Wilcott v. StateWilcott v. State
We have for review Wilcott v. State, 472 So.2d 1389 (Fla. 1st DCA 1985), which expressly and directly conflicts with State v. Wimberly, 498 So.2d 929 (Fla. 1986). This Court has jurisdiction pursuant to
Wilcott, an inmate at the Marianna Community Correctional Center, participated in an outside work program. On July 20, 1984, while checking inventory at his work-place, Wilcott apparently discovered a small bag containing approximately 2.3 grams of cannabis. According to Wilcott‘s testimony, he stuck the bag down his pants with the intention of later hiding the narcotic somewhere at the worksite where he could use the drug at a future date. Before he could do so, however, an officer from the Marianna center came to pick him up and return him to the correction facility. Upon his return to the center, the officer searched Wilcott and found the cannabis in his underwear. The state subsequently charged Wilcott by information with unlawfully introducing or possessing contraband upon the grounds of a state correctional institution in violation of
On appeal Wilcott argued that the trial court committed error by denying the requested instruction. Wilcott pointed to two Second District Court of Appeal decisions that found possession of marijuana, a violation of
(1)(a) Except through regular channels as authorized by the officer in charge of the correctional institution, it is unlawful to introduce into or upon the grounds of any state correctional institution, or to take or attempt to take or send therefrom, any of the following articles which are hereby declared to be contraband for the purposes of this section, to wit:
.....
4. Any narcotic, hypnotic, or excitative drug or any drug of whatever kind or nature including, but not limited to, ... a controlled substance as defined in
s. 893.02(3) ......
(c) It is unlawful for any inmate of any state correctional institution or any person while upon the grounds of any state correctional institution to be in actual or constructive possession of any article or thing declared by this section to be contraband, except as authorized by the officer in charge of such correctional institution.
Accordingly, we quash the decision of the district court and remand for further proceedings consistent with this opinion.
It is so ordered.
OVERTON, EHRLICH and BARKETT, JJ., and ADKINS, J. (Ret.), concur.
SHAW, J., dissents with an opinion.
SHAW, Justice, dissenting.
The majority‘s reliance on the accusatory pleadings and the evidence at trial to determine whether an offense is a lesser included offense of another is directly contrary to
The wisdom of using only the statutory elements to determine whether offenses are separate or lesser included can be seen by examining the contradictions which occur when the accusatory pleadings and proof at trial are also used. Permissive lesser included offenses were established by Brown v. State, 206 So.2d 377, 383 (Fla. 1968), as category four offenses. They were incorporated into our schedule of lesser included offenses as category two offenses when we promulgated the 1981 edition of Florida Standard Jury Instructions in Criminal Cases.1 Unlike necessarily lesser included offenses, the statutory elements of permissive lesser included offenses are not subsumed within the statutory elements of charged greater offenses; if they are subsumed, the offenses are necessarily included, not permissively included. Brown. Thus, by definition, they are separate offenses from those charged and are subject to separate convictions and separate sentences.
There are three constitutional imperatives which govern jury instructions on criminal offenses. The first is that it is the legislature, not the courts, which establishes and defines offenses and their relationship to each other. The legislature does so by defining the statutory elements of each criminal offense. The statutory elements of any two offenses determine whether one of the offenses is either a separate or a lesser included offense of the other. The legislature has unequivocally decreed that each separate criminal offense will be subject to separate convictions and separate sentences. Moreover, the legislature has specifically prescribed the method of determining whether any two criminal offenses are separate:
[O]ffenses 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.
There are only two mutually exclusive categories into which any two given offenses may be placed under
The second constitutional imperative governing jury instructions on lesser included offenses is the due process requirement that before the trial begins the defendant be placed on notice of the specific charges upon which he can be convicted. It is constitutionally permissible to convict a defendant of a necessarily lesser included offense because the statutory elements of the necessarily lesser included offense are subsumed within the statutory elements of the charged (greater) offense and the defendant is thus notified before the trial begins that he stands in jeopardy of being convicted of the lesser offense. However, because permissive lesser included offenses are not necessarily included in the charged offense, the defendant does not receive notice of jeopardy until after the evidence is presented and the court gives the jury its final instructions. Contrary to the usual rule that jeopardy attaches when the jury is sworn, jeopardy on permissive lesser included offenses does not attach until after the evidence has been introduced and the jury receives its final instructions just prior to deliberations. Thus, the defendant has no opportunity to prepare and offer defenses aimed specifically at the new and separate charges flowing from the evidence. The United States Supreme Court has stated:
No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal. In re Oliver, 333 U.S. 257, 68 S.Ct. 499, [92 L.Ed. 682 (1948)] and cases there cited... . It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made. De Jonge v. State of Oregon, 299 U.S. 353, 362, 57 S.Ct. 255, 259 82 L.Ed. 278 [(1937)].
Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948). We have similarly held, based on the Florida Constitution:
The constitution (Declaration of Rights, § 11), guarantees to every accused person ... the right to know “the nature and cause of the accusation against him,” and it necessarily follows that the accused cannot be indicted for one offense and convicted and sentenced for another, even though the offenses are closely related and of the same general nature or character and punishable by the same grade of punishment.
The third constitutional imperative is that the state is entitled to select the criminal charges it will bring. Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984).4 The state exercises its prerogative by information or indictment which notifies the defendant of the specific statutes he is charged with violating. This charge includes the greater cited offense and all necessarily included offenses as defined by
We recently addressed this issue in the context of Florida‘s death penalty statute. In State v. Bloom, 497 So.2d 2, 3 (Fla. 1986), the trial judge ruled prior to trial that the state could not seek the death penalty on a particular first-degree murder charge. We granted the state‘s petition for a writ of prohibition:
A writ of prohibition is the appropriate remedy when a trial court attempts to interfere with the prosecutorial discretion of a state attorney. See Cleveland v. State, 417 So.2d 653 (Fla. 1982). Under Florida‘s constitution, the decision to charge and prosecute is an executive responsibility, and the state attorney has complete discretion in deciding whether and how to prosecute.
