Johnson v. State, Nos. 50592

CourtUnited States State Supreme Court of Florida
Writing for the CourtBOYD; ENGLAND; ALDERMAN; ALDERMAN
Citation366 So.2d 418
PartiesJohn Murry JOHNSON, Petitioner, v. STATE of Florida, Respondent. Dale McCLAIN, Petitioner, v. STATE of Florida, Respondent.
Docket Number51218,Nos. 50592
Decision Date21 December 1978

Page 418

366 So.2d 418
John Murry JOHNSON, Petitioner,
v.
STATE of Florida, Respondent.
Dale McCLAIN, Petitioner,
v.
STATE of Florida, Respondent.
Nos. 50592, 51218.
Supreme Court of Florida.
Dec. 21, 1978.

Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, Miami, for Johnson.

Karen M. Gottlieb, Asst. Public Defender, Miami, for McClain, petitioners.

Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., Miami, and Ira N. Loewy, Asst. Atty. Gen., Miami, for respondent.

Page 419

BOYD, Justice.

The two instant cases are here on certiorari granted to review the decisions of the District Court of Appeal, Third District, in Johnson v. State, 338 So.2d 556 (Fla. 3d DCA 1977) and McClain v. State, 341 So.2d 1075 (Fla. 3d DCA 1977). Since these decisions conflict with our holding in Cone v. State, 285 So.2d 12 (Fla.1973), we have jurisdiction under Article V, Section 3(b)(3), Florida Constitution.

Both petitioners were convicted of the crime of robbery and the crime of display of a firearm during the commission of a felony under Sections 813.011 and 790.07(2), Florida Statutes (1973), respectively. McClain in addition was convicted of breaking and entering a dwelling. Johnson was sentenced to two concurrent five-year terms. McClain was sentenced to three concurrent eight-year terms.

Petitioners then each appealed to the district court, arguing that the trial courts erred in imposing separate sentences for robbery and display of a weapon during the commission of a felony, on the ground that these were in each case different facets of a single criminal transaction. In Johnson, the district court acknowledged our decision in Cone, above, which held that where the crimes of robbery and display of a firearm were facets of the same criminal act, sentence may be imposed only for the more serious offense. But the court concluded that Cone has been effectively overruled by the holdings of this Court in Estevez v. State, 313 So.2d 692 (Fla.1975); Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975) and State v. Ray, 331 So.2d 316 (Fla.1976). In McClain the court upheld the separate sentences, citing only Estevez and Swyers v. State, 334 So.2d 278 (Fla. 3d DCA 1976).

In both cases the record indicates and the evidence showed that the display in question took place in the course of the robbery itself and in fact constituted the element of force, assault, violence, or putting in fear by which the robbery was accomplished. The issue now presented to us is whether one who is convicted under such circumstances both of robbery and display of a firearm during the commission of that robbery can be separately sentenced for each offense. In Cone we answered this question in the negative and we now reaffirm that holding. The decisions in Estevez, Jenkins and Ray indicate that the scope of the "single transaction rule" is quite narrow. But none of these decisions has undermined the authority of Cone in reference to the state of facts dealt with here.

In Estevez, the appellant had been convicted of the crime of breaking and entering with intent to commit a felony, to-wit: grand larceny and the crime of grand larceny. Both crimes were part of the same criminal episode. We held that the two crimes were separate offenses, not "facets" 1 of the same transaction, and that two separate sentences were proper. This decision cannot have overruled Cone even by implication, since the factual dissimilarity calls for the application of a different rule of law. In Estevez the crimes were "separate and distinct." 2 This fact is illustrated by the temporal distinction: the crime of breaking and entering with the requisite criminal intent was complete before the asportation

Page 420

of any property. 3 The crime of grand larceny was commenced thereafter.

In Jenkins the petitioner was convicted of the wrongful possession of two different controlled substances and was separately sentenced for each statutory violation. The two crimes arose out of the same transaction in the sense that they were committed simultaneously, i. e., the two illegal drug substances were possessed simultaneously. This Court held the separate sentences to be proper since the statutory violations were separate and distinct. Under the facts of the situation, either of them could have been committed completely independent of the other. 4

In Ray, the two crimes charged were breaking and entering with intent to commit a felony, to-wit: sexual battery, and attempted sexual battery. As in Estevez, the temporal distinction demonstrated the separate and distinct nature of the two crimes. Ray cannot have overruled Cone any more than Estevez or Jenkins did.

