Bell v. State, 62002

• Decision Date: 09 June 1983
• Docket Number: No. 62002,62002
• Citation: 437 So.2d 1057
• Parties: Johnny Lee BELL, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 1057

437 So.2d 1057

Johnny Lee BELL, Petitioner, v. STATE of Florida, Respondent.

No. 62002.

Supreme Court of Florida.

June 9, 1983.

Rehearing Denied Oct. 11, 1983.

James B. Gibson, Public Defender and Lynda Campbell, Asst. Public Defender, Seventh Judicial Circuit, Daytona Beach, for petitioner.

Jim Smith, Atty. Gen., and Evelyn D. Golden, Asst. Atty. Gen., Daytona Beach, for respondent.

ADKINS, Justice.

We have for review a decision of the District Court of Appeal, Fifth District, (Bell v. State, 411 So.2d 319 (Fla. 5th DCA 1982)), which expressly and directly conflicts with decisions of this Court in Borges v. State, 415 So.2d 1265 (Fla.1982), and State v. Hegstrom, 401 So.2d 1343 (Fla.1981). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Petitioner (hereinafter defendant) was charged by information with trafficking in illegal drugs, sale of a controlled substance, and possession of a controlled substance. He was convicted on all counts and sentenced to fifteen years on the trafficking count, ten years on the sale count, and five years on the possession count.

Defendant appealed the convictions and sentences and the Fifth District Court of Appeal affirmed the convictions and vacated the sentences for sale and possession of illegal drugs.

In the instant case, defendant was convicted of the greater offense of trafficking in illegal drugs as well as the lesser included offenses of sale and possession of a controlled substance. Defendant argues that the affirmance of his convictions on the lesser included offenses is in direct conflict with this Court's decision in Borges. We agree.

In Borges we held that the crimes for which Borges was convicted were separate and distinct and that none of the crimes was a lesser included offense of any of the others. Consequently, multiple convictions were appropriate in that case. Borges, 415 So.2d at 1267. We went on to hold that multiple sentencing for those convictions was proper given the legislative intent made manifest in section 775.021(4), Florida Statutes (1977).

The district court's reliance on State v. Hegstrom in affirming the convictions below is misplaced. We did not intend to hold in Hegstrom that the double jeopardy clause of amendment 5, United States Constitution, or article I, section 9, Florida Constitution, permits a defendant to be convicted of both a greater and a lesser included offense provided no sentence is imposed for the lesser included offense. As we have stated before, the explicit exclusion of lesser included offenses in section 775.021(4) makes clear that the legislature does not intend separate convictions and punishments for two or more statutorily defined offenses when in fact only one crime has been committed. Id. at 1267. We recede from State v. Monroe, 406 So.2d 1115 (Fla.1981), to the extent it is in conflict with this conclusion.

For double jeopardy purposes lesser included offenses are tantamount to the greater offense charged if all the constituent essential elements of such lesser offenses are included within the elements of such greater offense. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Conversely, offenses are separate and distinct if each contains an essential element that the other does not. This is a reciprocal rule; hence, the conclusion that lesser included offenses are not separate because they have no element that is not also necessarily a part of the proof of the greater offense. However, a mere recitation of the Blockburger rule for determining when offenses are distinct or "the same" cannot alone give guidance to the courts attempting to apply the rule.

Whether offenses are "the same" depends upon which offense-defining test is used to give teeth to the Blockburger rule.

In a pure sense of the definition, two offenses are "the same" if they are identical in law and fact. That is, that one statute has been violated once. Of course merely labeling statutes does not, and cannot, make offenses distinct when in fact they are identical. The legislature, even though it has the power to define offenses and punishments, is limited in that power. U.S. Const. amend. V; art. I, § 9, Fla. Const.

Under the required evidence, or statutory elements test, offenses are "the same" if elements constituent in one statute are sufficiently similar to elements of another. This test describes a labeling under different statutory sections of essentially the same crime. Such legislative legerdemain surely cannot be employed to contravene a constitutional right not to be twice placed in jeopardy for the same offense. See Stewart, J. in Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981).

Under the alleged evidence test, offenses are "the same" if there is sufficient similarity between allegations of two indictments or informations or even two counts within a single indictment or information. This test necessitates scrutiny of the charging instruments to determine if repetitious charges have been brought.

Finally, under the actual evidence or same evidence test, offenses are "the same" if there is sufficient similarity in the evidence actually presented either at two trials or among two or more counts in a single trial.

Courts have used varying combinations of the above tests justifying such practice on flexible notions of fairness or justice, but such an ad hoc approach to double jeopardy issues is unresponsive to the original policies to be protected.

At common law, the slightest variance between allegation and proof was fatal to the prosecution. It was a reaction to this pedantry of the pleading system that spawned the same evidence test. Thus, without legislative intent evidenced to the contrary, necessarily lesser included offenses could be prosecuted in subsequent prosecutions after a technical acquittal on the greater charge because proof of the lesser would not convict of the greater offense. (That is, the offenses were not "the same".) Conversely, collateral estoppel would bar reprosecution for the greater offense if there was an acquittal on a necessarily lesser included offense. Most importantly, however, was that a conviction of the greater offense barred reprosecution on any lesser included offenses.

Considering the above principles derived from the common law, and even being mindful of the policies underlying the prohibition against double jeopardy it is understandable why judges and commentators speak of double jeopardy primarily in the context of multiple prosecutions and separate proceedings. However, one must be careful to remember the fact that at the time the framers of the double jeopardy clause were writing, joinder of causes was impermissible, and therefore the only way a person could be punished multipliciously was out of multiple trials. Multiple trials would necessarily entail multiple judgments of conviction on which the multiple punishments would be based. Therefore, no mention was made in early cases or commentary concerning the evils of multiple convictions because to say no multiple punishments was in essence to say no multiple prosecutions and convictions for the same offense. Current case law and commentary seems to have lost sight of these original, valid policies in favor of blanket assertions of legal doctrine lacking in principle or...