Fierro v. State, 93-1952

• Decision Date: 04 April 1995
• Docket Number: No. 93-1952,93-1952
• Citation: 653 So.2d 447
• Parties: 20 Fla. L. Weekly D849 Matthew FIERRO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 447

653 So.2d 447

20 Fla. L. Weekly D849

Matthew FIERRO, Appellant, v. STATE of Florida, Appellee.

No. 93-1952.

District Court of Appeal of Florida,

First District.

April 4, 1995.

Nancy A. Daniels, Public Defender and Nada M. Carey, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen. and Wendy S. Morris, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

This is a direct appeal of convictions and sentences for (Count I) concealing or removing a minor child contrary to court order in violation of section 787.04, Florida Statutes; (Count II) false imprisonment; and (Count III) use of a firearm in the commission of a felony. Appellant was sentenced to five years probation on each of Counts I and II, both concurrent to the sentence of 12 years probation on Count III. Appellant contends his conviction for concealing or removing a minor child contrary to court order is barred by double jeopardy because he had previously been convicted of criminal contempt based on his violation of the same court order. We agree and reverse the conviction for that offense. We affirm the convictions and sentences for false imprisonment and use of a firearm in the commission of a felony.

While dissolution of marriage proceedings were pending, a temporary custody order was in effect providing for shared parental custody and establishing a schedule for each parent to have custody of the child. The temporary order provided that neither party was to take the child outside of the Second Judicial Circuit of the State of Florida without the prior consent of the other party in writing. On September 17, 1991, appellant failed to return his then three year old son to the child's mother, as required by the order, and could not be found for some fourteen months thereafter. In November, 1992, appellant was apprehended in South Carolina where he had been living with the child. As a result, he was found in contempt of the court's temporary custody order and sentenced to approximately six months in jail.

The State charged appellant with violating section 787.04, Florida Statutes, which provides: "It is unlawful for any person, in violation of a court order, to lead, take, entice or remove a minor beyond the limits of this state, or to conceal the location of a minor, with personal knowledge of the order." Appellant's motion to dismiss this charge on double jeopardy grounds was denied. Appellant was found guilty as charged of this offense after a jury trial.

At hearing on the motion to dismiss, the trial court took judicial notice that the contempt proceedings and the present charge arose from the same facts, but based its ruling on the distinction between criminal contempt proceedings and other criminal proceedings, although noting that the law regarding double jeopardy was in "somewhat of a state of flux" at that time. After the court's ruling, and after this case was tried and the notice of appeal filed, the United States Supreme Court issued its opinion in United States v. Dixon, --- U.S. ----, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). In Dixon, addressing the issue "whether prosecution for criminal contempt based on violation of a criminal law incorporated into a court order bars a subsequent prosecution for the criminal offense," the Court held that double jeopardy attaches to nonsummary criminal contempt prosecutions. If the two offenses cannot survive the Blockburger "same elements" test, the second prosecution is barred by the double jeopardy clause. Id. See Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Under the Blockburger test, if each offense contains an element not contained in the other, there is no double jeopardy problem.

Appellant contends the contempt conviction is subsumed by the statutory offense, because all elements of the criminal contempt are included in the statutory offense, citing State v. Johnson, 644 So.2d 1028 (Fla. 3d DCA 1994), for support. In Johnson, the court said the trial court correctly dismissed the charge of aggravated stalking by violating a prior injunction.

In this case, as in Dixon, the substantive charge was subsumed under the language of the injunction. There is no conceivable way in which Dixon could have committed aggravated stalking against the victim without also violating the terms of the injunction, a crime for which he had already been convicted. In the language of Dixon, aggravated stalking is 'a species of lesser included offense' of the contempt charge, ...; the rule against double jeopardy thus barred the subsequent prosecution for aggravated stalking.

Appellant also cites as authority Hernandez v. State, 624 So.2d 782 (Fla. 2d DCA 1993), in which the court concluded a conviction for indirect criminal contempt violated double jeopardy because appellant had already been prosecuted for battery and violation of an injunction for protection, which offenses were the foundation for the contempt. According to Hernandez, Dixon "established that the Double Jeopardy Clause prohibits the subsequent prosecution for a substantive offense that underlies a criminal contempt charge for which one has been convicted. It also holds the converse, i.e., subsequent prosecution for criminal contempt, the basis of which is a substantive offense for which a conviction has been obtained, violates the Double Jeopardy Clause."

The State contends each offense contains an element the other does not: the criminal contempt requires taking the child without prior consent of the other party in writing; and the removal offense requires that the removal be beyond the limits of the state, not merely beyond the Second Judicial Circuit. Also, the removal offense contains an alternate...