Houk v. State

• Decision Date: 29 April 2021
• Docket Number: No. 1D20-1816,1D20-1816
• Citation: 316 So.3d 788
• Parties: Crystal HOUK, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

316 So.3d 788

Crystal HOUK, Appellant,

v.STATE of Florida, Appellee.

No. 1D20-1816

District Court of Appeal of Florida, First District.

April 29, 2021

Jessica J. Yeary, Public Defender, and Tyler K. Payne, Assistant Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee.

Lewis, J. Appellant Crystal Houk challenges her convictions and sentences for animal cruelty and aggravated animal cruelty on several grounds, only one of which merits discussion. Appellant contends that because animal cruelty and aggravated animal cruelty are degree variants under section 775.021(4)(b)2., Florida Statutes (2019), her dual convictions for those crimes violate double jeopardy. We agree for the reasons that follow and, accordingly, reverse Appellant's conviction for animal cruelty.

BACKGROUND

Appellant was charged with aggravated animal cruelty under section 828.12(2), Florida Statutes, (Count 1) and animal cruelty under section 828.12(1), Florida Statutes, (Count 2) following the death of her dog, Gracie May, on August 22, 2019. The evidence at trial established that, on a hot and humid day, Appellant left Gracie in her car in the parking lot, with the windows closed and without any water, while she spent over an hour in Walmart. Appellant had pressed a PVC pipe against the gas pedal to keep the car accelerating, knowing there was a problem with the air conditioner. Store employees were eventually alerted and, upon gaining entry into the vehicle, they discovered the air conditioner was blowing hot air. Gracie was in great distress at that point, panting heavily and trying to catch her breath. About fifteen minutes later, she started seizing and passed away. An animal control officer testified that Gracie died of a heat stroke

. Postmortem, the dog's internal temperature was so elevated that the thermometer displayed a reading of "H," indicating a temperature above 109.9 degrees Fahrenheit. The animal control officer, who investigates animal cruelty cases, testified that it was not a quick death and Gracie suffered.

The jury found Appellant guilty of both offenses as charged, and the trial court adjudicated her guilty and sentenced her to concurrent terms of thirty-six months of probation on Count 1 and twelve months of probation on Count 2, each with a condition that she serve thirty days in jail. This appeal followed.

ANALYSIS

A double jeopardy violation constitutes fundamental error that may be raised for the first time on appeal. Johnson v. State , 150 So. 3d 214, 214 (Fla. 1st DCA 2014). We review de novo double jeopardy claims based on undisputed facts. State v. Maisonet-Maldonado , 308 So. 3d 63, 66 n.2 (Fla. 2020). Both the United States and Florida Constitutions contain double jeopardy clauses that prohibit multiple prosecutions, convictions, and punishments for the same criminal offense. Id. ; see also U.S. Const. amend. V ; Art. 1, § 9, Fla. Const. However, the double jeopardy clauses do not prohibit multiple punishments for different offenses arising out of the same criminal transaction if the Legislature intended to authorize separate punishments. Maisonet-Maldonado , 308 So. 3d at 66.

" ‘[A]bsent an explicit statement of legislative intent to authorize separate punishments," courts determine whether separate punishments for two crimes arising out of a single criminal transaction violate double jeopardy by employing the Blockburger^* "same elements" test, which is codified in section 775.021(4)(a), Florida Statutes, and provides 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." Id. at 66–67. If the offenses are separate, courts next look to the three exceptions to the Blockburger test set forth in section 775.021(4)(b), Florida Statutes. If one of the exceptions applies, then the dual convictions are barred. Id. at 67, 69 ; see also Tambriz-Ramirez v. State , 248 So. 3d 1087, 1094 (Fla. 2018). Section 775.021(4)(b), Florida Statutes (2019), provides:

[(4)] (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.

In applying the provisions of section 775.021, a double jeopardy analysis must be conducted without regard to the charging document or the proof adduced at trial and must, instead, involve a strict examination of "the statutory elements and the entire range of conduct proscribed" by the statutes. Tambriz-Ramirez , 248 So. 3d at 1094 ; see also Maisonet-Maldonado , 308 So. 3d at 68, 71.

