Bunkley v. State

• Citation: 833 So.2d 739
• Decision Date: 21 November 2002
• Docket Number: No. SC01-297.,SC01-297.
• Parties: Clyde Timothy BUNKLEY, Petitioner, v. STATE of Florida, Respondent.
• Court: United States State Supreme Court of Florida

833 So.2d 739

Clyde Timothy BUNKLEY, Petitioner, v. STATE of Florida, Respondent.

No. SC01-297.

Supreme Court of Florida.

November 21, 2002.

R. John Cole, II, Sarasota, FL, for Petitioner.

Richard E. Doran, Attorney General, Robert J. Krauss, Senior Assistant Attorney General, Chief of Criminal Law, and Ronald Napolitano, Assistant Attorney General, Tampa, FL, for Respondent.

SHAW, J.

We have for review Bunkley v. State, 768 So.2d 510 (Fla. 2d DCA 2000), wherein the district court certified the following question:

Should the decision in L.B. v. State, 700 So.2d 370 (Fla.1997), that a folding pocketknife with a blade of four inches or less falls within the statutory exception to the definition of a "weapon" found in § 790.001(13), be applied retroactively?

Bunkley, 768 So.2d at 511. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We answer in the negative, as explained herein.

I. FACTS

Bunkley burglarized an unoccupied Western Sizzlin' Restaurant on April 23, 1987. He was arrested at the scene and later charged with and convicted of armed burglary, possession of burglary tools, and resisting arrest without violence. In light of his fifteen prior convictions, he was sentenced to life imprisonment on the armed burglary count, five years' imprisonment on the possession of burglary tools count, and six months' imprisonment on the resisting arrest count. His convictions and sentences were affirmed.¹

Bunkley subsequently sought postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 and the relevant facts are set forth in the district court opinion below:

Bunkley was convicted of armed burglary after a jury trial on April 23, 1987. The arresting officer testified as to the following facts: Bunkley broke into a closed, unoccupied Western Sizzlin' Restaurant in the early morning hours, and was apprehended after leaving the structure with a common pocketknife in his pocket. At the time of Bunkley's arrest, the pocketknife, with a blade of 2½ to 3 inches in length, was folded and in his pocket. There is no evidence indicating Bunkley ever used the pocketknife during the burglary, nor that he threatened anyone with the pocketknife at any time.

In his rule 3.850 motion, Bunkley contends the trial court erroneously allowed the jury to determine whether the pocketknife found in his possession could be considered a deadly weapon, rather than concluding it was not as a matter of law. Bunkley concedes that his motion was filed more than two years after his convictions on April 23, 1987, became final. He contends, however, that the arguments raised in his motion were not supported by case law until the supreme court decided L.B. v. State, 700 So.2d 370 (Fla.1997), and that he filed his motion within two years from the date of that decision.

In L.B., the Florida Supreme Court reversed this court's decision finding section 790.001(13), Florida Statutes (1995), unconstitutionally vague. At issue was the exclusion of a "common pocketknife" from the definition of "weapon" in section 790.001(13). The Florida Supreme Court found that the statutory term was not so vague as to fail to put people of ordinary intelligence on notice of what constitutes forbidden conduct under the statute. To define the term, the court relied upon an Attorney General's opinion that a common pocketknife was one with a blade of four inches or less.

Bunkley, 768 So.2d at 510 (citations omitted). The district court declined to apply L.B. retroactively, affirmed the denial of rule 3.850 relief, and certified the above question.

The issue presented in this case, i.e., whether a decision of this Court must be applied retroactively, is a pure question of law, subject to de novo review.²

II. L.B. v. STATE

The petitioner in L.B. v. State, 700 So.2d 370 (Fla.1997), was charged with and convicted of possessing a "weapon" on school grounds based on her possession of a folding knife with a 3¾-inch blade:

At trial, the court considered whether petitioner's knife fit within the "common pocketknife" exception to the definition of "weapon" contained in section 790.001(13), Florida Statutes (1995). Section 790.001(13) provides:

"Weapon" means any dirk, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife.

The trial court found that petitioner's knife was too large to be considered a "common pocketknife," and was therefore a "weapon" within the meaning of sections 790.001(13) and 790.115(2). Accordingly, the trial court found appellant guilty of the violation.

