Boler v. State

• Citation: 678 So.2d 319
• Decision Date: 11 July 1996
• Docket Number: No. 85623,85623
• Parties: 21 Fla. L. Weekly S307 Afghari BOLER, et al., Appellants, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

Page 319

678 So.2d 319

21 Fla. L. Weekly S307

Afghari BOLER, et al., Appellants, v. STATE of Florida, Appellee.

No. 85623.

Supreme Court of Florida.

July 11, 1996.

James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, for Appellants.

Robert A. Butterworth, Attorney General; and Kellie A. Nielan and Belle B. Turner, Assistant Attorneys General, Daytona Beach, for Appellee.

HARDING, Justice.

We have for review the judgments of two trial courts which the Fifth District Court of Appeal certified as being of great public importance and requiring immediate resolution by this Court. ¹ Although the district court stated that it passed through the two cases pursuant to article V, section 3(b)(4), pass through jurisdiction is actually contained in article V, section 3(b)(5) of the Florida Constitution, and we accept jurisdiction on that basis. ²

This case originated as two separate cases that were consolidated by the district court. Boler v. State, 654 So.2d 603, 604 (Fla. 5th DCA 1995). Afghari Boler was convicted of first-degree felony murder and robbery for killing a convenience store clerk during an armed robbery. Boler was sentenced to life imprisonment for the murder and a consecutive life sentence for the robbery, which included a three-year minimum mandatory sentence for the use of a firearm. Boler v. State, No.93 -1622 at 1 (Fla. 5th DCA Apr. 26, 1995) (unpublished panel opinion). Sonny Boy Oats, III, was convicted of third-degree felony murder and grand theft for an incident where he grabbed the purse of an elderly disabled woman. A bystander suffered cardiac arrhythmia while pursuing Oats in an attempt to recover the purse; the pursuer subsequently died. Oats v. State, No. 93-2092 at 1, 8-9 (Fla. 5th DCA Apr. 26, 1995) (unpublished panel opinion). On appeal to the Fifth District Court of Appeal, Boler and Oats each argued that his dual convictions violated the constitutional guarantee against double jeopardy. A three-judge panel of the district court reversed Boler's conviction and sentence on the robbery count, based upon a double jeopardy violation. Boler, unpublished op. at 8. A different district court panel found no double jeopardy violation and affirmed Oats' convictions. Oats, unpublishedop. at 1-8.

Because the two cases involved a common double jeopardy issue, the district court consolidated the cases for en banc resolution of the conflicting double jeopardy rulings. Boler, 654 So.2d at 604. However, the district court divided four to four ³ and was unable to resolve the conflict between the two panel decisions. Id. Instead, the court passed through the issue as one of great public importance to this Court. Id.

In State v. Enmund, 476 So.2d 165, 167 (Fla.1985), this Court held that the underlying felony is not a necessarily included offense of felony murder. Thus, "a defendant can be convicted of and sentenced for both felony murder and the underlying felony." Id. at 168. The district court essentially asks us to determine whether that holding is still valid in light of the United States Supreme Court's recent decision in United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993).

Dixon involved two individuals who were tried for criminal contempt of court for violating court orders prohibiting them from engaging in conduct that was later the subject of a criminal prosecution. Id. at 691-92, 113 S.Ct. at 2853-54. The Supreme Court was asked to determine whether such subsequent criminal prosecutions were barred by the Double Jeopardy Clause. Id. Only Parts I, II, and IV of the Dixon opinion garnered a majority vote, with the Court fragmenting as to the remaining issues. However, in Part IV a majority of the Supreme Court rejected any distinction between the meaning of "same offence" in the context of multiple punishments as opposed to the context of multiple prosecutions. "[I]t is embarrassing to assert that the single term 'same offence' ... has two different meanings," one for successive prosecution cases and another for successive punishment cases. Id. at 704, 113 S.Ct. at 2860 (Justice Scalia writing for the Court in the context of rebutting Justice Souter's dissenting opinion that there are two different strands of double jeopardy analysis). The majority also overruled the Grady "same-conduct" test, ⁴ finding it "wholly inconsistent with earlier Supreme Court precedent and with the clear common-law understanding of double jeopardy." Dixon, 509 U.S. at 704, 113 S.Ct. at 2860.

