State v. FloridaState v. Florida
The issue in this case is whether a defendant may be convicted of both attempted second-degree murder with a firearm and aggravated battery on a law enforcement officer for the single act of shooting a police officer. We review Florida v. State, 855 So.2d 109 (Fla. 4th DCA 2003), in which the Fourth District Court of Appeal held that the dual convictions violated the Double Jeopardy Clauses of the state and federal constitutions.1 The Fourth District acknowledged that its decision is in express and direct conflict with Schirmer v. State, 837 So.2d 587, 589 (Fla. 5th DCA 2003), in which the Fifth District Court of Appeal affirmed convictions for attempted second-degree murder and aggravated battery for a single stabbing. We have jurisdiction. See
FACTS AND PROCEDURAL HISTORY
The defendant, Arthur Florida, shot a police officer in the head during a criminal episode that also involved other offenses. The State charged the defendant with attempted first-degree murder of a law enforcement officer (LEO) in count VI and attempted first-degree murder in count VII, alleging in both counts that Florida shot an officer in the head with a handgun. On count VI, the verdict choices were guilty as charged of attempted murder of a LEO, guilty of aggravated battery of a LEO, guilty of aggravated battery, and not guilty. On count VII, the verdict choices were guilty of attempted first-degree murder, guilty of attempted second-degree murder with a firearm, guilty of aggravated battery, and not guilty. The jury found the defendant guilty of aggravated battery on a LEO on count VI and guilty of attempted second-degree murder with a firearm on count VII. At sentencing, defense counsel moved to vacate the conviction on count VI on double jeopardy grounds, asserting that counts VI and VII “allege the same exact conduct as each other.” The State requested that the trial court withhold sentence on one of the counts, but argued that dual convictions would not cause a double jeopardy violation because each crime had at least one element distinct from the other. The trial court withheld sentence on count VI, but adjudicated the defendant guilty of the offense of aggravated battery on a LEO. On count VII, the trial court adjudicated the defendant guilty of attempted second-degree murder with a firearm and sentenced him to life imprisonment as a habitual violent felony offender.
On direct appeal, the Fourth District affirmed the defendant‘s convictions and sentences per curiam without opinion. See Florida v. State, 701 So.2d 881 (Fla. 4th DCA 1997). The defendant moved for postconviction relief, asserting, inter alia, that the convictions on counts VI and VII for shooting the police officer caused a double jeopardy violation. The trial court summarily denied the motion, but the Fourth District reversed and ruled that the conviction on count VI must be vacated. See Florida, 855 So.2d at 111. The Fourth District also concluded that the dual convictions constituted fundamental error, and the error was not rendered harmless by the withholding of sentence on count VI. See id.
ANALYSIS
Initially, we note that the defendant‘s double jeopardy claim was properly
Under our precedent, absent a clear statement of legislative intent, the test of whether multiple convictions for an act or acts committed during a single episode constitute double jeopardy is governed by Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). See Gordon v. State, 780 So.2d 17, 19-20 (Fla.2001). Under Blockburger, dual convictions are authorized only if each offense contains an element that the other does not. See id. at 20; Gaber v. State, 684 So.2d 189, 192 (Fla.1996). The Blockburger test is codified in
(4)(a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.
(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:
1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by statute.
3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.
Under
To apply
In Gordon, this Court addressed a claim that convictions of attempted murder and aggravated battery were unauthorized. We held that convictions of attempted first-degree murder, felony causing bodily injury, and aggravated battery causing great bodily harm were authorized for the defendant‘s act of shooting the victim during a robbery. See 780 So.2d at 18, 25. We concluded that each offense contained an element not contained in the others, and that none of the three exceptions to the presumption of multiple convictions in
attempted first-degree murder is distinguishable from aggravated battery because the latter requires an intent to cause great bodily harm, not an intent to kill, which is necessary for attempted first-degree murder. Likewise, aggravated battery requires great bodily harm, whereas attempted first-degree murder does not. The attempt to kill the victim is a separate and distinct act which is complete when the gun is fired — regardless of whether the target is hit. Thus, the Blockburger analysis also indicates that attempted first-degree murder and aggravated battery are separately punishable.
