Gibbs v. State, 94-1244

• Decision Date: 19 June 1996
• Docket Number: No. 94-1244,94-1244
• Citation: 676 So.2d 1001
• Parties: 21 Fla. L. Weekly D1414 Daniel GIBBS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1001

676 So.2d 1001

21 Fla. L. Weekly D1414

Daniel GIBBS, Appellant, v. STATE of Florida, Appellee.

No. 94-1244.

District Court of Appeal of Florida,

Fourth District.

June 19, 1996.

Jonathan Jay Kirschner of Kirschner & Garland, P.A., Fort Pierce, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Carol Cobourn Asbury, Assistant Attorney General, West Palm Beach, for appellee.

EN BANC

FARMER, Judge.

Because of a conflict in our published decisions on the issue whether a defendant can be separately punished for multiple offenses under sections 893.13 and 893.135, Florida Statutes (1991), we have granted review en banc to harmonize them.

In Jackson v. State, 418 So.2d 456 (Fla. 4th DCA 1982), we held that a single controlled substance possessed both on the person and in a vehicle could not give rise to separate prosecutions. In Lundy v. State, 596 So.2d 1167 (Fla. 4th DCA 1992), we held that the Double Jeopardy Clause of the federal Constitution prohibited separate convictions and punishment for simple possession and trafficking possession of the same cocaine. More recently, however, in Peterson v. State, 645 So.2d 1028 (Fla. 4th DCA 1994), we held that the defendant could be separately convicted and punished for possession with intent to sell and simple possession of the same drugs.

Defendant in this case was arrested for driving on a suspended license. At the time of arrest his hand clutched a piece of cellophane containing a substance that proved later to be cocaine. A search of his automobile later revealed two hidden ziplock plastic bags, wrapped in cellophane and stored inside a paper bag. These two ziplock bags contained a substance that also proved later to be cocaine. ¹ Defendant argues under Lundy and Jackson that his separate convictions and consecutive punishments for simple possession and trafficking possession of this cocaine must be reversed. The state argues under Peterson that separate convictions and consecutive sentences for these crimes are entirely permissible. We agree with the state and recede from anything in Jackson and Lundy to the contrary.

Under Blockburger ² analysis, it is constitutional for the state to prosecute offenses separately even though they arise from a single transaction or episode. State v. Smith, 547 So.2d 613 (Fla.1989); section 775.021(4), Florida Statutes (1995). Moreover, for double jeopardy analysis one looks only to the statutory elements of the crimes charged, and not to the charging document or the evidence adduced. State v. Baker, 456 So.2d 419 (Fla.1984).

It is suggested that Sirmons v. State, 634 So.2d 153 (Fla.1994), supports defendant's argument contending a double jeopardy violation in this case. Sirmons is the head of a line of cases from the supreme court, including State v. Thompson, 607 So.2d 422 (Fla.1992), and Johnson v. State, 597 So.2d 798 (Fla.1992), dealing with double jeopardy and crimes involving penal variations on the essential act of theft. The two convictions in Sirmons were grand theft of an automobile and robbery, all arising from a single act of stealing an automobile. The crimes in Johnson were burglary of a conveyance, grand theft of property, and grand theft of a firearm. In Thompson the crimes were sale of a counterfeit controlled substance and felony petit theft. Sirmons states that it applies the same rationale as the court used in Johnson and Thompson.

In Johnson the court explained:

"The theft occurred when Johnson wrongfully took the property of another. He did this in one swift motion. The degree of the crime of theft depends on what was taken. Because of the value of the property, his crime was a third-degree felony. Because part of the goods he took was a firearm, his crime additionally is defined as a third-degree felony. Subsection 812.014(1), Florida Statutes (1989), defines the crime of theft, and subsection 812.014(2) sets the degree of the crime committed under subsection (1). We conclude that the value of the goods or the taking of a firearm merely defines the degree of the felony and does not constitute separate crimes. A separate crime occurs only when there are separate distinct acts of seizing the property of another."

Johnson, 597 So.2d at 799.

In Thompson, the court adopted as its own the opinion of the district court. The district court's opinion reasoned:

"The Florida Legislature has announced its intent that there should be separate and multiple convictions for each statutory offense that is committed during the course of a criminal transaction or episode. In section 775.021(4)(b) the Legislature set out basically only two exceptions to this policy. Subsections 1 and 3 are encompassed by the Blockburger test: statutory offenses which require proof of all of the same elements of proof; and those that require fewer, but identical elements of proof, which are necessarily included in the elements of the greater offense. Subsection 2 excepts 'degree' crimes, such as the various forms of homicide.

