STATE of Florida, Petitioner, v. Charles L. BAKER, Respondent. Charles L. BAKER, Petitioner, v. STATE of Florida, Respondent.
Nos. 63269, 63135.
Supreme Court of Florida.
July 12, 1984.
Rehearing Denied October 22, 1984.
456 So.2d 419
Jim Smith, Atty. Gen., Shawn L. Briese and Sean Daly, Asst. Attys. Gen., Daytona Beach, and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for petitioner/respondent.
Nancy Little Hoffmann and Cathy Jackson Burris of the Law Offices of Nancy Little Hoffmann, Fort Lauderdale, for respondent/pеtitioner.
We have for review Baker v. State, 425 So.2d 36 (Fla. 5th DCA 1982), because of conflict with Borges v. State, 415 So.2d 1265 (Fla. 1982). We have jurisdiction,
An indictment charged Baker with first-degree premeditated murder and use of a firearm during the commission of a felony. The jury convicted him of both counts, and the trial court sentenced him for both. On appeal the district court reversed the sentence for the firearm conviction.
Baker argued to the district court that the use of the firearm was a Brown v. State, 206 So.2d 377 (Fla. 1968), category four lesser included offense of the first-degree premeditated murder. The district court agreed with his contention and framed the question presented to it as
whether or not the language of section 775.021(4), in its reference to “lesser included offеnses” is limited to necessarily included offenses or also includes a lesser offense encompassed by the charging language of the greater offense for which a defendant has been convicted and sentenced.
425 So.2d at 39 (emphasis in original). Deciding that this Court had never answered that question, the district court held that a Brown category four lesser included offense was within the meaning of “lesser included offense” as used in
In Brown this Court considered the problem of jury instructions on lesser included offenses. Writing for the Court, Justice Thornal analyzed former
(1) Crimes divisible into degrees.
(2) Attempts to commit crimes.
(3) Offenses necessarily included in the offense charged.
(4) Offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence.
206 So.2d at 381 (emphasis in original).4
Categories one and two are self-explanatory. In category three “the lesser offense must be an essential aspect of the major offense.” Id. at 382. The necessity for giving instructions on category one through three offenses is obvious. These categories of lesser included offenses implement “the nonconstitutional right of ... giving the jury an opportunity to find the accused guilty of an offense lesser in severity of punishment than that with which he was charged.” Baker, 425 So.2d at 53
The inclusion of category four in Brown extended this principle of law to the elements cоntained in the accusatory pleading. As the Court stated in Brown:
Section 919.16, [sic]5 makes provision for offenses which are necessarily included in the offense charged. It is applicable to that group of offenses which includes lesser offenses as essential elements. This suggests a further type of “lesser included” situation. This fourth category comprehends those offenses which may or may not be included in the offense charged, depending upon, (a) the accusatory pleading, and (b) the evidence at the trial. In this category, the trial judge must examine the information to determine whether it alleges all of the elements of a lesser offense, albeit such lesser offense is not an essential ingredient of the major offense alleged. If the accusation is present, then the judge must determine from the evidence whether it supports the allegation of the lesser included offense. If the allegata and probata are present then there should be a charge on the lesser offense.
206 So.2d at 383 (emphasis in original). Former section 919.16, however, concerns “any offense which is necessarily included in the offense charged.”6
As Judge Cowart pointed out in his dissent to Baker, Brown‘s category four is likely derived from the single transaction rule. Subsection 775.021(4), however, abolished that rule. Borges v. State, 415 So.2d 1265 (Fla. 1982). The focus on the common elements of two or more crimes is another erroneous way of thinking in terms of the single transaction rule. “Since proof overlaps only when two crimes arise out of a single factual event (single transaction), this means that mere commonalty [sic] of some events occurring in the same factual transaction does not constitute double jeopardy.” 425 So.2d at 51 n. 25.
In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Supreme Court considered whether a single act could result in multiple punishments and stated:
The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.
Id. at 304, 52 S.Ct. at 182. The Court later explained the Blockburger test:
As Blockburger and other decisions applying its principle revеal, the Court‘s application of the test focuses on the statutory elements of the offense. If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.
Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1293 n. 17, 43 L.Ed.2d 616 (1975) (citations omitted). Blockburger “means that two statutory offenses are essentially indеpendent and distinct if each offense can possibly be committed without committing the other offense.” 425 So.2d at 50 (Cowart, J., dissenting) (emphasis in original). The Blockburger test is a rule of statutory construction which “should not be controlling where, for example, there is a clear indication of contrary legislative intent.” Albernaz v. United States, 450 U.S. 333, 340, 101 S.Ct. 1137, 1143, 67 L.Ed.2d 275 (1981).
In Borges v. State we held that separate convictions and sentences did not violate the double jeopardy clause. We relied on Albernaz to reach the conclusion that
whеre the legislature has expressed its intent that separate punishments be imposed upon convictions of separate offenses arising out of one criminal episode, the Double Jeopardy Clause is no bar to such imposition.
