Borges v. State

• Decision Date: 18 February 1981
• Docket Number: No. 78-2249,78-2249
• Parties: Roy Anthony BORGES, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1046

394 So.2d 1046

Roy Anthony BORGES, Appellant, v. STATE of Florida, Appellee.

No. 78-2249.

District Court of Appeal of Florida, Fourth District.

Feb. 18, 1981.

Rehearing Denied April 1, 1981.

Richard L. Jorandby, Public Defender, Tatjana Ostapoff, Asst. Public Defender and Bruce A. Zeidel, West Palm Beach, as amicus curiae, and Roy Anthony Borges, in pro. per.

Jim Smith, Atty. Gen., Tallahassee and Russell S. Bohn and Mark Horn, Asst. Attys. Gen., West Palm Beach, for appellee.

LETTS, Chief Judge.

The Appellant was convicted of and sentenced to, over forty years imprisonment for four separate offenses, to wit: burglary with a dangerous weapon, possession of burglary tools, carrying a concealed firearm and possession of a firearm by a felon. He appeals claiming that the single transaction rule and Double Jeopardy prohibit these multiple sentences and convictions. We affirm.

We commence by noting that the instant information was most subtly drawn by one fully cognizant of all the nuances of Brown v. State, 206 So.2d 377 (Fla.1968).

Addressing ourselves initially to the question of whether there can be separate sentences imposed for burglary and possession of burglary tools, we are of the opinion that the two are distinct and separate crimes for which two convictions and two sentences are proper. See D'Agostino v. State, 334 So.2d 99 (Fla. 3d DCA 1976). Section 810.06 of the Florida Statutes (1979) defines the separate crime of possession of burglary tools and only requires possession of such tools with intent to use the same to commit a burglary. The language is quite clear that the crime is complete if the possession and intent can be proved and there need never be an actual burglary or even an attempt to burgle.

On the other hand, it is not necessary to possess any burglary tools to commit an actual burglary. All that is required is an entering or remaining on nonpublic premises without permission and with intent to commit an offense. Thus it is that in the count of the information now before us charging burglary with a dangerous weapon, there is no mention whatever of burglary tools. Likewise in the count on unlawful possession of burglary tools with intent to use the same, there is no mention of either an actual burglary or an attempted burglary.

Applying all of the foregoing to the four Brown categories on lesser included offenses, we do not find in the case at bar:

1. Any crime divisible into degrees.

2. Any attempt to commit offenses.

3. Any offense necessarily included in the offense charged.

Thus the only applicable possibility involves an offense which may or may not be included depending on the accusatory pleading and the evidence. As the Supreme Court said about this fourth category in Brown :

"... The trial judge must examine the information to determine whether it alleges all of the elements of a lesser offense ...." Id. 206 So.2d at 383.

We have done that here and determine that no allegation of possession of burglary tools is found in the count charging burglary and no allegation of any of the elements of burglary exist in the count charging the appellant with possession of burglary tools. Thus we conclude the conviction and sentencing on both charges were proper.

Without repetition in laborious detail, we can apply the same logic to the crime of carrying a concealed weapon. The charge in that count makes no reference to possession of burglary tools nor any whatever to a burglary with a weapon. Neither does it make reference to possession by a convicted felon. Obviously we do not need a felon, burglary tools, a burglary or an attempt to burgle to complete the crime of carrying a concealed weapon. The crime is complete if any one of us, including all law abiding citizens, carries a concealed firearm, unless we qualify under the exceptions set forth in subsections (3) and (4) of Section 790.01, Florida Statutes (1979).

Furthermore, as to the count on possession of a firearm by a convicted felon, appropriate language as to that, is all that is in the charge. There is no reference to burglaries, burglary tools or concealed weapons with the lone exception of the necessary language detailing a previous conviction for breaking and entering with intent to commit grand larceny.

Finally, it is true that the burglary here charged was one carried out with a dangerous weapon, but that count did not set forth that the burglar was a convicted felon nor did it suggest that the weapon used was concealed.

