Green v. State

• Decision Date: 18 October 2002
• Docket Number: No. 5D01-2837.,5D01-2837.
• Citation: 828 So.2d 462
• Parties: Carl GREEN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

828 So.2d 462

Carl GREEN, Appellant, v. STATE of Florida, Appellee.

No. 5D01-2837.

District Court of Appeal of Florida, Fifth District.

October 18, 2002.

James B. Gibson, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.

PLEUS, J.

Double jeopardy is the only issue of merit presented in this appeal.¹ Can a defendant be convicted of armed carjacking and burglary of a conveyance with an assault when both arise out of the same incident? We say yes, and affirm Green's conviction.

At approximately 2:30 in the morning, the victim left her place of employment. As she drove to her boyfriend's house, she believed that she was being followed. As she parked in the driveway, Carl Green suddenly appeared and pointed at her what appeared to be a gun and demanded the keys to her car. The victim surrendered the keys, got out, and Green drove away in the victim's car. A short time later, the police observed the victim's car on a nearby road. Green fled from the police but eventually crashed the car. Police apprehended Green and found an air pistol in the car.

Green was charged with armed carjacking,² burglary of a conveyance with assault,³ and aggravated flight from a law enforcement officer.⁴ The jury found Green guilty as charged. On appeal, Green argues that he cannot be convicted of both armed carjacking and burglary of a conveyance with an assault without violating his rights against double jeopardy. Specifically, he argues that the state, in order to prove the armed carjacking, had to prove the burglary as well. Thus, his crime of burglary was subsumed by his crime of carjacking. Although this issue appears to be one of first impression, we are guided in our analysis by section 775.021(4), Florida Statutes (2002), which 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.

The Legislature expressed its intent that there be a separate conviction and sentence for each criminal offense involved in a single transaction, unless the offenses fall within one of the stated exceptions. McAllister v. State, 718 So.2d 917, 918-19 (Fla. 5th DCA 1998).

The crimes in the instant case do not fall within any of the statutory exceptions. Armed carjacking and burglary of a conveyance with assault contain different elements of proof. Specifically, carjacking requires the "taking of a motor vehicle ... from the person or custody of another," while burglary of a conveyance requires "entering ... of a conveyance with the intent to commit an offense therein." See also Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). These crimes are not degrees of the same offense. Carjacking is a theft crime. It is well established that theft and burglary, even if of the same item, a motor vehicle, are separate crimes addressing separate evils. See State v. Stephens, 601 So.2d 1195, 1197 (Fla.1992) ("The act of breaking into a vehicle itself is a separate evil often involving damage to components of that vehicle. Car theft involves the separate evil of depriving an owner of the entire car.").

We also reject Green's argument that burglary of a conveyance with assault is subsumed within carjacking. Our supreme court rejected a similar argument in Stephens, stating:

Such a burglary is complete the moment the defendant enters or remains within the vehicle with the requisite intent. Even if the defendant changes plans and decides not to steal the vehicle, the crime of burglary still would exist. However, if the defendant then takes the additional step of starting the vehicle and driving away with it, the separate crime of auto theft then will be complete. In sum, two separate evils involving two distinct temporal events are involved in the typical auto theft. Nothing in our law prohibits the charging of both offenses merely because both often occur within a single transaction.

Stephens, 601 So.2d at 1197. We believe this analysis applies in the instant case as well. Accordingly, we conclude there is no violation of Green's double jeopardy rights in his convictions for carjacking and burglary of a conveyance with assault.⁵

Our ruling appears to be in line with the majority of jurisdictions that have considered the issue. See e.g., State v. Ralph, 6 S.W.3d 251 (Tenn.1999) ("separate convictions for burglary and theft of same automobile do not violate due process principles; both offenses are defined narrowly by statute and clearly require proof of different elements, not every theft includes burglary, and theft is one of statutorily listed felonies that will support burglary conviction"); State v. Pantusco, 330 N.J.Super. 424, 750 A.2d 107 (App.Div. 2000) (holding that burglary and theft of automobile are separate offenses), certif. Denied, 165 N.J. 527, 760 A.2d 781 (2000); State v. Brown, 188 Ariz. 358, 936 P.2d 181 (App.1997) (holding that even if defendant changes plans and decides not to steal the car he has entered with such an intent, he has still committed the crime of burglary; if he takes the additional step of starting the vehicle and driving it away, he has completed the crime of auto theft); see also State v. McGruder, 123 N.M. 302, 940 P.2d 150 (1997) (holding that no double jeopardy problem existed for dual convictions of armed robbery and unlawful taking of a motor vehicle).

AFFIRMED.

HARRIS, J., concurs.

SHARP, W., J., dissents with opinion.

SHARP, W., J., dissenting.

I respectfully dissent because, in my view, the crime of armed carjacking subsumes and encompasses the crime of burglary of a conveyance with an assault in this case and thus there should not be dual convictions for both crimes. I would base this decision on section 775.021(4), Florida Statutes, which incorporates the Blockburger test⁶ governing federal double jeopardy jurisprudence not the constitutional provision prohibiting double jeopardy.

As we have pointed out in prior cases, it is not clear that the Florida Supreme Court or the United States Supreme Court has held that double jeopardy bars dual prosecutions and punishments for the same crime in one criminal prosecution, thus leaving the issue to the intent of the particular state's legislature. See Jones v. Thomas, 491 U.S. 376, 109 S.Ct. 2522, 105 L.Ed.2d 322 (1989); Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); Crawford v. State, 662 So.2d 1016, 1017 (Fla. 5th DCA 1995), receded from on other grounds, State v. Reardon, 763 So.2d 418 (Fla. 5th DCA 2000); Turner v. State, 661 So.2d 93 (Fla. 5th DCA 1995); Wilkins v. State, 543 So.2d 800, 802 (Fla. 5th DCA) (Sharp, W., J., concurring), rev. denied, 554 So.2d 1170 (Fla.1989); Gordon v. State, 457 So.2d 1095, 1098 (Fla. 5th DCA 1984), approved, 478 So.2d 1063 (Fla.1985).

Our Legislature has expressed its intent in section 775.021(4), Florida Statutes:

(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.

As set forth in the majority opinion, this case involved a bare-bones carjacking. Upon getting out of her car, the victim was confronted by the appellant, who pointed what appeared to be a gun at her and demanded she give him the keys to her car. She did so, and he got into the car and drove away.

If application of the Blockburger test rests solely on a sterile listing of statutory elements of the two crimes charged, then the majority opinion is correct. If, however, the application goes beyond and includes elements that must be proved in a given case, then the majority analysis is flawed. The carjacking offense⁷ in this case requires proof of "taking of a motor vehicle ... from the person or custody of another...." And, in this case with an assault (use of the apparent gun). The offense of burglary of a conveyance with an assault⁸ requires proof of "entering ... a conveyance with the intent to commit an...