Turning to the offenses at issue, section 828.12, Florida Statutes (2019), is titled "Cruelty to animals" and provides in relevant part as follows:

(1) A person who unnecessarily overloads, overdrives, torments, deprives of necessary sustenance or shelter, or unnecessarily mutilates, or kills any animal, or causes the same to be done, or carries in or upon any vehicle, or otherwise, any animal in a cruel or inhumane manner, commits animal cruelty, a misdemeanor of the first degree, punishable as provided in s. 775.082 or by a fine of not more than $5,000, or both.

(2) A person who intentionally commits an act to any animal, or a person who owns or has the custody or control of any animal and fails to act, which results in the cruel death, or excessive or repeated infliction of unnecessary pain or suffering, or causes the same to be done, commits aggravated animal cruelty, a felony of the third degree, punishable as provided in s. 775.082 or by a fine of not more than $10,000, or both.

(a) A person convicted of a violation of this subsection, where the finder of fact determines that the violation includes the knowing and intentional torture or torment of an animal that injures, mutilates, or kills the animal, shall be ordered to pay a minimum mandatory fine of $2,500 and undergo psychological counseling or complete an anger management treatment program.

(b) A person convicted of a second or subsequent violation of this subsection shall be required to pay a minimum mandatory fine of $5,000 and serve a minimum mandatory period of incarceration of 6 months. In addition, the person shall be released only upon expiration of sentence, is not eligible for parole, control release, or any form of early release, and must serve 100 percent of the court-imposed sentence. ...

Given such, to prove the crime of animal cruelty, the State must prove that the defendant did one of the following: (a) unnecessarily overloaded, overdrove, tormented, mutilated, or killed an animal; (b) deprived an animal of necessary sustenance or shelter; or (c) carried an animal in or upon a vehicle or otherwise in a cruel or inhumane manner. Fla. Std. Jury Instr. (Crim.) 29.13(a). "Torment" or "a ‘cruel’ manner" "includes every act, omission, or neglect whereby unnecessary or unjustifiable pain or suffering is caused, permitted, or allowed to continue when there is reasonable remedy or relief, except when in the interest of medical science." Id.

To prove the crime of aggravated animal cruelty, the State must prove that (1) the defendant intentionally committed an act to an animal or owned or had custody or control of an animal and failed to act and (2) the defendant's act or failure to act resulted in either excessive or repeated infliction of unnecessary pain or suffering to the animal or the animal's cruel death. Fla. Std. Jury Instr. (Crim.) 29.13. "Cruelty," "[t]orture," or "[t]orment" "includes any act, omission, or negligence whereby unnecessary or unjustifiable pain or suffering is caused, permitted, or allowed to continue when there is reasonable remedy or relief, except when done in the interest of medical science." Id. Aggravated animal cruelty is a general intent crime— section 828.12(2) "does not require intent to be cruel, but only intent to commit the act that results in the cruelty." Lukaszewski v. State , 111 So. 3d 212, 213 (Fla. 1st DCA 2013) ; see also State v. Avella , 275 So. 3d 207, 210 (Fla. 5th DCA 2019) ("[ Section 828.12(2) ] does not require a specific intent to cause pain, but rather punishes an intentional act that results in the excessive infliction of unnecessary pain or suffering.").

Neither animal cruelty nor aggravated animal cruelty has a category one lesser-included offense listed, and the only category two lesser of each offense is attempt. Fla. Std. Jury Instrs. (Crim.) 29.13, 29.13(a). The Fifth District has rejected the argument that the jury should be instructed on animal cruelty as a necessary lesser-included offense of aggravated animal cruelty because the standard jury instructions do not lend support for the argument and "it is conceivable that an animal could be necessarily killed in a cruel manner; this would violate subsection (2) of the statute (felony) but not subsection (1) of the statute (misdemeanor)." King v. State , 12 So. 3d 1271, 1272–73 (Fla. 5th DCA 2009) ; see also Johnson v. State , 293 So. 3d 582, 584 (Fla. 1st DCA 2020) (holding that the appellant was not entitled to an instruction on animal cruelty as a permissive lesser-included offense because the amended information charged aggravated animal cruelty and did not allege the essential elements of animal cruelty).

In light of the preceding authorities, Appellant properly concedes that the offenses of animal cruelty and aggravated animal cruelty satisfy the Blockburger same elements test and do not fall under the identical elements of proof or subsumed-within exceptions of ...