Borges v. State

Decision Date08 April 1982
Docket NumberNo. 60381,60381
PartiesRoy A. BORGES, Petitioner, v. STATE of Florida, Respondent.
CourtFlorida Supreme Court

Page 1265

415 So.2d 1265
Roy A. BORGES, Petitioner,
STATE of Florida, Respondent.
No. 60381.
Supreme Court of Florida.
April 8, 1982.
Rehearing Denied July 20, 1982.

Richard L. Jorandby, Public Defender and Tatjana Ostapoff, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for petitioner.

Jim Smith, Atty. Gen., and Mark Horn and Sharon Lee Stedman, Asst. Attys. Gen., West Palm Beach, for respondent.

Page 1266

BOYD, Justice.

This cause is before the Court on petition for review of a decision of a district court of appeal. The district court certified that its decision passed upon two questions of great public importance. Borges v. State, 394 So.2d 1046 (Fla. 4th DCA 1981). We have jurisdiction. Art. V, § 3(b)(4), Fla.Const.

Petitioner was convicted of burglary while armed with a dangerous weapon, possession of tools with intent to use them to commit burglary or trespass, possession of a firearm by a person convicted of a felony, and carrying a concealed firearm. * The trial court imposed a separate sentence of imprisonment for each offense, to be served consecutively. Petitioner appealed, contending that the single transaction rule and the Double Jeopardy Clause of the Fifth Amendment prohibit these multiple convictions and sentences. The district court affirmed on the authority of section 775.021(4), Florida Statutes (1977). The court certified the following questions as being of great public importance:

(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?

394 So.2d at 1049. We answer both questions in the affirmative and approve the decision of the district court.

Petitioner argues that his multiple convictions and sentences in this case violate the single transaction rule. In Florida, the "single transaction rule" finds its origin in Simmons v. State, 151 Fla. 778, 10 So.2d 436 (1942). It was there held that a person charged with several offenses arising from a single criminal transaction should only be convicted of the most serious offense charged. In Simmons the two offenses, arising out of a single episode, were assault with intent to rape and attempted carnal intercourse with an unmarried minor female. The rule has had a varied application, being grounded as it is in somewhat flexible notions of fairness. At times the courts have looked at the identity or discreteness of the criminal elements, at other times at the identity or discreteness of the evidentiary proof. See, e.g., Johnson v. State, 366 So.2d 418 (Fla.1978); State v. Heisterman, 343 So.2d 1272 (Fla.1977); State v. Ray, 331 So.2d 316 (Fla.1976); Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975); Estevez v. State, 313 So.2d 692 (Fla.1975); Foster v. State, 286 So.2d 549 (Fla.1973); Cone v. State, 285 So.2d 12 (Fla.1973); Williams v. State, 337 So.2d 1038 (Fla. 1st DCA 1976), aff'd, 346 So.2d 67 (Fla.1977); Swyers v. State, 334 So.2d 278 (Fla. 3d DCA 1976); Panzavecchia v. State, 311 So.2d 782 (Fla. 3d DCA 1975); Yost v. State, 243 So.2d 469 (Fla. 3d DCA 1971).

Section 775.021(4), Florida Statutes (1977), provides:

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...

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  • Lamont v. State
    • United States
    • Florida District Court of Appeals
    • February 18, 1992
    ...and punishments in derogation of the common law inheres solely in the democratic processes of the legislative branch. Borges v. State, 415 So.2d 1265, 1267 (Fla.1982); accord United States v. L. Cohen Grocery Co., 255 U.S. 81, 87-93, 41 S.Ct. 298, 299-301, 65 L.Ed. 516 (1921) (applying same......
  • Torrence v. State
    • United States
    • Florida District Court of Appeals
    • October 4, 1983
    ...firearm conviction involved the same crimes and the same acts, Torrence could not be convicted and sentenced for both. See Borges v. State, 415 So.2d 1265 (Fla.1982); see also Bell v. State, 437 So.2d 1057 (Fla. 1983); State v. Gibson, Case No. 61,375 (Fla. February 10, 1983) [8 FLW 76]; Bu......
  • Carawan v. State
    • United States
    • Florida Supreme Court
    • September 3, 1987
    ...that the power to define crimes and punishments in derogation of the common law inheres in the legislative branch, Borges v. State, 415 So.2d 1265, 1267 (Fla.1982); Wilson v. State, 225 So.2d 321, 323 (Fla.1969), rev'd on other grounds, 403 U.S. 947, 91 S.Ct. 2286, 29 L.Ed.2d 858 (1971), su......
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    • Florida District Court of Appeals
    • December 15, 1983
    ...OF TWO STATUTORY OFFENSES TO DETERMINE SUBSTANTIVE DIFFERENCE OR SAMENESS. The abstract principle of law applied in Borges v. State, 415 So.2d 1265 (Fla.1982), If two statutory offenses do not have the exact same essential constituent elements and neither statutory offense includes all of t......
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