Lopez-Vazquez v. State

• Decision Date: 16 June 2006
• Docket Number: No. 5D04-4250.,5D04-4250.
• Citation: Lopez-Vazquez v. State, 931 So.2d 231 (Fla. App. 2006)
• Parties: Wilson Javier LOPEZ-VAZQUEZ, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 231

931 So.2d 231

Wilson Javier LOPEZ-VAZQUEZ, Appellant, v.STATE of Florida, Appellee.

No. 5D04-4250.

District Court of Appeal of Florida, Fifth District.

June 16, 2006.

James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.

SAWAYA, J.

The issue we must resolve is whether convictions for attempted second-degree murder, shooting into an occupied vehicle, and shooting from a vehicle, all arising out of the same criminal episode, constitute a violation of double jeopardy principles.

There is no dispute between the parties that all three offenses arise out of a single criminal episode.Therefore, a discussion of the particular facts and circumstances that comprise that episode is not necessary to resolve the issue before us.Suffice it to say that an incident of road rage escalated into extreme acts of violence, culminating in the attempt by Vazquez to take the life of the victim.As Vazquez sat in his vehicle, he fired his weapon into the vehicle occupied by the victim, wounding the victim in the arm.Vazquez was convicted and sentenced for the three offenses previously mentioned, which he now claims violate his right not to be placed in jeopardy more than once for the same criminal offense.Although Vazquez did not timely object to the multiple convictions and sentences, that error is not a jurisdictional impediment to appellate review because "[a] violation of double jeopardy constitutes fundamental error which may be raised for the first time on appeal."Vasquez v. State,778 So.2d 1068, 1070(Fla. 5th DCA2001).Because we address a legal issue, the standard of review that governs our analysis is de novo.SeeState v. Florida,894 So.2d 941(Fla.2005).

Criminal defendants are protected from multiple convictions and punishments for the same offense by both the federal and state constitutions.SeeU.S. Const. amend. V.;Art. I, § 9, Fla. Const.Our analysis of double jeopardy issues must be directed by legislative intent, State v. Anderson,695 So.2d 309, 311(Fla.1997), and so the prevailing standard for "determining the constitutionality of multiple convictions . . . for offenses arising from the same criminal [episode] is whether the [L]egislature `intended to authorize separate punishments for the two crimes.'"M.P. v. State,682 So.2d 79, 81(Fla.1996)(quotingAlbernaz v. United States,450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275(1981)).The absence of a clear statement of legislative intent to authorize separate punishments for crimes that arise from one criminal episode requires application of section 775.021(4), Florida Statutes(2005), to determine whether separate offenses exist.M.P.;Gaber v. State,684 So.2d 189(Fla.1996).

Section 775.021(4) eschews the rule of lenity, which compels strict construction of criminal statutes in favor of the accused,¹ by requiring that separate crimes committed in the course of one criminal episode be punished separately.§ 775.021(4), Fla. Stat(2005);see alsoGordon v. State,780 So.2d 17, 24(Fla.2001)("Subsequently, the Legislature amended section 775.021, explicitly enunciating its intent that crimes be separately punished without regard to the rule of lenity.").Separate crimes are committed "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."§ 775.021(4)(a), Fla. Stat.(2005).Compliance with this component of the analysis generally requires a rather straightforward examination of the statutory elements of each offense.SeeJohnson v. State,689 So.2d 1065(Fla.1997);Gaber,684 So.2d at 190-91;State v. Maxwell,682 So.2d 83, 84(Fla.1996);State v. Johnson,676 So.2d 408(Fla.1996);Hamrick v. State,648 So.2d 274(Fla. 4th DCA1995).This methodology typically bears the moniker "Blockburger test,"² and its primary virtue is that it can be easily applied to produce consistent and predictable results.

There are, however, three statutory exceptions that apply if the crimes do not have identical elements, one of which is a reiteration of the Blockburger test.§ 775.021(4)(b), Fla. Stat.(2005).³Reduced to its essence, section 775.021(4) provides that convictions and sentences for offenses committed in one criminal episode violate double jeopardy when the offenses have identical elements or, having different elements, they are degree variants of the same offense, or one or more are lesser included offenses and subsumed in the greater offense.Hence, the analysis under section 775.021(4) requires that we first determine whether the offenses have identical elements and if they do, the analysis ends and one offense must be eliminated.See Gordon.If they do not, we must proceed to determine whether any of the three exceptions applies.If any exception applies, elimination of one offense is required to comply with the double jeopardy protections.Id.

