Akins v. State
| Decision Date | 06 December 1984 |
| Docket Number | No. 83-743,83-743 |
| Citation | 462 So.2d 1161 |
| Parties | Wayne L. AKINS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Appeal from Circuit Court, Marion County; Raymond T. McNeal, Jundge.
James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for appellee.
AFFIRMED.
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.
Principles:
(1) The double jeopardy clauses of the state 1 and federal 2 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 (§ 777.04(1), Fla.Stat. (1983)). This is because the "act" element of every attempt is the same and is vague by its very definition. That element is "any overt act" that is reasonably calculated to lead to the commission of the offense which is primarily intended to be committed. A completed offense can properly be said to have some element that the attempt to commit that same offense does not have but the converse is not true. It cannot be correctly stated that an attempt contains an essential constituent element that the completed offense does not require because the "overt act" required by an attempt may be one of the "act" elements in the completed offense or it may not. The aspect of an attempt offense relating to the fact that the attempt does not contain all of the elements of the completed crime (i.e., the absence of some element necessary to complete the crime intended) is not itself a negative "element" of the attempt offense. 5 Often the commission of one crime facilitates the accomplishment of another and the best method to commit one crime and to get away with it involves the commission of other, collateral, crimes. There are numerous common examples of this: the use of a weapon or firearm (§ 790.07(1) and (2), Fla.Stat. (1983)); the carrying of a concealed weapon (§ 790.01, Fla.Stat. (1983)), the commission of a burglary (§ 810.02, Fla.Stat. (1983), and the use of accessories after the fact (§ 777.03, Fla.Stat. (1983)), usually facilitate the commission of some other, more specifically intended, crime (such as murder, rape, robbery or theft), which latter crime usually carries a greater penalty than the "facilitating offense." Of course, sometimes the crime with the greater penalty occurs incidental to the commission of a more specifically intended crime which carries a lesser penalty, as when a felony murder (§ 782.04, Fla.Stat. (1983)) occurs during the perpetration, or in the attempt to perpetrate, the underlying, more specifically intended, felony. Neither the relative penalties nor the primary intent of the defendant determines the substantive relationship between two criminal offenses which is determined by their respective essential constituent elements.
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 (§ 790.07(2), Fla.Stat. (1983)) and the underlying felony upon which the use of firearm offense is based, see Bogard v. State, 451 So.2d 484 (Fla. 4th DCA 1984); Alvarez v. State, 445 So.2d 677 (Fla. 4th DCA 1984); Jackson v. State, 436 So.2d 1101 (Fla. 4th DCA 1983). But see State v. Baker, 456 So.2d 419 (Fla.1984); Gibson v. State, 452 So.2d 553 (Fla.1984); and the specially concurring opinion in O'Brien v. State, 454 So.2d 675 (Fla. 5th DCA 1984).
the two offenses 7 and the second step compares the factual bases for the two prosecutions. 8 However, the vague "any overt act" element of the offense of an attempt cannot, as a practical matter, be precisely compared for sameness or difference with elements of another offense. Therefore, when one offense is an attempt, meaningful analysis of the elements of the two offenses is thwarted and all that can be done is to go on to the second or factual test and determine if the facts that are being used to prove "the overt act" element in the attempt offense are the same facts that are used to prove the second offense. If both the attempt offense and the other offense are based on the same factual event, the two are, in substance, "the same offense" within the constitutional prohibition; otherwise, they are not. Here, the defendant was charged with attempted armed robbery as there was no taking of property because the victim had no purse and the defendant lost interest in taking the car keys when he learned the car was inoperative. However, the attempt to take was made by attempting to put the victim in fear in the classic manner 9--by threatening her life with a deadly weapon, which itself constituted the aggravated assault of which the defendant was convicted, as well as "the overt act" of the attempted armed robbery conviction. It is not "possible" to attempt to commit an armed robbery by threatening to do violence with a deadly weapon to a victim if he does not part with the possession of property in his possession without at the same time by the same act also committing an aggravated assault on that victim. Therefore, the two offenses are in law and in fact indistinguishable and it cannot be demonstrated that they are not "the same offense" within the constitutional double jeopardy prohibition. The result of an analysis of an attempt and some other offense will vary with the facts as it always does when compared offenses are in legal theory the same (because each offense does not have at least one element that the other offense does not have) and the second or factual step of the analysis depends on whether the two prosecutions are based on one or two separate and distinct factual events. If facts are such that after the occurrence of the facts constituting "the overt act" in an attempt to rob, the defendant commits further acts constituting a separate assault, aggravated assault or aggravated battery, etc., then it can be found that two separate and distinct factual events exist and supports two separate and distinct offenses and authorizes two convictions. 10 On the other hand, when one completed offense is itself "the overt act" in an attempt to commit another offense, then the attempt offense includes all of the essential constituent elements of the completed facilitating offense, both offenses are in legal substance and in fact "the same offense" and constitutional double jeopardy prohibits the conviction of both of such offenses. 11 The result is that constitutional
double jeopardy permits an accused to be convicted of a completed armed robbery and an aggravated assault based on a single factual event but, depending on the facts, may or may not permit conviction of an attempted armed robbery and a related aggravated assault
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...
To continue reading
Request your trial
-
Flarity v. State
...decision whatever may be the ultimate disposition. See, e.g., Gotthardt v. State, 475 So.2d 281 (Fla. 5th DCA 1985); Akins v. State, 462 So.2d 1161 (Fla. 5th DCA 1984).16 Flarity, 499 So.2d at 19. Our prior opinion became "the law of the case" and was binding on the trial court upon the pri......
-
Collins v. State
...So.2d 675 (Fla. 5th DCA), review denied, 461 So.2d 116 (Fla.1984); Morman v. State, 458 So.2d 88 (Fla. 5th DCA 1984); Akins v. State, 462 So.2d 1161 (Fla. 5th DCA 1984); Shaw v. State, 466 So.2d 1245 (Fla. 5th DCA 1985); Barnhill v. State, 471 So.2d 160 (Fla. 5th DCA 1985); Burke v. State, ......
-
Gotthardt v. State, 84-1584
...differentiated and, therefore, are "the same offense" for constitutional purposes. See, e.g., the separate opinions in Akins v. State, 462 So.2d 1161 (Fla. 5th DCA 1984), and Barnhill v. State, 471 So.2d 160 (Fla. 5th DCA 1985). Another example is when an assault or battery upon a law enfor......
-
Bell v. State
...assault while armed. Id. Instead, the principle upon which Bell relies was announced in a dissent by Judge Cowart in Akins v. State, 462 So.2d 1161, 1163 (Fla. 5th DCA 1984), as follows: It is not ‘possible’ to attempt to commit an armed robbery by threatening to do violence with a deadly w......