Id. at 22.
The State argues that Gordon controls the Blockburger analysis in this case, although one of the convictions is attempted second-degree murder rather than attempted first-degree murder. While he does not discuss Gordon, the respondent in this case asserts that the crimes are the same under Blockburger because the act which is reasonably certain to cause death or great bodily harm necessary for second-degree murder is the same act necessary to establish the intentional infliction of bodily harm for aggravated battery, making the elements congruent. The State responds that although the act may be the same, the elements of the crimes differ.
The State is correct. Under the Blockburger test codified in
Subsection (4)(b)(1), which concerns offenses that “require identical elements of proof,” does not apply here. Victim contact is not a required element of
Leaving aside
When the commission of one offense always results in the commission of another, then the latter is an inherent component of the former. In other words, the Blockburger test by its very nature is designed to distinguish between that group of crimes that are “necessarily lesser included” offenses and that group of crimes that are not.
State v. Weller, 590 So.2d 923, 926 (Fla.1991). Under this standard, necessarily lesser included offenses are those in which the elements of the lesser offense are always subsumed within the greater, without regard to the charging document or evidence at trial. See State v. McCloud, 577 So.2d 939, 941 (Fla.1991) (holding that “an offense is a lesser-included offense for purposes of section 775.021(4) only if the greater offense necessarily includes the lesser offense“). In contrast,
[a] permissive lesser included offense differs in that it cannot be determined to fall within Category 2 unless both the statutory elements and the facts alleged in the accusatory pleadings are consulted. In other words, on the face of the statutes, the two offenses appear to be separate, but the facts alleged in the accusatory pleadings are such that the lesser offense cannot help but be perpetrated once the greater offense has been.
Weller, 590 So.2d at 925 n. 2.
As this Court stated in Gordon, 780 So.2d at 21 n. 3, and the Fifth District recognized in Schirmer, 837 So.2d at 588-89, subsection (4)(b)(3) applies only to necessarily lesser included offenses, those listed in Category 1. See also Gaber, 684 So.2d at 192 (concluding as grounds for rejection of claim to subsection (4)(b)(3) exception that “[i]f two statutory offenses are found to be separate under Blockburger, then the lesser offense is not subsumed by the greater offense“). Consistent with the Court‘s determination in Gordon, 780 So.2d at 21 n. 3, that this exception does not apply to dual convictions of attempted first-degree murder and its Category 2 permissibly lesser included offense of aggravated battery, subsection (4)(b)(3) is inapplicable to the offenses of attempted second-degree murder and aggravated battery (with or without the law enforcement victim enhancement) in this case.
The Fourth District, in deciding below that the dual convictions in this case resulted in a double jeopardy violation, did not directly discuss lesser included offenses. See Florida, 855 So.2d at 111. Instead, the Fourth District relied in part on its decision in Gresham v. State, 725 So.2d 419, 420 (Fla. 4th DCA 1999), in which the court recognized that aggravated battery is a Category 2 lesser included offense of attempted second-degree murder but held nonetheless that convictions of both crimes for the single act of stabbing the victim violated double jeopardy. The Fourth District stated in Gresham that “both the pleading and the evidence relied on by the state at trial are consistent with the stabbing being committed as part of the attempted second degree murder.” 725 So.2d at 421. The Fifth District in Schirmer expressly declined to follow Gresham, concluding, in accord with this Court‘s precedent, that the exception in
The final potential statutory bar to dual convictions that must be addressed is
The terms “core offense” and “degree variant” entered this Court‘s lexicon in Sirmons v. State, 634 So.2d 153, 154 (Fla.1994). This Court held in Sirmons that dual convictions of armed robbery and grand theft of an automobile were unauthorized because “these offenses are merely degree variants of the core offense of theft.” Id.; see also State v. Thompson, 607 So.2d 422, 422 (Fla.1992) (adopting district court decision holding that dual convictions of fraudulent sale of a counterfeit controlled substance and felony petit theft for the same act are barred because the offenses are both degrees of theft); Johnson v. State, 597 So.2d 798, 799 (Fla.1992) (holding that dual convictions of theft of a handbag and of a firearm contained therein are unauthorized for a taking accomplished with “one intent and one act.“)
