on this point was correct and should be affirmed, I cannot agree with the reason stated by the majority for reaching this result.
I would affirm the trial court’s vacation of the firearm possession conviction on the basis that there is no such crime in Florida as possession or use of a firearm during the commission of a felony under Section 790.07(2), Florida Statutes (1987), where, as here, one of the essential elements of the underlying felony as charged in the information is possession of a firearm. It is simply nonsensical to say that the defendant can be guilty of “display[ing], us[ing], threatening] or attempting] to use [a] firearm” in the instant case “while committing or attempting to commit [the] felony,” § 790.07(2), Fla.Stat. (1987), of “assaulting]” a victim “[w]ith a deadly weapon,” to wit, a firearm. § 784.021(l)(a), Fla. Stat. (1987). Obviously, it is impossible for one to use or display a firearm as an additional criminal act when one is already in the felonious act of using a firearm to assault someone; to say the least, such an additional fictional act is a redundant absurdity. Inasmuch as we are constrained by law to interpret statutes to avoid an unreasonable or absurd result, see Dorsey v. State, 402 So.2d 1178, 1183 (Fla.1981); State v. Webb, 398 So.2d 820, 824 (Fla.1981); Ferre v. State ex rel. Reno, 478 So.2d 1077, 1082 (Fla. 3d DCA 1985), ap
This being so, the trial court properly sentenced the defendant on the aggravated assault conviction and properly vacated the firearm possession conviction. The latter offense is not a “lesser” of the two offenses, as the majority concludes, because, in my view, it is not an offense at all under Florida law. With these reservations, I otherwise fully concur with the majority’s reasoning and disposition of this case.