Hudgins v. Wainwright
| Decision Date | 08 February 1982 |
| Docket Number | No. 81-723-CIV-EPS.,81-723-CIV-EPS. |
| Citation | 530 F. Supp. 944 |
| Parties | John HUDGINS, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, Respondent. |
| Court | U.S. District Court — Southern District of Florida |
John Hudgins, pro se.
Theda R. James, Miami, for respondent.
John Hudgins has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, attacking a forty-five year sentence imposed by the Circuit Court of the Eleventh Judicial Circuit of Dade County, Florida on January 15, 1979. Sentence was imposed following a determination that the Petitioner had violated the terms of his probation. Petitioner initially pled guilty to the crimes of aggravated battery, unlawful possession of a firearm while engaged in a criminal offense and unlawful possession of a firearm by a convicted felon. At the time, Petitioner was serving three concurrent terms of probation of seven years each pursuant to plea negotiations of September 6, 1978. Following the revocation of his probation, consecutive terms of imprisonment of fifteen (15) years were imposed for each count.
As grounds for relief, Petitioner alleges the following:
This petition is now being reviewed on rehearing. Initially, in an order dated July 14, 1981, the court ordered dismissal without prejudice because of an unexhausted claim regarding the effective assistance of counsel. However, the Petitioner has informed this Court that he wishes to abandon his claim of ineffective assistance of counsel. Therefore, the Petitioner has exhausted his state judicial remedies with regard to his remaining claims and the court may proceed to the merits.
Petitioner's first allegation is that the state failed to uphold its plea bargain agreement when he was sentenced to consecutive terms of imprisonment following the revocation of his probation. He contends that his plea of nolo contendere was induced by a guarantee of concurrent sentences.
Review of the transcript of the plea proceedings held on September 6, 1978, indicates that pursuant to the negotiations, the Petitioner was sentenced to concurrent terms of probation. However, on January 15, 1979, he was found guilty of violating the terms of his probation and the consecutive prison terms were imposed. The transcript of the plea hearing indicates that the trial court judge informed the Petitioner that he would be subject to additional prison time if he violated the terms of his probation. (R. 35). Furthermore, Fla.Stat. § 948.06 provides that following the revocation of probation the court may "impose any sentence which it might have originally imposed before placing the probationer on probation." The Fifth Circuit has validated a similar sentence imposed by a state judge after the defendant violated his bargained-for probation term in Williams v. Wainwright, 650 F.2d 58 (5th Cir. 1981). Therefore, Petitioner's claim is clearly without merit.
Petitioner's second claim presents a substantially more difficult question. He claims that because the elements of the crime of possession of a firearm while committing a felony are part of the same elements necessary to establish aggravated battery, that he should not have been sentenced for both. Fla.Stat. § 784.045 defines aggravated battery as follows:
The use or display of a firearm during the commission of a felony is set forth in Fla. Stat. § 790.07(2):
Whoever, while committing or attempting to commit any felony or while under indictment, displays, uses, threatens, or attempts to use any firearm or carries a concealed firearm is guilty of a felony of the second degree, punishable as provided in s.775.082, s.775.083, and s.775.084.
The Petitioner contends that under the state "single transaction rule" he should have been separately sentenced for Count II of the information.
In Johnson v. State, 366 So.2d 418 (Fla. 1978), the Florida Supreme Court applied the "single transaction rule" to find that a defendant should not have been convicted for displaying a firearm and for robbery. The court held that the display of the firearm itself constituted the necessary element of force or of putting the victim in fear to prove the crime of robbery. The court relied on its earlier decision in Cone v. State, 285 So.2d 12 (Fla.1973) to find that the acts of display or use of a firearm during the commission of a robbery and the crime of robbery were facets of the same transaction which could not support separate sentences.
The Florida Supreme Court found that two offenses were not part of the same transaction where they were temporally distinct. State v. Heisterman, 343 So.2d 1272 (Fla.1977). In that case, the court found that the act of assault with intent to commit murder was completed before the crime of shooting a gun into an occupied dwelling took place. Therefore, the court found that the crimes were separate and did not violate state law.
