Bunkley v. State

• Decision Date: 27 May 2004
• Docket Number: No. SC01-297.,SC01-297.
• Citation: 882 So.2d 890
• Parties: Clyde Timothy BUNKLEY, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

882 So.2d 890

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

No. SC01-297.

Supreme Court of Florida.

May 27, 2004.

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

Charles J. Crist, Jr., Attorney General, and Katherine V. Blanco, Senior Assistant Attorney General, Tampa, FL, for Respondent.

ON REMAND

BELL, J.

This case is before the Court on remand from the United States Supreme Court for reconsideration of our decision in Bunkley v. State, 833 So.2d 739 (Fla.2002),vacated, 538 U.S. 835, 123 S.Ct. 2020, 155 L.Ed.2d 1046 (2003). We have jurisdiction under article V, section 3(b)(4) of the Florida Constitution and reaffirm our decision in Bunkley.

FACTS AND PROCEDURAL HISTORY

The facts are set out fully in this Court's initial opinion on review. Bunkley, 833 So.2d at 740-41. In 1986, Bunkley burglarized a closed, unoccupied restaurant. When he was arrested, he had in his pocket a folding knife with a blade shorter than four inches. The knife had been folded in his pocket at all times during the burglary. Bunkley was charged with armed burglary. To prove the offense under section 810.02(2)(b), Florida Statutes (1985), the State had to prove that Bunkley was armed with a "dangerous weapon." The applicable statutory definition of a "weapon" in section 790.001(13), Florida Statutes (1985), excluded a "common pocketknife." Specifically, this statute defined a "weapon" as "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 term "common pocketknife" is not statutorily defined.

That Bunkley's knife was a "dangerous weapon" and not an excepted "common pocketknife" was a basic element of the offense the State had to prove to the jury. To establish this element at trial, the arresting officer told the jury that Bunkley had "a good-sized buck knife." The officer said that the blade, which folded into the handle, was about two-and-one-half to three inches long. The officer testified further that Bunkley's knife blade locked in the open position. The officer explained how this feature distinguished it from a common pocketknife:

It's a locked blade, which makes it a dangerous weapon for the simple fact that an average pocketknife, if you stick something with it and you're not very good at what you do, the blade will close. The pocketknife has that safety feature, that it will close. This blade will not close unless you push down very hard on this spring.

On cross-examination, Bunkley acknowledged that the knife could cut a throat and could be considered a dangerous weapon. In closing argument, the prosecutor described the blade as thick and capable of being locked in an open position, unlike a common pocketknife. Because the knife was admitted into evidence, the jurors could examine it for themselves.

The jury, having heard the evidence, considered the arguments of counsel, and received from the trial judge the proper instruction on the law applicable to the charged offense,¹ concluded Bunkley's knife was a dangerous weapon, not a common pocketknife, and convicted him of armed burglary, possession of burglary tools, and resisting arrest without violence. The court entered judgment in April 1987. On the armed burglary conviction, the court sentenced Bunkley to life imprisonment in accordance with the sentencing guidelines. The sentence was based in part on Bunkley's fifteen prior convictions, fourteen of which were related to burglary. The Second District Court of Appeal affirmed Bunkley's conviction without opinion. Bunkley v. State, 539 So.2d 477 (Fla. 2d DCA 1989) (table).²

Bunkley filed two motions for postconviction relief, challenging the jury's finding that he was armed with a dangerous weapon. The Second District Court of Appeal affirmed the denial of one of Bunkley's motions, Bunkley v. State, 569 So.2d 447 (table) (No. 90-02681), and struck the appeal from the denial of the other motion. Bunkley v. State, 569 So.2d 447 (Fla. 2d DCA 1990) (table) (No. 90-02568). Bunkley also filed two federal habeas petitions in which he argued that he could not be convicted of armed burglary because his knife was a common pocketknife excluded from the section 790.001(13) definition of a weapon. The federal district court denied Bunkley relief. Bunkley v. Singletary, No. 96-405-CIV-T-24C (M.D.Fla. Feb. 26, 1999); Bunkley v. Dugger, No. 91-113-CIV-T-99B (M.D. Fla. June 1, 1993). Bunkley also filed a petition to invoke all writs in this Court, which we denied without opinion in July 1995. Bunkley v. State, 660 So.2d 712 (Fla.1995) (table).