On appeal, the Second District vacated the trial court's order and remanded the case for a new trial. The district court held that section 790.001(13) is unconstitutionally vague insofar as it excludes "common pocketknives" from the definition of "weapon."

L.B., 700 So.2d at 371 (footnote and citations omitted).

This Court disagreed that the phrase "common pocketknife" was unconstitutionally vague:

The legislature's failure to define the term "common pocketknife" in section 790.001(13) does not render that term unconstitutionally vague. Moreover, a court may refer to a dictionary to ascertain the plain and ordinary meaning which the legislature intended to ascribe to the term.

[The Court then set forth dictionary definitions of the terms "common" and "pocketknife."] From these definitions, we can infer that the legislature's intended definition of "common pocketknife" was: "A type of knife occurring frequently in the community which has a blade that folds into the handle and that can be carried in one's pocket." We believe that in the vast majority of cases, it will be evident to citizens and fact-finders whether one's pocketknife is a "common" pocketknife under any intended definition of that term.

L.B., 700 So.2d at 372 (citations omitted).

The Court concluded that the petitioner's knife plainly fell within the meaning of "common pocketknife" but added the following caveat:

We note that neither the Attorney General nor this Court maintains that four inches is a bright line cutoff for determining whether a particular knife is a "common pocketknife." We merely hold that appellant's knife fits within the exception to the definition of weapon found in section 790.001(13).

L.B., 700 So.2d at 373 n. 4.

III. THE APPLICABLE STATUTES

The burglary statute, which differentiates between simple and armed burglary, provides in relevant part:

810.02 Burglary.—

(1) "Burglary" means entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.

(2) Burglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment... if, in the course of committing the offense, the offender:

. . . .

(b) Is armed, or arms himself within such structure or conveyance, with explosives or a dangerous weapon.

(3) ... Otherwise, burglary is a felony of the third degree, punishable [by a term of imprisonment not exceeding five years].

§ 810.02, Fla. Stat. (1985) (emphasis added).

The phrase "dangerous weapon" has appeared in the above statute since it was enacted in 1895³ and is not defined therein. To determine the meaning of that phrase, courts traditionally have turned to chapter 790, Florida Statutes, entitled "Weapons and Firearms." Section 790.001 defines the term "weapon" and expressly excepts a "common pocketknife":

(13) "Weapon" means any dirk, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife.

§ 790.001(13), Fla. Stat. (1985) (emphasis added).⁴ This definition was based on the description of "weapon" found in the precursor statute, section 790.01, which was enacted in 1901 and also excepted a "common pocketknife."⁵

IV. CHANGES IN THE LAW

Intent is a polestar that guides a court's inquiry into whether a change in the law should be given prospective or retroactive application. As a rule, a change in the statutory law is presumed to operate prospectively absent a clear showing of contrary intent.⁶ A change in the decisional law in a nonfinal case, on the other hand, is presumed to operate in all other nonfinal cases.⁷ A change in either the statutory or decisional law may operate retroactively when retroactive application is expressly provided,⁸ but regardless of intent, the issue of retroactivity is ultimately controlled by overarching constitutional principles.

The Court in Witt v. State, 387 So.2d 922 (Fla.1980), was confronted with the following question: must a change in the law that is announced in a nonfinal case be applied in final cases?⁹ The Court held that only "jurisprudential upheavals" will be applied in final cases, and that "evolutionary refinements" in the law will not be applied in final cases. The Court explained:

We emphasize at this point that only major constitutional changes of law will be cognizable ... under Rule 3.850. Although specific determinations regarding the significance of various legal developments must be made on a case-by-case basis, history shows that most major constitutional changes are likely to fall within two broad categories. The first are those changes of law which place beyond the authority of the state the power to regulate certain conduct or impose certain penalties. This category is exemplified by Coker v. Georgia, which held that the imposition of the death penalty for the crime of rape of an adult woman is forbidden by the eighth amendment as cruel and unusual punishment. The second are those changes of law which are of sufficient magnitude to necessitate retroactive application as ascertained by the three-fold test of Stovall and Linkletter [v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965)]. Gideon v. Wainwright, of course, is the prime example of

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