415 So.2d at 1267. Shortly after Borges, we acknowledged the Iannelli explanation of Blockburger: “In applying the Blockburger test the courts look only to the statutory elements of each offense and not to thе actual evidence to be presented at trial or the facts as alleged in a particular information.” State v. Carpenter, 417 So.2d 986, 988 (Fla. 1982) (emphasis supplied). Judge Cowart echoed this in Baker:
Since the relationship between a greater offense and a permissibly lesser included offense depends only on pleading techniques and proof, and not on the law, this relationship constitutes no logicаl basis upon which to distinguish between offenses for the purpose of determining if they are constitutionally “the same offense.”
425 So.2d at 54 (footnote omitted). Looking at the evidence and the alleged facts, however, is exactly what is required when dealing with a Brown category four lesser included offense.7
“Lesser included offense” in regard to jury alternatives is different from what that term means in regard to double jeopardy. The former implements the nonconstitutional right of an accused to an instruction which gives the jury an opportunity to convict of an offense with less severe punishment than the crime charged. The latter, on the other hand, involves distinguishing offenses in order to protect against multiple prosecutions fоr the same crime. As stated by Judge Cowart:
Attributing category four connotations to the term “lesser included offenses” in double jeopardy analysis results in an improper consideration of the severity of the punishment and the factual allegations in [the] charging document, rather than [of] the elements of the statut[ory] offense.
425 So.2d at 53. Brown category four lesser included offenses have nothing to do with double jeopardy or with this case.
Baker‘s indictment charged him with first-degree premeditated murder,
Use of a firearm during the commission of a felony is not a lesser included offense of first-degree premeditated murder, and Baker could be convicted of and sentenced for each of these crimes. The district court, therefore, erred in reversing his sentence for the firearm conviction. We hold that Bell v. State, 437 So.2d 1057 (Fla. 1983), is limited to necessarily lesser included
It is so ordered.
BOYD, C.J., and ALDERMAN, EHRLICH and SHAW, JJ., concur.
ADKINS and OVERTON, JJ., dissent with an opinion.
STATE of Florida, Petitioner, v. Charles L. BAKER, Respondent. Charles L. BAKER, Petitioner, v. STATE of Florida, Respondent.
Nos. 63269, 63135.
Supreme Court of Florida.
July 12, 1984.
ADKINS, Justice, dissenting.
I would follow the views expressed in Bell v. State, 394 So.2d 979 (Fla. 1981).
STATE of Florida, Petitioner, v. Charles L. BAKER, Respondent. Charles L. BAKER, Petitioner, v. STATE of Florida, Respondent.
Nos. 63269, 63135.
Supreme Court of Florida.
July 12, 1984.
OVERTON, Justice, dissenting.
I dissent. If an offense is a lesser included offense for which a jury must be instructed, then it is neither reasonable nor logical to allow a defendant to be charged separately for that lesser included offense as an independent offense. In my view, the holding of the majority raises serious equal protection problems. Further, I find that the majority has clearly indulged in judicial legislation by interpreting the words “lesser included offenses” in
The majority opinion has never explained how this decision and our approved table of lesser included offenses must be reconciled and applied. I am particularly concerned that there is no discussion in the opinion of how the principles adopted therein will be applied under the twо consolidated categories of lesser included offenses we adopted in In re Use by Trial Courts of Standard Jury Instructions in Criminal Cases, 431 So.2d 594 (Fla. 1981). In discussing Brown v. State, 206 So.2d 377 (Fla. 1968), the majority fails to explain the proper application of the present table of lesser included offenses. The comment to the table of lesser included offenses states:
[T]he suprеme court also approved the schedule of lesser included offenses and accepted the recommendation of the committee to consolidate the four Brown categories into two categories. The supreme court directed that the categories should be renumbered and designated as follows:
1. Offenses necessarily included in the offense charged, which will include some lesser degrees of offenses
2. Offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence, which will include all attempts and some lesser degrees of offenses
The court also dirеcted that the appropriate Florida Rules of Criminal Procedure be amended to accommodate these changes. The categories of the offenses which appear on the schedule of lesser included offenses have been renumbered and designated according to the supreme court mаndate.
Fla. Std. Jury Instr. in Crim. Cases 257 (S.Ct.Comm. 1981).
Under the present law, if evidence is presented to justify a permissive lesser included offense, the trial judge has no choice and must instruct on the lesser included offense, the same as the trial judge has no choice and must instruct on a necessarily lesser included offense. The majority, however, is apparently approving a procedurе whereby, if a defendant is charged separately with a permissive lesser included offense, then that offense can no longer be presented to the jury as a lesser included offense. The result is that the jury may find the defendant guilty of both the primary offense and the permissive lesser included offense and the defendant may be sentenced for both. However, if a defendant is not charged separately, then such a defendant would be entitled to a jury instruction on the permissive lesser included offense when the evidence justifies such a charge. In this latter situation, the defendant can be found guilty of only one offense, either the offense charged or the lesser inсluded offense, and sentenced accordingly. In my view, this presents a clear equal protection issue because two defendants guilty of identical conduct may, because of this procedural interpretation, be treated and sentenced entirely differently.