We discern no clear legislative statement that separate convictions and punishments for the three offenses committed by Vazquez are intended, so we proceed with our analysis under section 775.021(4), beginning first with examination of the elements of each offense to determine identity.Attempted second-degree murder, as proscribed by sections 782.04(2)and777.04, Florida Statutes (2005),⁴ requires proof of two elements: 1) Vazquez intentionally committed an act that would have resulted in the death of the victim, except that someone prevented the defendant from killing the victim or the defendant failed to do so; and 2) the act was imminently dangerous to another and demonstrated a depraved mind without regard for human life.Shooting into an occupied vehicle in violation of section 790.19, Florida Statutes(2005), requires proof of three elements: 1) Vazquez shot a firearm; 2) he did so at, within, or into a vehicle of any kind that was being used or occupied by any person; and 3) the act was done wantonly or maliciously.Shooting from a vehicle in violation of section 790.15(2), Florida Statutes(2005), requires proof of two elements: 1) Vazquez knowingly and willfully discharged a firearm from a vehicle; and 2) at the time he discharged the firearm, Vazquez was within 1000 feet of any person.

Our examination of these statutory elements reveals that each crime contains an element the others do not.Comparing the two shooting crimes with the crime of attempted second-degree murder, the former requires the element of shooting with a firearm from a vehicle or into a vehicle, but the latter does not.SeeState v. Hines,695 So.2d 747, 748(Fla. 1st DCA1997)("Shooting into a conveyance thus likewise contains an element, shooting, not required by attempted murder, which does not require a firearm.Separate convictions and sentences for attempted murder and for shooting into a conveyance therefore are valid, despite arising from the same criminal episode.").The crime of attempted second-degree murder requires the State to prove the element that the act would have resulted in the death of the victim; there is no similar requirement in the shooting statutes.Comparison of the elements of just the two shooting offenses reveals that each contains different elements: one requires shooting into a vehicle occupied by another person and the other requires shooting from a vehicle by a person who is within 1000 feet of another person.Having thus administered the Blockburger test, the results reveal that double jeopardy protections afforded Vazquez have not been violated unless one of the statutory exceptions applies and we note, parenthetically, that Vazquez does not contend otherwise.Vazquez argues that the convictions cannot stand because each is a degree variant of the same core offense.

In determining whether crimes are degree variants of the same core offense, the primary evil that each statute was intended to address must be examined.Gordon;Austin v. State,852 So.2d 898, 901(Fla. 5th DCA2003)("Following the format laid out in Gordon,we look to the evil which each statute was intended to prevent.");Mitchell v. State,830 So.2d 944(Fla. 5th DCA2002), review denied,845 So.2d 892(Fla.2003).The evil that is being addressed determines whether the offenses share "the same core offenses categorized as theft, battery, possession of contraband or homicide."Mitchell,830 So.2d at 947;see alsoGordon,780 So.2d at 21, 23(recognizing Justice Kogan's observation in his concurring opinion in Sirmons v. State,634 So.2d 153, 155(Fla.1994), that "theft, battery, possession of contraband and homicide are the type of core offenses upon which other criminal charges are based" and concluding that "attempted first-degree murder punishes the intent to kill, whereas aggravated battery causing great bodily harm punishes the act of seriously injuring another person").

Vazquez neither asserts what core offense these convictions share nor explains what primary evil is being addressed by each statute.Regardless, as previously indicated, precedent tells us that "the primary evil of attempted second-degree murder is the potential of the defendant's act to cause death."Florida,894 So.2d at 949.Indeed, the standard jury instruction for attempted second-degree murder provides that the State must prove two elements beyond a reasonable doubt: 1) that the defendant intentionally committed an act which would have resulted in the death of the victim except that someone prevented the defendant from killing the victim or the defendant failed to do so; and, 2) that the act was imminently dangerous to another and demonstrated a depraved mind without regard for human life.Fla. Std. Jury Instr.(Crim.)§ 6.4., at 1744(emphasis added).We believe that the primary evil addressed by sections 790.19and790.15, which proscribe shooting...