Baker v. State, 80-748

• Decision Date: 08 December 1982
• Docket Number: No. 80-748,80-748
• Parties: Charles L. BAKER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 36

425 So.2d 36

Charles L. BAKER, Appellant, v. STATE of Florida, Appellee.

No. 80-748.

District Court of Appeal of Florida,

Fifth District.

Dec. 8, 1982.

Rehearing Denied Jan. 14, 1983.

James B. Gibson, Public Defender, Michael S. Becker and Thomas R. Mott, Asst. Public Defenders, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Daytona Beach, for appellee.

COBB, Judge.

The appellant was charged by indictment with first-degree premeditated murder and use of a firearm in the commission of a felony. His defense was insanity. He was tried, convicted and sentenced on both counts.

On appeal, we find no merit to appellant's argument in regard to the latitude allowed the state's expert witness, Dr. Carrera The appellant next contends that he cannot be convicted and sentenced for murdering his wife by shooting her with a gun, as was charged in the indictment, and also convicted and sentenced for using a firearm during the commission of the felony. He argues that the "use of a firearm" offense in the instant factual context was the same criminal act constituting the murder, and that Count II of the indictment represents a "category four" lesser included offense of Count I. Brown v. State, 206 So.2d 377 (Fla.1968). Based on the wording of the indictment counts, he is correct that Count II is a "category four" lesser included offense of Count I under the test of Brown. ¹ But it is not a lesser included offense according to the Schedule of Lesser Included Offenses set forth in the Florida Standard Jury Instructions in Criminal Cases (1981), either under Category 1 or Category 2 thereof.

in rendering opinion testimony relating to the defendant's motives for the shooting. Such was clearly relevant to the issue of insanity. Jones v. State, 332 So.2d 615 (Fla.1976).

In the case of State v. Hegstrom, 401 So.2d 1343 (Fla.1981), the Florida Supreme Court, based on its consideration of two recent decisions of the United States Supreme Court, ² receded from its holding in State v. Pinder, 375 So.2d 836 (Fla.1979). In Hegstrom it was held that the double jeopardy clause of the Fifth Amendment to the United States Constitution does not prohibit multiple convictions in a single trial setting (which is the instant case) for discrete crimes arising out of the same offense. ³ The Pinder decision had been predicated on two United States Supreme Court cases ⁴ involving cumulative punishments for the same offense in successive prosecutions.

Subsequent to Hegstrom, the Florida Supreme Court again addressed the double jeopardy issue in Carlson v. State, 405 So.2d 173 (Fla.1981), and reaffirmed their restrictive view of the scope of the protection afforded by the double jeopardy clause, relying on language from North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), wherein the United States Supreme Court wrote that the clause affords defendants three related protections:

It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.

Id. at 717, 89 S.Ct. at 2076. In Carlson, the Florida Supreme Court, applying the second of the guarantees enumerated in Pearce, held that a subsequent prosecution for the same offense, although under a different statute, was barred by the Blockburger test. See Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

In Blockburger, the defendant was convicted both of sale of morphine hydrochloride and, in regard to the same sale, with having sold the drug without a written order of the purchaser. He received separate sentences for these two convictions. He argued that this constituted but one offense for which only a single penalty could be imposed. In disposing of this point, the Court created what has become known as "the Blockburger test" in regard to double jeopardy with the following language:

Each of the offenses created requires proof of a different element. 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. Gavieres v. United States, 220 U.S. 338, 342, 31 S.Ct. 421 , 55 L.Ed. 489, and authorities cited. In that case this court quoted from and adopted the language of the Supreme Court of Massachusetts in Morey v. Commonwealth, 108 Mass. 433: "A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other." Compare Albrecht v. United States, 273 U.S. 1, 11, 12, 47 S.Ct. 250 [253, 254], 71 L.Ed. 505, and cases there cited. Applying the test, we must conclude that here, although both sections were violated by the one sale, two offenses were committed.

52 S.Ct. at 182.

In Hegstrom the Florida Supreme court stated that its sole inquiry was to determine what punishment the Florida Legislature authorized for a single criminal transaction involving two or more separate, statutory offenses. The applicable statute, which abolished the "single transaction" rule, is section 775.021(4), Florida Statutes (1977), which became effective October 1, 1976. It reads:

Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively.

The Florida Supreme Court concluded that under its construction of the statute, Hegstrom, who had been convicted of both first-degree felony murder and the underlying felony of robbery, could not be sentenced both for felony murder and the underlying felony. But it also concluded that nothing in Blockburger or the Florida statute precluded multiple convictions for lesser included offenses. ⁵ Consequently, it affirmed Hegstrom's robbery conviction but vacated his separate sentence for robbery. Hegstrom dealt with a necessarily lesser included offense.

In State v. Monroe, 406 So.2d 1115 (Fla.1981), the Florida Supreme Court, expressly reaffirming Hegstrom, held that, although section 775.021(4), Florida Statutes, precludes multiple sentences for lesser included offenses, multiple convictions for lesser included offenses are not barred by either the state or federal constitution. In that case Monroe had been convicted and sentenced for both robbery with a firearm and unlawful possession of a firearm while committing a felony, the latter being a necessarily lesser included offense. The Florida Supreme Court affirmed both convictions but reversed the sentence for the lesser included offense. The Hegstrom case was again In Borges v. State, 415 So.2d 1265 (Fla.1982), the Florida Supreme Court rejected the argument that the determination of a lesser included offense, from a constitutional consideration, should focus on "the variables of evidentiary proof." Citing Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), which contains the federal constitutional double jeopardy standard, the Borges court explained the constitutional test for a lesser included offense:

reaffirmed in State v. Thompson, 413 So.2d 757 (Fla.1982).

A less serious offense is included in a more serious one if all of the elements required to be proven to establish the former are also required to be proven, along with more, to establish the latter. (Emphasis in original.)

The Florida Supreme Court has held that Article I, Section 9 of the Florida Constitution is to be construed and applied in the same manner as the United States Supreme Court applied the Fifth Amendment to the United States Constitution in Albernaz. State v. Cantrell, 417 So.2d 260 (Fla.1982).

In the present case, the two crimes with which Baker was charged were (1) premeditated murder, and (2) use of a firearm in the commission of a felony. The elements of first-degree murder relevant to the present case, as defined in section 782.04(1)(a), Florida Statutes (1981), are:

(i) the unlawful

(ii) killing

(iii) of a human being

(iv) when perpetrated from a premeditated design to effect the death of the person killed (or any other human being).

In relevant part, section 790.07(2), Florida Statutes (1981), the second statutory offense for which Baker was convicted, defines the elements of that offense as:

(i) displaying, using, threatening to use or attempting to use a firearm

(ii) while committing or attempting to commit any felony.

Using the Borges-Blockburger test, it is clear that the statutory elements of the two crimes for which Baker was convicted are not the same, nor are the statutory elements of one lesser constitutent elements of the other. Under Borges as well as federal constitutional law, no constitutional prohibition prevents multiple convictions (and sentences) herein.

The question, then, is whether or not there is a statutory bar under section 775.021(4). That statute, in its reference to "lesser included offenses," draws no distinction between necessarily included offenses and Brown "category four" included offenses--i.e., offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence. The statutory provision was enacted some eight years after the Brown decision, and therefore it is presumed that the Florida Legislature acted with cognizance of the Supreme Court's dual categorization of (necessarily and...