The holdings in Estevez and Jenkins were "reaffirmed" by our decision in Williams v. State, 346 So.2d 67 (Fla.1977). We there adopted the decision of the district court of appeal, 337 So.2d 1038 (Fla. 1st DCA 1976), and specifically overruled Panzavecchia v. State, 311 So.2d 782 (Fla. 3d DCA 1975). The two offenses in Panzavecchia were first degree murder and possession of a firearm by a convicted felon. The district court had held that the convictions were facets of the same transaction and the appellant could only be sentenced for the more grievous offense.

In Williams, the evidence showed that the appellant had shot a store clerk and later the same day, following an argument with another individual, had fired a gun at the individual within an occupied building. He was convicted of assault with intent to commit murder, shooting a firearm within an occupied building, and possession of a firearm by a convicted felon. The appellant argued that he should not have received a separate sentence on the possession charge, on the ground that it was a mere facet of the two criminal transactions. The district court held, at 1038-39:

The crime of possession of a firearm by a convicted felon was completed when...

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28 practice notes
  • Baker v. State, No. 80-748
    • United States
    • Court of Appeal of Florida (US)
    • December 8, 1982
    ...and "aspect" as used in cases involving the now abrogated "single transaction rule". See, e.g., Johnson v. State, 366 So.2d 418 21 See, e.g., State v. Pinder, 375 So.2d 836 (Fla.1979); Harper v. State, 386 So.2d 808 (Fla. 1st DCA 1980). Contra, State v. Lowe, 130 So.2d 2......
  • Borges v. State, No. 60381
    • United States
    • United States State Supreme Court of Florida
    • April 8, 1982
    ...of the criminal elements, at other times at the identity or discreteness of the evidentiary proof. See, e.g., Johnson v. State, 366 So.2d 418 (Fla.1978); State v. Heisterman, 343 So.2d 1272 (Fla.1977); State v. Ray, 331 So.2d 316 (Fla.1976); Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975); ......
  • Hegstrom v. State, No. 77-2480
    • United States
    • Court of Appeal of Florida (US)
    • October 7, 1980
    ...left the conviction undisturbed and set aside the sentence. See, e. g., Stevens v. State, 372 So.2d 1370 (Fla.1979); Johnson v. State, 366 So.2d 418 (Fla.1978); and Cone v. State, 285 So.2d 12 (Fla.1973). See also Gonzalez v. State, 367 So.2d 1008 (Fla.1979). Pre-Pinder District Court decis......
  • Hudgins v. Wainwright, No. 81-723-CIV-EPS.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • February 8, 1982
    ...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 convict......
  • Request a trial to view additional results
28 cases
  • Baker v. State, No. 80-748
    • United States
    • Court of Appeal of Florida (US)
    • December 8, 1982
    ...and "aspect" as used in cases involving the now abrogated "single transaction rule". See, e.g., Johnson v. State, 366 So.2d 418 21 See, e.g., State v. Pinder, 375 So.2d 836 (Fla.1979); Harper v. State, 386 So.2d 808 (Fla. 1st DCA 1980). Contra, State v. Lowe, 130 So.2d 2......
  • Borges v. State, No. 60381
    • United States
    • United States State Supreme Court of Florida
    • April 8, 1982
    ...of the criminal elements, at other times at the identity or discreteness of the evidentiary proof. See, e.g., Johnson v. State, 366 So.2d 418 (Fla.1978); State v. Heisterman, 343 So.2d 1272 (Fla.1977); State v. Ray, 331 So.2d 316 (Fla.1976); Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975); ......
  • Hegstrom v. State, No. 77-2480
    • United States
    • Court of Appeal of Florida (US)
    • October 7, 1980
    ...left the conviction undisturbed and set aside the sentence. See, e. g., Stevens v. State, 372 So.2d 1370 (Fla.1979); Johnson v. State, 366 So.2d 418 (Fla.1978); and Cone v. State, 285 So.2d 12 (Fla.1973). See also Gonzalez v. State, 367 So.2d 1008 (Fla.1979). Pre-Pinder District Court decis......
  • Hudgins v. Wainwright, No. 81-723-CIV-EPS.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • February 8, 1982
    ...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 convict......
  • Request a trial to view additional results

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