The State, in asserting that the construction of subsection (4)(b)(2) adopted in Sirmons is inapplicable here, again points to Gordon, in which this Court rejected the claim that attempted first-degree murder and aggravated battery causing great bodily harm were degree variants of the crime of injuring someone. Relying on Justice Kogan‘s observation in Sirmons that “theft, battery, possession of contraband and homicide are the type of core offenses upon which other criminal charges are based,” Gordon, 780 So.2d at 23 (citing Sirmons, 634 So.2d at 155 (Kogan, J., concurring)), the Court concluded that attempted first-degree murder punishes the intent to kill, whereas aggravated battery causing great bodily harm punishes the act of seriously injuring another person. The Court quoted with approval Justice Shaw‘s dissenting opinion in Carawan v. State, 515 So.2d 161 (Fla.1987):
The primary evil of aggravated battery is that it inflicts physical injury on the victim; the primary evil of attempted
homicide is that it may inflict death; there is no requirement that the state prove any physical injury. The two statutes are not addressed to the same evil. The relationship between aggravated battery and attempted homicide is different than that between aggravated battery and actual, not attempted, homicide.
Id. at 173 (Shaw, J., dissenting), quoted in Gordon, 780 So.2d at 23.
Gordon controls our application of
Accordingly, the offenses of aggravated battery on a law enforcement officer and attempted second-degree murder with a firearm do not violate the constitutional ban on double jeopardy and are not exempt from the requirement of separate convictions under
CONCLUSION
For the reasons expressed herein, we quash the Fourth District decision in this case and remand for affirmance of the trial court‘s order denying relief on this issue, and approve the Fifth District‘s decision in Schirmer.
It is so ordered.
WELLS, LEWIS, CANTERO, and BELL, JJ., concur.
PARIENTE, C.J., dissents with an opinion, in which ANSTEAD, J., concurs.
QUINCE, J., dissents with an opinion, in which PARIENTE, C.J., and ANSTEAD, J., concur.
PARIENTE, C.J., dissenting.
While nothing in the constitutional right against double jeopardy prevents a defendant from being charged and convicted of multiple separate crimes arising from a single act, double jeopardy does prevent a defendant from being convicted twice of the same core offense. Yet the majority decision today permits dual convictions on degree variants of the same core offense, battery, for firing one shot that struck a police officer.
The illogic of this result is demonstrated by what would have happened if the defendant had been convicted of the crimes actually charged in counts VI and VII. In that event, double jeopardy would have prevented him from being convicted twice of attempted murder of the same victim. Further, had the victim died and the defendant been found guilty of a completed murder, a separate conviction for the same act would also have to be vacated. See Campbell-Eley v. State, 718 So.2d 327 (Fla. 4th DCA 1998); Laines v. State, 662 So.2d 1248 (Fla. 3d DCA 1995), receded from on other grounds, Grene v. State, 702 So.2d 510 (Fla. 3d DCA 1996). Instead, because the victim survived and the jury found the defendant guilty of two distinct lesser included offenses, aggravated battery of a LEO in count VI and attempted second-degree murder with a firearm in count VII, the majority concludes that no double jeopardy violation occurred.
In Gordon, this Court approved a district court decision affirming convictions of attempted first-degree murder, aggravated battery causing great bodily harm, and felony causing bodily injury for the defendant‘s act of shooting the victim during a robbery attempt. See 780 So.2d at 18, 25. Applying the exception in
Gordon‘s focus on a “primary evil” in applying
The Court in Gordon adopted a narrow reading of Sirmons. The Court initially noted that in his Sirmons concurrence, Justice Kogan stated that theft, battery, possession of contraband, and homicide are the type of core offenses upon which other criminal charges are based. The Court in Gordon then stated:
Extended to its logical extreme, a broad reading of Sirmons and the second statutory exception would render
section 775.021 a nullity. Indeed, the plethoraof criminal offenses is undoubtedly derived from a limited number of “core” crimes. In no uncertain terms, the Legislature specifically expressed its intent that criminal defendants should be convicted and sentenced for every crime committed during the course of one criminal episode. See § 775.021(4)(b) . The courts’ exceptions for homicides, ... and theft, where the nature of the crime is often defined by degree of the violation, are consistent with the limited statutory exception. However, extension of this exception to multiple convictions for attempted first-degree murder, aggravated battery, and felony causing bodily injury would contravene the plain meaning ofsection 775.021 .