Art. II, § 3, Fla. Const. ; Cleveland; State v. Cain, 381 So.2d 1361 (Fla. 1980); Johnson v. State, 314 So.2d 573 (Fla. 1975). In State v. Jogan, 388 So.2d 322 (Fla. 3d DCA 1980), the Third District Court reversed a trial court‘s dismissal of an information against a defendant conditioned on his military enlistment. The district court held that the pre-trial decision to prosecute or nol-pros is a responsibility vested solely in the state attorney. While recognizing a court‘s latitude and discretion during post-trial disposition, Jogan reiterated the state has absolute discretion at pre-trial. In considering similar circumstances, federal courts have held:[T]he decision of whether or not to prosecute in any given instance must be left to the discretion of the prosecutor. This discretion has been curbed by the judiciary only in those instances where impermissible motives may be attributed to the prosecution, such as bad faith, race, religion, or a desire to prevent the exercise of the defendant‘s constitutional rights.
United States v. Smith, 523 F.2d 771, 782 (5th Cir. 1975), cert. denied, 429 U.S. 817, 97 S.Ct. 59, 50 L.Ed.2d 76 (1976) (citations omitted). We apply these principles and hold that article II, section 3 of the Florida Constitution prohibits the judiciary from interfering with this kind of discretionary executive function of a prosecutor.
Id. (emphasis supplied). Accord State v. Donner, 500 So.2d 532 (Fla. 1987).
Aside from the constitutional infirmities of permissive lesser included offenses, they also suffer conceptually. The basic flaw is
The confusion surrounding permissive lesser included offenses is illustrated by our inclusion of “attempts” as a permissive lesser included offense and the contradiction between subsections (a) and (b) of
The illogical results that flow from Brown and its progeny are illustrated by Pendleton v. State, 493 So.2d 1111 (Fla. 1st DCA 1986). In Pendleton, the victim died of two gunshot wounds to the head from his own gun. The defendant stole the victim‘s vehicle and fled to California where he pawned the weapon and attempted to sell the victim‘s vehicle. The defendant took the stand and admitted killing the victim but pleaded self-defense. Thus, there was only one legitimate issue for the jury — self-defense. Nevertheless, despite the uncontroverted presence of the victim‘s corpse and the defendant‘s testimony that he killed the victim with gunshots to the head, the jury was irrationally, but correctly, instructed that it could return verdicts of guilty of the offense of aggravated battery and not guilty of murder, which it did. Thus, according to this Court‘s approved jury instructions, the victim was legally not murdered even though he died from an aggravated battery of two gunshots to the head administered by the defendant.5 I
As my dissent to Wimberly suggests, I can find no constitutional basis for the so-called jury pardon as applied by this Court. The constitutional right is to a jury trial, not a jury pardon. We have transformed the right to a jury trial into the right to receive irrational instructions. A jury which returns any verdict consistent with the instructions given to it by the trial court has not “pardoned” the defendant or violated its oath. From a constitutional viewpoint, there is not, and can never be, a jury pardon. The so-called jury pardon on which the Court here and in Wimberly bottoms its decisions is a red herring. The true issue is the responsibility of the courts to give juries instructions that make legal sense, and that, if followed, will result in a fair trial in which the defendant‘s due process rights are observed.
It is the responsibility of the courts to provide juries with rational instructions based on the law and the evidence and that responsibility cannot be avoided by attributing illogical and nonsensical verdicts to so-called jury pardons. This responsibility to instruct the jury that it cannot return a verdict on a lesser included offense does not infringe on the right to a jury trial. See Sparf v. United States, 156 U.S. 51, 103, 15 S.Ct. 273, 293, 39 L.Ed. 343 (1895):
To instruct the jury in a criminal case that the defendant cannot properly be convicted of a crime less than that charged, or to refuse to instruct them in respect to the lesser offenses that might, under some circumstances, be included in the one so charged — there being no evidence whatever upon which any verdict could be properly returned except one of guilty or one of not guilty of the particular offense charged — is not error; for the instructing or refusing to instruct, under the circumstances named, rests upon legal principles or presumptions which it is the province of the court to declare for the guidance of the jury. In the case supposed the court is as clearly in the exercise of its legitimate functions, as it is when ruling that particular evidence offered is not competent, or that evidence once admitted shall be stricken out and not be considered by the jury, or when it withdraws from the jury all proof of confessions by the accused upon the ground that such confessions, not having been made freely and voluntarily, are inadmissible under the law as evidence against the accused.
Id. See, also, the cases cited and discussed in my dissent to Wimberly.
In Wimberly we recognized the possibility that our rules and jury instructions on lesser included offenses might be faulty and in need of a rule change:
If there is to be a change in the intent and purpose of the rules concerning lesser included offenses, then it should be accomplished by a rule change, not by an interpretation of this Court.
Id., 498 So.2d at 932. The schedule of permissive lesser included offenses promulgated by this Court violates the plenary power of the legislative branch to define criminal offenses and to prescribe their punishment, the due process right of defendants to be placed on notice before the trial begins of the charges they will be tried on, and the exclusive power of the executive branch to select what criminal charges are to be brought. I do not agree that we should reaffirm our instructions on lesser included offenses when they are, in my opinion, demonstrably unconstitutional. We are dealing with an unconstitutional concept, not with a mere procedural flaw. I would immediately discontinue the use of permissively lesser included offenses and direct that the entire schedule of lesser included offenses (categories one and two) and