Duff v. State

• Decision Date: 09 November 2006
• Docket Number: No. 5D06-150.,5D06-150.
• Citation: 942 So.2d 926
• Parties: Sean M. DUFF, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

942 So.2d 926

Sean M. DUFF, Appellant, v. STATE of Florida, Appellee.

No. 5D06-150.

District Court of Appeal of Florida, Fifth District.

November 9, 2006.

Adam H. Sudbury, of Calzada, Hamner & Wilson, P.L., Orlando, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.

PLEUS, C.J.

Sean Duff appeals his conviction for driving while license revoked as a habitual traffic offender in violation of section 322.34(5), Florida Statutes (2005). He argues that this conviction violated his right against double jeopardy because he had already pled to and served a 30 day sentence for driving while license suspended, cancelled or revoked in violation of section 322.34(2). Both charges arose from the same driving incident. Although Duff acknowledges that these crimes contain different elements, he argues that successive prosecution and punishment for the greater offense violates the "degree variants" principle of Florida's double jeopardy jurisprudence. We agree and reverse.

On August 9, 2005, Duff was stopped for speeding. A check of Duff's driver's license status revealed that it had been revoked as a habitual traffic offender and had also been suspended numerous times. The arresting officer issued four traffic citations for speeding, passing in a no passing zone, having an expired driver's license and driving while license revoked as a habitual traffic offender.

We note that both Duff's initial brief and the officer's arrest affidavit refer to the last citation as one for driving while license suspended, but the actual citation refers to driving while license revoked as a habitual traffic offender in violation of section 322.34(5). Thus, Duff was never charged with driving while license suspended. A case based on the traffic citation for driving while license revoked as a habitual traffic offender was opened in county court, even though it was a felony charge. At the same time, a second case based on the arrest affidavit was opened in circuit court.

On August 30, 2005, the State filed an information for driving while license revoked as a habitual traffic offender in the circuit court case. On September 23, 2005, Duff appeared at a pretrial conference in the county court case. At that hearing, Duff asked if the State was offering anything to resolve the case. The State offered 30 days in county jail and stated that "it would just be a plea to the DWLS [driving while license suspended]." Duff clarified, "So I would be pleading to driving while my license is suspended and would be adjudicated guilty for that charge?" The judge responded, "Yes, sir." The judge further stated that the State "probably could have filed this case as a felony, but chose not to do so." Duff accepted the offer and the judge adjudicated him guilty of driving while license suspended or revoked. She then sentenced Duff to 364 days in jail with 334 suspended on the condition that he report to jail on October 3, 2005.

On September 26, 2005, Duff appeared at arraignment in circuit court and the court appointed a public defender to represent him. Duff filed a motion to dismiss based on double jeopardy. After a hearing, the court denied Duff's motion. Duff then filed a petition for writ of prohibition, which this Court denied without prejudice to raise the double jeopardy issue on direct appeal. See Duff v. State, 5D06-28 (Fla. 5th DCA 2006). Duff later pled no contest, reserving the right to appeal the denial of his motion to dismiss. The court adjudicated Duff guilty of driving while license revoked as a habitual offender and sentenced him to six months probation.¹

On timely appeal, Duff argues that the trial court erred in denying his motion to dismiss because the State's subsequent prosecution for driving while license revoked as a habitual traffic offender violated the "degree variants" principle of Florida's double jeopardy jurisprudence.

Double Jeopardy Analysis

Both the Fifth Amendment to the United States Constitution and Article I, Section 9 of the Florida Constitution protect persons from being put in jeopardy twice for the same offense. Our supreme court recently reiterated that it looks to the Blockburger² test, as codified in section 775.021(4), Florida Statutes, to determine whether double jeopardy has been violated. State v. Paul, 934 So.2d 1167 (Fla. 2006).

Section 775.021(4), Florida Statutes (2005), states:

(a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.

(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:

1. Offenses which require identical elements of proof.

2. Offenses which are degrees of the same offense as provided by statute.

3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

(Emphasis added).

The analysis involves two steps. Gordon v. State, 780 So.2d 17, 20 (Fla.2001). First, the court must determine whether the offenses each contain an element of proof that the other does not, as stated in section 775.021(4)(a). If they do not, double jeopardy bars multiple prosecutions or convictions. If they each contain separate elements, then the court must determine if one of the three exceptions in section 775.021(4)(b) applies. The first exception is merely a restatement of the same elements test in subsection (4)(a). The second exception is referred to as the "degree variants" test. The third exception deals with necessary lesser included offenses.

a. The Blockburger or "Same Elements" Test

Blockburger and section 775.021(4)(a) require courts to first examine whether "each offense requires proof of an element that the other does not. . . ." This step is referred to as the "same elements" test. Paul, 934 So.2d at 1173.

In State v. Cooke, 767 So.2d 468 (Fla. 4th DCA 1999), the Fourth District applied the same elements test to the same two crimes involved in the instant case and concluded that the offenses were separate. Specifically, driving while license suspended requires proof the defendant knew his license was suspended. Driving while license revoked as a habitual traffic offender requires proof of revocation of the defendant's driver's license. Id. at 469. Consequently, double jeopardy did not bar a subsequent prosecution for driving while license revoked as a habitual traffic offender after the defendant had been acquitted of driving while license suspended. Id.

Duff concedes that under the same elements test, his offenses each contain an element different from the other. However, he argues that this Court should not follow Cooke for two reasons. First, Duff claims that Cooke's reasoning is erroneous because the term "offense" should be construed to include the "underlying factual transaction or occurrence upon which the State relies to proceed in the first criminal prosecution." Presumably, Duff is assuming that for both crimes, the State would adduce proof of the same facts, i.e. that on August 9, 2005, Duff was driving with a suspended or revoked license. This argument runs afoul of the "same elements" test, as expressed in the plain language of section 775.021(4)(a). That section states in pertinent part that "offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial." (Emphasis added). In other words, this test focuses on comparing the statutory elements, not the underlying pleadings or proof.

Duff also argues that Cooke does not control this case because the court in Cooke did not consider the "degree variants" exception in section 775.021(4)(b)(2).

b. The "Degree Variants" Exception

Section 775.02(4)(b)(2) provides an exception to the Legislature's intent to "convict and sentence for each criminal offense committed in the course of one criminal episode or transaction" for offenses which are "degrees of the same offense as provided by statute." Despite this statutory language, we have noted that the application of this exception "has become more complicated as it has been fleshed out." Austin v. State, 852 So.2d 898 (Fla. 5th DCA 2003). In particular, the supreme court has employed various phrases over time to "flesh out" this exception.

For example, in Sirmons v. State, 634 So.2d 153 (Fla.1994), the supreme court held that convictions for grand theft auto and robbery with a weapon violated double jeopardy because they were "merely degree variants of the core offense of theft" or, stated differently, "both offenses are aggravated forms of the same underlying offense distinguished only by degree factors." Id. at 154. However, in Gordon v. State, 780 So.2d 17 (Fla.2001), the supreme court noted that

Extended to its logical extreme, a broad reading of Sirmons and the second statutory exception would render section 775.021 a nullity. Indeed, the plethora of criminal offenses is undoubtedly derived from a limited number of "core" crimes. In no uncertain terms, the Legislature specifically expressed its intent that criminal defendants should be convicted and sentenced for every crime committed during the course of one criminal episode. See § 775.021(4)(b). The courts' exceptions for homicides, which are discussed...