Bradley v. State, 88-560
| Decision Date | 16 March 1989 |
| Docket Number | No. 88-560,88-560 |
| Parties | 14 Fla. L. Weekly 701 Stephen William BRADLEY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Daniel J. Schafer, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
A tenant discovered the defendant 1 burglarizing the tenant's apartment. The defendant fled out of the apartment. The tenant chased and caught the defendant who struggled and hit the tenant in the face. On these facts, the defendant was tried, convicted and sentenced for two offenses: burglary with a battery (§ 810.02(2)(a), Fla.Stat.) and battery (§ 784.03, Fla.Stat.). In each count the battery alleged was the one that occurred when the defendant hit the tenant in the face. The defendant appeals, arguing that he has been convicted twice for "the same offense" in violation of his rights under the double jeopardy clauses of the state and federal constitutions.
Burglary is a first degree felony if "in the course of committing" the burglary offense, the offender commits a battery upon any person. § 810.02(2)(a), Fla.Stat. Section 810.011(4) provides that an act (such as a battery) is committed "in the course of committing" if the act occurs during flight after the commission of the basic (burglary) offense.
In any logical scheme classifying crimes, the offense known as battery would be shown as some one degree of one basic substantive crime, the object of which would be to prohibit one person from injuring or threatening or attempting to injure or kill another person. This basic substantive crime against harming others would probably include all statutory crimes (see Chapters 782 and 784, Florida Statutes), now known as assault, aggravated assault, battery, aggravated battery, injury by culpable negligence, and all homicides and attempts relating thereto. On the other hand, in any such classification, the offense of burglary would be included within some other basic substantive crime, the object of which would be the protection of the security of structures and objects of conveyance.
Apparently, the legislature saw fit to make the offense of burglary punishable on three different levels (first, second and third degree felonies punishable under section 775.082(3)(b), (c) and (d), Florida Statutes, by terms of imprisonment not exceeding 30 years, 15 years, and 5 years) depending on facts relating to whether the offender harmed someone, on whether the offender was armed and likely to harm someone, and whether the protected structure contained or was likely to contain a human being who might be harmed. These are logical and legal distinctions to be made within the legislative prerogative. Basically there are two methods by which the legislature could have done this. One is to make burglary one substantive offense but to provide for that one offense a schedule of varying punishments depending on the presence or absence of the desired differentiating factors. 2 The other method, and one used in the burglary statute section 810.02, is to make the differentiating factors upon which the different punishment is to depend, into degree elements 3 differentiating the one basic substantive burglary offense into three separate statutory offenses, each of which authorizes a different degree or level of punishment. This second method poses no particular problem when the differentiating factor is not itself a separate criminal offense or an essential element of some other charged offense. However, when the factor which serves to differentiate punishment is made into a degree element of the basic substantive offense is itself a separate independent offense (such as battery, in this case) or is an essential element of some other charged offense, a serious legal problem results in that the underlying or primary substantive offense (burglary, in this case) has been made to include within itself (that is, to encompass, to embody, to subsume) the independent secondary offense (battery, here), or some essential element of it, which necessarily means that every trial and conviction of the primary offense includes a trial and conviction of the ancillary incorporated offense (or element of it), and, when both offenses relate to one and the same factual event 4 (striking the tenant in the face, in this case), a defendant cannot be tried or convicted (whether in one or two trial settings) for both the primary offense (the burglary with a battery, in this case), and the ancillary incorporated offense (the battery, here) without being tried or convicted twice for "the same offense" in violation of the defendant's constitutional double jeopardy rights. This case is but one example of the true double jeopardy "identity of offense" problem considered in Carawan v. State, 515 So.2d 161 (Fla.1987), and a long list of preceding cases. Spradley v. State, 537 So.2d 1058 (Fla. 1st DCA 1989), holds that c nvictions of both burglary with a battery and a simple battery as to a single factual event violate the constitutional double jeopardy clause. See also, McPhee v. State, 537 So.2d 698 (Fla. 4th DCA 1989).
The offense carrying the greater potential punishment, being the...
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