"If the Blockburger test is applied to the two crimes in this case, they are not 'the same offense' because each has an essential element that the other lacks. Fraudulent sale requires a completed sale of a particular item (counterfeit contraband). Felony petit theft requires proof of prior petit thefts, and the wrongful obtaining of property worth less than $300. Thus, as in the sale and possession of the same bits of rock cocaine, Blockburger or section 775.021(4)(a) and (b) do not bar multiple convictions in the same prosecution.

"However, the fraudulent sale crime is placed in Chapter 817, which covers various fraudulent practices. Most of those crimes defined in chapter 817 could have historically been prosecuted as a form of larceny or theft. See, e.g., Paulk v. State, 344 So.2d 304 (Fla. 2d DCA 1977) (pest inspector who made misrepresentations and planted termites in attic to obtain contract could be prosecuted for larceny by trick). Chapter 817 breaks down larceny by fraud into fact-specific categories, such as obtaining property by fraudulent promise to furnish inside information, procuring assignments of produce upon false representations, making false invoices to defraud an insurer, etc.

"Felony petit theft, on the other hand, is listed as a crime under the more general Anti-Fencing Act, Chapter 812, Florida Statutes. Florida's Anti-Fencing Act, when enacted in 1977, eliminated technical distinctions between different theft and theft-related offenses in an effort to simplify prosecutions involving the wrongful acquisition by one person of the property of another. As used in the statute defining the crime of theft, the term 'obtains or uses' means any manner of taking or exercising control over property, or making any unauthorized use, disposition, or transfer of property. This would include obtaining property by fraud, conduct previously known as stealing, conversion, embezzlement, or other conduct similar in nature. See Sec. 812.012(2), Florida Statutes (1989).

"At present, Florida's criminal code still retains specific theft statutes regarding particular property or practices, such as the fraudulent practices defined in Chapter 817. It appears that the specific statutory offenses of theft, such as those contained in Chapter 817, are different degrees (or more specific descriptions) of the general statutory offense of theft defined in Chapter 812. Accordingly, an act of criminal fraud should be prosecuted either under Florida's Anti-Fencing Act or under a more specific statute contained in Chapter 817, if applicable, but the legislature did not intend for the same act of criminal fraud to be prosecuted under both statutes as separate offenses. All specific theft by fraud offenses are theoretically subsumed in the general Anti-Fencing Act, not in terms of comparing the essential elements of each offense, but in substance and by definition, since the Anti-Fencing Act broadly encompasses and proscribes these criminal frauds.

"This case presents an unusual example of two statutory offenses which are not the 'same' for Blockburger purposes, but which may nevertheless be barred from double conviction because of the historical development of the criminal code with regard to thefts. In this case there was one fraudulent sale prosecuted under the fact-specific statute. The general statutory offense (felony petit theft) may have been superseded by passage of the specific statute, for this fact situation, although this issue is not before us. However, we hold section 775.021(4)(b) bars concurrent prosecution for the general theft crime together with the specific crime. The specific theft crimes have become 'degrees' of the generally defined theft crime in Chapter 812, based on the history and current revision of Florida's theft statute."

Thompson v. State, 585 So.2d 492, 493-95 (Fla. 5th DCA 1991).

Finally, in Sirmons the court said:

"In the present case, Sirmons was convicted of robbery with a weapon and grand theft of an automobile. As in Johnson [v. State, 597 So.2d 798 (Fla.1992) ] and [State v.] Thompson [607 So.2d 422 (Fla.1992) ], these offenses are merely degree variants of the core offense of theft. The degree factors of force and use of a weapon aggravate the underlying theft offense to a first-degree felony robbery. Likewise, the fact that an automobile was taken enhances the core offense to grand theft. In sum, both offenses are aggravated forms of the same underlying offense distinguished only by degree factors. Thus, Sirmons' dual convictions based on the same core offense cannot stand."

634 So.2d at 154.

The supreme court has confronted double jeopardy claims in connection with the drug laws since the legislature amended section 775.021(4) in response to the court's Carawan decision. ³ The leading case is State v. McCloud, 577 So.2d 939 (Fla.1991), where the dual convictions involved sale of cocaine and possession (or possession with intent to sell)...