In 1997, eight years after Bunkley's conviction and sentence became final, we decided L.B. v. State, 700 So.2d 370 (Fla.1997), in which we interpreted the "common pocketknife" exception to the section 790.001(13) definition of a "weapon."³ We held in L.B. that the petitioner's knife, which had a three-and-three-quarter-inch blade, fell within the "common pocketknife" exception. Id. at 373. In reaching that conclusion, we cited a 1951 Florida Attorney General's opinion which stated that a pocketknife with a blade of four inches or less is a common pocketknife. Id. (citing Op. Att'y Gen. Fla. 51-358 (1951)). Based on the L.B. decision, Bunkley applied for postconviction relief under Florida Rule of Criminal Procedure 3.850. Bunkley argued that under the L.B. definition of a "common pocketknife," his knife with its three-inch blade was excluded from the statutory definition of a "weapon," so that he could not be convicted of armed burglary.

The circuit court dismissed Bunkley's rule 3.850 motion, and the Second District Court of Appeal affirmed, but certified to us the question of whether L.B. was to be applied retroactively. Bunkley v. State, 768 So.2d 510 (Fla. 2d DCA 2000). In answering the Second District's certified question, we determined that L.B. constituted a "change" not a "clarification" in the law. We expressly looked at the decision in Fiore v. White, 531 U.S. 225, 121 S.Ct. 712, 148 L.Ed.2d 629 (2001), but rejected its applicability to Bunkley. We determined that, "as opposed to `changes' in the law, an entirely separate body of precedent, i.e. `clarifications' in the law, has no application under Florida law in the context of retroactivity." Bunkley 833 So.2d at 744. Applying our well-established law on retroactivity, we held that L.B. did not apply retroactively to Bunkley's case and approved the Second District's decision. Bunkley v. State, 833 So.2d 739, 746 (Fla.2002). We explained that only a "jurisprudential upheaval," defined as a "major constitutional change of law," justified retroactive application. Id. at 744 (citing Witt v. State, 387 So.2d 922, 929-30 (Fla.1980)). We concluded that L.B. was, instead, a mere "evolutionary refinement" in the law, and thus would not be applied retroactively. Bunkley, 833 So.2d at 745.

Justice Pariente, in a dissent joined by Chief Justice Anstead, argued that Bunkley's conviction violated the due process principles of Fiore v. White, 531 U.S. 225, 121 S.Ct. 712, 148 L.Ed.2d 629 (2001). Fiore held that due process is violated by a conviction based on conduct that a "criminal statute, as properly interpreted, does not prohibit." Id. at 228, 121 S.Ct. 712. The Bunkley dissent argued that L.B. did not change or refine the law but merely clarified the existing interpretation of a "common pocketknife" under the statute. Bunkley, 833 So.2d at 747 (Pariente, J., dissenting). According to the dissent, L.B."correctly stated the law at the time Bunkley's conviction became final." Bunkley, 833 So.2d at 747 (Pariente, J., dissenting). Thus, the dissent stated that under 1989 law (as clarified by L.B. in 1997), Bunkley carried a "common pocketknife" excepted from the statutory definition of a "weapon," so he could not be convicted of armed burglary. Bunkley, 833 So.2d at 747. Bunkley then filed a pro se petition for writ of certiorari to the United States Supreme Court.

The United States Supreme Court granted certiorari from and vacated this Court's decision. Bunkley v. Florida, 538 U.S. 835, 123 S.Ct. 2020, 155 L.Ed.2d 1046 (2003). The Supreme Court remanded the case with instructions to consider whether, in light of Fiore and L.B., Bunkley was convicted without proof of one of the elements of the crime. The Supreme Court accepted this Court's conclusion that L.B. changed the law. Bunkley, 123 S.Ct. at 2023. However, the Supreme Court noted that this Court said L.B. culminated a "century-long evolutionary process" in the law on the "common pocketknife" exception. Id. The Supreme Court could not determine whether L.B. changed the law from 1989 when Bunkley's conviction became final or whether L.B. merely clarified the law as it had existed in 1989. Id.

Consequently, the United States Supreme Court said that the question under Fiore, left unanswered by our decision in Bunkley, was whether a two-and-one-half-to three-inch pocketknife was a "weapon" under the statute in 1989. Bunkley, 123 S.Ct. at 2024. If Bunkley's pocketknife was not a "weapon" under the statute when his conviction became final in 1989, then his conviction violated Fiore's due process principles. On the other hand, if Bunkley's knife could have been a "weapon" under the statute in 1989, then Bunkley's conviction stands.

FLORIDA LAW IN 1989

In answer to the United States Supreme Court's question, we clarify that Bunkley's conviction was proper under Florida law in 1989. Basically, in light of both Fiore and L.B., Bunkley was not convicted without proof of one of the elements of his crime. Bunkley's knife could have been a "dangerous weapon" under both the statute and the decisional law at that time. In 1989, whether Bunkley's knife was a weapon was properly a factual determination for his jury. Having heard the evidence and having received proper instructions on the law, Bunkley's jury unanimously determined that his knife was a dangerous...