As to the single transaction rule, we are not unaware of our own decision in Bruton v. State, 326 So.2d 186 (Fla. 4th DCA 1975) in which we sua sponte raised and held the possession of burglary tools and the attempted breaking and entering of an automobile to involve a facet or phase of the same criminal transaction for which only one sentence could be imposed. However, the principal case relied on for that conclusion, Kirkland v. State, 299 So.2d 54 (Fla. 1st DCA 1974), was reversed by the Supreme Court in State v. Kirkland, 322 So.2d 480 (Fla.1975); also see Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975). We are equally cognizant of our recent holding in Haynes v. State, 377 So.2d 771 (Fla. 4th DCA 1979). However, Haynes hinged on a finding of a Brown category four, not an application of the single transaction rule.

After the rendering of most of the above cited cases, Florida enacted Section 775.021(4) effective October of 1976 which reads as follows:

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. ¹

According to the appellant this statute not only abrogates the single transaction rule, but flies in the face of the Double Jeopardy clause of the Fifth Amendment. Whatever our thoughts on this might have been, such a statute appears to have received a blessing from the Supreme Court of the United States in an opinion issued after the appellant's brief was filed. See Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). Also see Fundak v. State, 362 So.2d 295 (Fla. 2d DCA 1978). However, our own Supreme Court very recently decided in White v. State, 377 So.2d 1149 (Fla.1979) that one convicted of robbery and the display of a firearm during the commission of that same robbery cannot be sentenced for both crimes. The opinion makes no mention whatever of Section 775.021(4), but we have independently determined that the record lodged in our Supreme Court reveals that the robbery in White was committed on December 7, 1974, before the statute was enacted. Nor does the White opinion reveal what wording was used in the accusatory pleading but it seems to us that the accusatory pleading would almost certainly activate a Brown category four lesser included offense. ² Despite this available distinction, the White decision chooses as the premise for its conclusion not a Brown category lesser included offense but two prior cases decided before the advent of Section 775.021(4) which are predicated on the single transaction rule. This troubles us.

Accordingly, deeming the matter to be of great public importance we hereby certify the following questions to the Supreme Court,

(1) HAS THE ADVENT OF FLORIDA STATUTE 775.021(4) DONE AWAY WITH THE SINGLE TRANSACTION RULE?

(2) IS CATEGORY 4 OF BROWN V. STATE, 206 So.2d 377 (Fla.1968), ADEQUATE TO SAFEGUARD A DEFENDANT'S RIGHT NOT TO BE SUBJECT TO DOUBLE JEOPARDY?

ALL FOUR CONVICTIONS AND SENTENCES ARE AFFIRMED.

BERANEK and HURLEY, JJ., concur specially with opinion.

HURLEY, Judge, specially concurring.

I concur in the analysis and decision of the court, but write separately to express the view that (1), with the enactment of Section 775.021(4), Florida Statutes (1977), the single transaction rule is no longer extant in Florida, and (2), the definition of a lesser included offense as set forth in category 4 of Brown v. State, 206 So.2d 377 (Fla.1968), is subject to such capricious application as to be inadequate to satisfy the demands of the Double Jeopardy Clause.

I

The single transaction rule is a court-formulated rule of limitation. It first appeared in Simmons v. State, 151 Fla. 778, 10 So.2d 436 (1942), a case which seemed to rely on fundamental fairness and which held that there could be but one sentence for the highest offense charged when multiple counts of an information charged different aspects of the same criminal transaction. Thus emerged a rule which is deceptively simple to state but which has virtual kaleidoscopic application. It must be noted, however, that when the court decided Simmons, the Florida Legislature had not definitively expressed itself on the subject of cumulative punishments for the violation of different statutes during a single criminal episode.

The absence of clear legislative direction was critical to the decision in Simmons. Without a contrary indication, the rule of lenity presumes that the legislative branch "does not intend to punish the same offense under two different statutes." Whalen v. United States, 445 U.S. 684, 691, 100 S.Ct. 1432, 1438, 63 L.Ed.2d 715 (1980). Thus, the court in Simmons properly employed a long-standing rule of statutory construction and crafted the single transaction rule.

The legislative landscape was dramatically altered, however, on October 1, 1976 and again with minor revision on August 2, 1977, when the Florida Legislature enacted Section 775.021(4), Florida Statutes (1977), which states:

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...