Harper v. State

• Decision Date: 13 June 1980
• Docket Number: No. MM-87,MM-87
• Citation: 386 So.2d 808
• Parties: Robert M. HARPER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 808

386 So.2d 808

Robert M. HARPER, Appellant, v. STATE of Florida, Appellee.

No. MM-87.

District Court of Appeal of Florida, First District.

June 13, 1980.

Rehearings Denied Aug. 19, 1980.

Michael J. Minerva, Public Defender, Louis G. Carres and Margaret Good, Asst. Public Defenders, for appellant.

Jim Smith, Atty. Gen., Miguel A. Olivella, Jr., Asst. Atty. Gen., for appellee.

SHAW, Judge.

Harper, charged with robbery and first-degree murder of Earl Phillip Guy, ¹ was convicted of aggravated assault and third-degree murder ² during the commission of which he carried, displayed and used a firearm. He was adjudicated guilty and sentenced to thirty years imprisonment for the murder and given a five-year concurrent sentence for the aggravated assault.

On its face, third-degree murder is a felony of the second-degree punishable by imprisonment for a term not exceeding fifteen years. Section 775.082, Florida Statutes (1977). It is apparent that the trial judge took into consideration Harper's use of a firearm to enhance the maximum sentence. ³ The sole issue before us is whether Harper has been twice punished for the same offense. We conclude that the judge's use of Florida's enhancement statute, in this instance, resulted in double punishment for the same criminal act.

In charging the jury the judge defined aggravated assault, a lesser included offense of robbery, as follows:

As for the crime of aggravated assault, it is a crime for one person to commit an aggravated assault upon another. An aggravated assault is an assault upon another made with a deadly weapon but without an intent to kill.

An assault is an intentional unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so and doing some act which creates a well-founded fear in such other person that such violence is imminent.

The essential elements of this offense which must be proved beyond a reasonable doubt before there can be a conviction in this case are that: First, that Robert Harper did make an assault upon Earl Aggravated assault, which is a third degree felony, is punishable by imprisonment in the state penitentiary not exceeding five years or by fine not exceeding $5,000 or both fine and imprisonment or the Court may place the Defendant on probation.

Phillip Guy; and second, that the assault was made with a deadly weapon, and a deadly weapon, as I have indicated, is any weapon in which the manner in which it is used or threatened to be used is likely to produce death or great bodily harm.

We note that aggravated assault is also an assault with an intent to commit a felony. ⁴ This charge, however, was not given to the jury. The conclusion is inescapable, therefore, that Harper's use of a gun during the commission of the assault resulted in the aggravated assault conviction which in turn formed the basis for the felony murder. ⁵

The Supreme Court of Florida, in State v. Pinder, supra, held that where there was no evidence of premeditation upon which a jury could have based its verdict of guilty of first-degree murder the underlying felony was indispensable to the conviction. The defendant therefore could not be convicted of both first-degree murder and the felony which served as the basis for the murder conviction. Harper, like Pinder, was convicted of murder and the underlying felony upon which the murder conviction was based. Unlike Pinder, Harper chose not to appeal the multiple convictions, but chose only to attack the legality of the enhanced sentence on the ground that he was being twice punished for the same criminal act. Section 775.087(1), Florida Statutes provides that whenever a person is charged with a felony during the commission of which he displays, uses, threatens, or attempts to use any weapon or firearm, the felony for which he is charged shall be reclassified. The Legislature wisely carved out an exception, however, by providing that if the use of a weapon or firearm is an essential element of the felony charged, the felony shall not be reclassified. Harper seems to fall between the cracks, for use of a weapon or firearm is not necessarily an essential element of first-degree murder and § 775.021(4), Florida Statutes, which precludes separate sentencing for lesser included offenses, affords him little solace in that his enhanced sentence does not result from his conviction of a lesser included offense, but rather from his use of a gun in the perpetration of murder. Yet, absent use of the gun, he would not have been convicted of felony murder for which he was given fifteen years. Can the judge now enhance his sentence another fifteen years by revisiting his use of the gun? Pinder appears to speak to this issue when it quotes, with approval, the argument that the Constitution was designed as much to prevent the criminal from being twice punished for the same offense as for being twice tried for it. The enhanced sentence in the case at bar results in impermissible multiple punishment for the same offense and falls within the constitutional prohibition against double jeopardy. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). See also Blockburger v. U. S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); and Johnson v. State, 366 So.2d 418 (Fla.1978). The enhanced sentence of fifteen years is accordingly vacated.

ROBERT P. SMITH, Jr., J., concurs.

WENTWORTH, J., specially concurs, with opinion.

WENTWORTH, Judge, specially concurring.

I concur in the result reached by the majority for the reason that § 775.087(1), Florida Statutes, is expressly inapplicable Without deciding the constitutional issue presented, I note that § 775.087(1) does not create a separate offense, but merely enhances the penalty for the original crime, due to aggravating circumstances. I also note that this case involves but a single prosecution, rather than multiple prosecutions. Various federal decisions cast doubt upon the applicability of the double jeopardy clause in such circumstances. See, e. g., Whalen v. U. S., 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980) (note 3, concurring opinion by J. Blackmun); Simpson v. U. S., 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978) (dissenting opinion); U. S. v. Rodriguez, 612 F.2d 906 (5th Cir. 1980). See also, Washington v. Mayo, 91 So.2d 621 (Fla.1957); Thorpe v. State, 377 So.2d 221 (Fla. 1st DCA 1979).

when "the use of a weapon or firearm is an essential element" of the substantive offense. Although a weapon is not an essential element of the substantive offense of felony murder in all cases, it is an essential element of the felony murder offense charged and proved in this case. ¹ Appellant's felony murder conviction was predicated upon the underlying felony of aggravated assault, established by proof of an assault with a firearm. § 784.021(1)(a), Florida Statutes. The use of a weapon or firearm is an essential element of § 784.021(1)(a); such an aggravated assault is already an "enhanced penalty" offense, and § 775.087(1) may not be applied to enhance the sentence for a violation of § 784.021(1)(a). Williams v. State, 358 So.2d 187 (Fla. 4th DCA 1978). Since it was necessary to prove such...