Thus, Dixon leaves intact only one analysis for determining whether a successive prosecution or a successive punishment is prohibited by the Double Jeopardy Clause: the Blockburger ⁵ "same-elements" test. This test inquires whether each offense contains an element not contained in the other; if not, they are the same offense and double jeopardy bars subsequent punishment or prosecution. Blockburger, 284 U.S. at 304, 52 S.Ct. at 182; Dixon, 509 U.S. at 696-97, 113 S.Ct. at 2856. However, as the Supreme Court explained in Albernaz v. United States, 450 U.S. 333, 340, 101 S.Ct. 1137, 1143, 67 L.Ed.2d 275 (1981), "[t]he Blockburger test is a 'rule of statutory construction,' and because it serves as a means of discerning congressional purpose the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent."

This Court has also explained that legislative intent is the dispositive question in determining whether double jeopardy bars separate convictions and sentences for offenses arising from a single episode. State v. Smith, 547 So.2d 613, 614 (Fla.1989). " '[T]he Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.' " Id. (quoting Missouri v Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983)).

In Enmund, we found "sufficient intent that the legislature intended multiple punishments when both a murder and a felony occur during a single criminal episode." 476 So.2d at 167. Accordingly, we concluded that Enmund could be convicted of and sentenced for both felony murder and the underlying felony of robbery. Id. at 168. We have consistently adhered to that position. See, e.g., Cardona v. State, 641 So.2d 361, 364 n. 2 (Fla.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1122, 130 L.Ed.2d 1085 (1995); Valdes v. State, 626 So.2d 1316, 1322 n. 8 (Fla.1993), cert. denied, 512 U.S. 1227, 114 S.Ct. 2725, 129 L.Ed.2d 849 (1994).

The appellants argue that the 1988 amendment to the rules of construction in section 775.021(4), Florida Statutes (1991), requires this Court to recede from Enmund. See ch. 88-131, § 7, at 709-10, Laws of Fla. (stating a legislative intent "to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction"). As we explained in Smith, the 1988 amendment of section 775.021(4) was intended to override our previous decision in Carawan. ⁶ 547 So.2d at 614-16. Nothing in the 1988 amendment changes the conclusion that we reached in Enmund, namely that "the legislature intended multiple punishments when both a murder and a felony occur during a single criminal episode." 476 So.2d at 167.

For the reasons discussed above, we conclude that neither Dixon nor section 775.021(4) prohibits a Florida defendant from being separately convicted and sentenced for felony murder and the qualifying felony. Thus, we affirm the trial courts' judgments adjudicating Boler and Oats guilty of both felony murder and the qualifying felony and imposing sentences for both offenses.

Boler raises an additional issue relating to the mandatory minimum sentences imposed in his case. Boler was sentenced to life imprisonment with a mandatory minimum sentence of twenty-five years for first-degree murder. ⁷ His consecutive life sentence for robbery included a three-year minimum mandatory term for use of a firearm. ⁸ Boler contends that these mandatory minimum sentences may not be imposed consecutively.

We have held that enhancement sentences arising out of a single criminal episode may not be imposed consecutively. Jackson v. State, 659 So.2d 1060 (Fla.1995) (prohibiting consecutive three-year minimum mandatory sentence for possession of a firearm and habitual offender minimum mandatory sentences); Hale v. State, 630 So.2d 521 (Fla.1993) (prohibiting consecutive habitual offender minimum mandatory sentences), cert. denied, --- U.S. ----, 115 S.Ct. 278, 130 L.Ed.2d 195 (1994). However, "we [have] distinguished statutory sentences in which the legislature ha[s] included a minimum mandatory sentence, such as the sentences for capital crimes, from sentences in which there is no minimum mandatory penalty although one may be provided as an enhancement through [another statute]." Hale, 630 So.2d at 524; accord Jackson, 659 So.2d at 1063. For example, in Enmund we approved consecutive twenty-five-year minimum mandatory sentences for two murders committed in the same criminal episode because we found legislative intent that the minimum mandatory time be imposed either consecutively or concurrently, in the trial court's discretion, for each and every homicide. 476 So.2d at 168.

In Boler's case, however, we are presented with a different question: whether a minimum mandatory sentence contained in an enhancement statute and a statutorily-required minimum mandatory sentence can be imposed consecutively. In our previous cases involving enhanced minimum mandatory sentences that were imposed consecutively, we were guided by the lack of specific legislative authorization in the enhancement statute. See, e.g., Hale, 630 So.2d at 525 (finding no such authorization in the habitual offender statute). In fact, in Palmer v. State, 438 So.2d 1, 3, 4 (Fla.1983), in considering the same enhancement statute at issue in this case, section 775.087, we found no express authority to...