Johnson v. State
| Decision Date | 21 December 1978 |
| Docket Number | 51218,Nos. 50592,s. 50592 |
| Citation | 366 So.2d 418 |
| Parties | John Murry JOHNSON, Petitioner, v. STATE of Florida, Respondent. Dale McCLAIN, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
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.
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 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 appellant, a convicted felon, came into possession of a firearm. The other two offenses for which appellant was convicted, assault with intent to commit murder and shooting within an occupied building, necessitated proof of the use of the firearm, which is something more than mere possession.
The petitioners argue that the decisions of this Court dealing with the single transaction rule have established a "temporal distinction" test for determining whether separate sentences are proper where two or more convictions are obtained based on a single criminal episode. For example, in State v. Heisterman, 343 So.2d 1272 (Fla.1977), the respondent had been convicted both of assault with intent to commit murder and of shooting a gun into an occupied dwelling. The two crimes charged clearly arose out of a single criminal transaction, as the defendant, standing outside a dwelling, yelled at the occupants, "Come on out, I'm going to kill you," and then fired at the windows of the house with a pistol. This Court held, at 1273:
The acts constituting assault under the statute were completed when respondent verbally threatened the Simmons, pointed a pistol in their direction, and put them in fear. This crime was proved without evidence that any shots were fired. . . . Respondent's other conviction was based on adequate evidence that several shots were in fact fired into the house around the window area. (citations omitted.)
The state points out that petitioners' "temporal distinction" test does not satisfactorily explain all of the instances where the "single transaction" rule is held applicable. For example, the crimes of possession and sale of the same single quantity of a controlled substance can be temporally distinguished, but convictions thereof have nevertheless been held not separately punishable. Yost v. State, 243 So.2d 469 (Fla. 3d DCA 1971).
On the other hand, there is not necessarily a temporal distinction where one is convicted of the simultaneous illegal possession of two or more distinct controlled substances. As discussed above, however, such separate violations are separately punishable. Jenkins, above.
The state suggests a different test. The inquiry should be, it argues, into whether the proof of one of the offenses charged requires the proof of some fact in addition to what is required to prove the other offense. If so, then the crimes should not be considered mere facets of the same transaction, and should be separately punishable. The state would utilize this type inquiry and argues that since the crime of robbery can be committed either with or without a firearm, the use or display of a firearm is a separate fact which must be proved, in addition to proving all the elements of the crime of robbery, in order to prove display of a firearm during the commission of a felony. The state argues further that the intent of the Legislature controls whether crimes are separately punishable and it is to be assumed that all legislative enactments are to have purpose and effect. The crime of use or display of a firearm during the commission of a felony is always committed in connection with some other crime. The Legislature must not have intended to establish a criminal offense which could never be punished.
What the state's argument neglects to consider is that under the Facts of the situation we consider, as shown by the evidence in each case, the act of displaying the firearm itself constituted the necessary element of force, violence, assault, or putting in fear, needed to prove the crime of robbery. The Cone decision did not say that use or display of a firearm during the commission of a felony could never be separately punished because it would always be involved with another felony. It merely said that the facts proven there showed the "display" offense to have been an element of the other crime charged, robbery. The cases at bar are factually identical and are governed by Cone.
In addition to arguing that the rule of Cone should control their cases, the petitioners also maintain that double...
To continue reading
Request your trial
-
Baker v. State
...like the words "facet" and "aspect" as used in cases involving the now abrogated "single transaction rule". See, e.g., Johnson v. State, 366 So.2d 418 (Fla.1978). 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. Lo......
-
Borges v. State
...discreteness 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......
-
Hegstrom v. State
...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
...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 dis......