Although the Petitioner in the instant case, has raised his claim under state and not federal constitutional law, the federal constitutional standard to establish double jeopardy in violation of the Fifth Amendment is similar to the state's "single transaction rule" so as to permit this Court to consider the Petitioner's claim as one involving double jeopardy. The prohibition against double jeopardy as applied to the states through the Fourteenth Amendment, protects against multiple punishment for the same offense. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The prohibition against double jeopardy applies where a defendant is charged twice for the same offense. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The test for determining when such a violation of the right against double jeopardy occurs was set forth by the Fifth Circuit in United States v. Smith, 574 F.2d 308, 310 (5th Cir. 1978):
The classic test for determining whether two offenses are "the same" for double jeopardy purposes was announced in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Blockburger requires that each offense be examined to ascertain "whether each provision requires proof of an additional fact which the other does not." Id. at 304, 52 S.Ct. at 182; Brown v. Ohio, 432 U.S. 161, 168, 97 S.Ct. 2221 2226, 53 L.Ed.2d 187 (1977); Jeffers v. United States, 432 U.S. 137, 151, 97 S.Ct. 2207 2216, 53 L.Ed.2d 168 (1977). Under the Blockburger test, also known as the "same evidence" rule, it is possible for a single criminal act or conspiracy to give rise to multiple separate offenses. See Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958) (); United States v. Houltin, 525 F.2d 943 (5th Cir. 1976) (), vacated on other grounds sub nom. Croucher v. United States, 429 U.S. 1034, 97 S.Ct. 725, 50 L.Ed.2d 745 (1977). Application of the test focuses on the statutory elements of the offenses charged. "If each requires proof of a fact the the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes." Iannelli v. United States, 420 U.S. 770, 785 n.17, 95 S.Ct. 1284, 1294 n.17, 43 L.Ed.2d 616 (1975).
Application of the Blockburger test to the instant case, indicates that the sentencing for both aggravated battery and the display or use of a firearm in the commission of a felony is in violation of the double jeopardy prohibition. Whether under state or federal law, it appears that the facts needed to prove the crime of aggravated battery and the facts needed to prove the display or use of a firearm in the commission of a felony are inseparable. The Court notes that while Count II of the Information charging the Petitioner, states that he displayed the firearm while committing the felony, the proffer of facts at the plea hearing on September 6, 1978 indicates that he did not merely display but actually used the firearm to shoot the victim, Aldore Anderson. Because the use of the firearm against the victim and the use of deadly force to commit an aggravated battery in this case were neither temporally, nor legally or factually distinct, this court finds that the dual sentencing for aggravated battery and for use of a firearm during the commission of a felony violated the Fifth Amendment prohibition against double jeopardy.
Review of the first two counts of the Information indicate that the facts which the state needed to prove under Count II are already incorporated in Count I:
To continue reading
Request your trial
-
Cannon v. Jones, Case No.: 3:14cv348/MCR/EMT
...even if the length of the final sentence is an increase over that originally imposed. 650 F.2d at 61-62; see also Hudgins v. Wainwright, 530 F. Supp. 944 (S.D. Fla. 1981). Here, the state court determined that Petitioner's sentence imposed upon her for violating her probation did not exceed......
-
State v. Collins
...1131, 1134-35 (5th Cir. 1994) (upholding consecutive 60-month sentence for unlawful possession of a firearm); Hudgins v. Wainwright, 530 F. Supp. 944, 948-49 (S.D. Fla. 1981) (upholding consecutive 15-year sentence for unlawful possession of a firearm), aff'd, 715 F.2d 578 (11th Cir. 1983),......
-
State v. Collins
...1131, 1134-35 (5th Cir. 1994) (upholding consecutive 60-month sentence for unlawful possession of a firearm); Hudgins v. Wainwright, 530 F.Supp. 944, 948-49 (S.D. Fla. 1981) (upholding consecutive 15-year sentence for unlawful possession of a firearm), aff'd, 715 F.2d 578 (11th Cir. 1983), ......