Although I concurred in the per curiam opinion in Gordon, I now conclude that
Further, the concern expressed in Gordon that the exception in subsection (4)(b)(2) must be limited so it will not swallow the rule in subsection (4)(b) is overstated. If convictions truly derive from different “core offenses” or “basic crimes,” dual convictions are authorized. See, e.g., Austin v. State, 852 So.2d 898, 901 (Fla. 5th DCA) (holding that aggravated battery and resisting an officer with violence grow out of different core crimes), review dismissed, 860 So.2d 976 (Fla.2003); Hale v. State, 838 So.2d 1185, 1189 (Fla. 5th DCA) (approving dual convictions because trafficking in stolen property has as its core a theft offense and receiving money from a pawnbroker by false verification of ownership has as its core violation of the duty not to lie), review denied, 848 So.2d 1154 (Fla.2003). However, where the two convictions are for offenses that are merely aggravated forms of the same underlying offense, only a single conviction is proper under
Therefore, I conclude that Gordon‘s focus on whether convictions punish the same “primary evil,” 780 So.2d at 23, rather than on whether they constitute “degree variants of the core offense,” Sirmons, 634 So.2d at 154, was improper.4 The “primary evil” analysis applied in Gordon in lieu of determining whether the crimes had the same core offense reinvigorated a
The 1988 amendment to
Therefore, I conclude that the Court‘s double jeopardy analysis in Gordon is contrary to Sirmons and Anderson, and therefore a misapplication of
In an analysis pursuant to Sirmons, the core offense of aggravated battery is obviously battery, its core element. See State v. Reardon, 763 So.2d 418, 420 (Fla. 5th DCA 2000), review dismissed, 806 So.2d 446 (Fla.2002). Ascertaining the core offense of attempted second-degree murder is more difficult. A completed homicide is a core offense in itself. See Beltran, 700 So.2d at 135 (“As Justice Kogan noted in Sirmons, homicide is its own core offense.“). However, in my view, homicide is not the core offense for attempted homicide.5 This Court has consistently stated that degree variants are “aggravated forms” of the core or underlying offense.
I conclude that battery, in addition to being the core offense for aggravated battery, is also the core offense for attempted second-degree murder, regardless of whether the victim is struck or injured. As previously stated, a battery is an intentional, nonconsensual touching or striking. See
Consequently, attempted second-degree murder and aggravated battery are merely degree variants of the core offense of battery pursuant to
Finally, while not dispositive I find it noteworthy that the State agreed at sentencing that sentence could be withheld on the offense of aggravated battery on a law enforcement officer in count VI. Because the defendant is spending the rest of his life in prison for the crime of attempted second-degree murder with a firearm in count VII, the views in both the majority
Accordingly, I would recede from Gordon‘s holding that dual convictions of attempted first-degree murder and aggravated battery causing great bodily harm are permitted under
ANSTEAD, J., concurs.
QUINCE, J., dissenting.
I cannot agree that a defendant can be convicted of both attempted second-degree murder with a firearm and aggravated battery on a law enforcement officer for a single act of shooting at a police officer; therefore, I dissent. Under the facts and circumstances of this case, the aggravated battery is the same core offense as the attempted second-degree murder. See Sirmons v. State, 634 So.2d 153 (Fla.1994). As Chief Justice Pariente points out in her dissent, the defendant was charged with two forms of attempted first-degree murder: attempted first-degree murder of a law enforcement officer and attempted first-degree murder on the same victim and both from the same act of shooting at the victim. If the jury had returned guilty verdicts for each of these offenses, he could only have been convicted and sentenced on one of the offenses. The fact that the jury chose to convict on lesser included offenses should not change the result.
PARIENTE, C.J., and ANSTEAD, J., concur.