Mckinney v. State

• Decision Date: 16 June 2011
• Docket Number: No. SC10–140.,SC10–140.
• Citation: 66 So.3d 852
• Parties: Horace McKINNEY, Petitioner,v.STATE of Florida, Respondent.
• Court: Florida Supreme Court

66 So.3d 852

Horace McKINNEY, Petitioner,

v.STATE of Florida, Respondent.

No. SC10–140.

Supreme Court of Florida.

June 16, 2011.

James S. Purdy, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, FL, for Petitioner.Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, FL, for Respondent.PER CURIAM.

This case is before the Court for review of the decision of the Fifth District Court of Appeal in McKinney v. State, 24 So.3d 682 (Fla. 5th DCA 2009). The district court certified that its decision is in direct conflict with the decision of the Fourth District Court of Appeal in Shazer v. State, 3 So.3d 453 (Fla. 4th DCA 2009). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. Because we find our decision in Valdes v. State, 3 So.3d 1067 (Fla.2009), controlling, we disapprove of the Fourth District's decision in Shazer and approve the Fifth District's decision in McKinney.

FACTS

The facts in this case are not in dispute. On the evening of September 11, 2007, Horace McKinney approached Bernard Vivandieu in his driveway. Vivandieu had recently picked up a money wire transfer of $290.30 from Western Union and McKinney had followed him home. McKinney approached him, pointing a gun to his side, and asked for the money. Vivandieu stated he had no money, but McKinney eventually found the money where Vivandieu had placed it in the car between the seats and took it and Vivandieu's cell phone. McKinney was convicted of grand theft and robbery with a firearm for the incident.¹ For the grand theft charge, McKinney was sentenced to 237 days in the Orange County Jail and given credit for the 237 days he spent incarcerated awaiting imposition of the sentence. On the robbery charge, McKinney received twenty-five years, ten of which was the mandatory minimum sentence. On appeal to the Fifth District, McKinney argued that his dual convictions violated the prohibition against double jeopardy. The Fifth District disagreed and affirmed the convictions, certifying conflict with Shazer.

STANDARD OF REVIEW

“A double jeopardy claim based upon undisputed facts presents a pure question of law and is reviewed de novo.” Pizzo v. State, 945 So.2d 1203, 1206 (Fla.2006) (citing State v. Florida, 894 So.2d 941, 945 (Fla.2005)).

MERITS

McKinney was convicted for violations of sections 812.13(2)(a) and 812.014(2)(c)(1), Florida Statutes (2007), and alleges that these convictions violate the proscription against double jeopardy. “Absent a clear statement of legislative intent to authorize separate punishments for two crimes, courts employ the Blockburger [ ²] test, as codified in section 775.021, Florida Statutes, to determine whether separate offenses exist.” McKinney, 24 So.3d at 683 (footnote omitted). There is no constitutional prohibition against multiple punishments for different offenses arising out of the same criminal transaction as long as the Legislature intends to authorize separate punishments. Valdes, 3 So.3d at 1069 (citing Hayes v. State, 803 So.2d 695, 699 (Fla.2001)); Borges v. State, 415 So.2d 1265, 1267 (Fla.1982) (“The Double Jeopardy Clause ‘presents no substantive limitation on the legislature's power to prescribe multiple punishments,’ but rather, ‘seeks only to prevent courts either from allowing multiple prosecutions or from imposing multiple punishments for a single, legislatively defined offense.’ ”) (quoting State v. Hegstrom, 401 So.2d 1343, 1345 (Fla.1981)).

In its entirety, section 775.021(4) provides:

(a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes of this subsection, 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.

(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.

§ 775.021(4), Fla. Stat. (2009). McKinney alleges that each of the exceptions provided in paragraph (b) apply to his convictions. We disagree.

Originally, we interpreted section 775.021(4)(b) to exempt offenses that arose from the same “core offense” or “primary evil,” but in Valdes, we determined that this line of reasoning was no longer tenable. McKinney first alleges that his offenses violate double jeopardy because they are essentially degree variants of one another as described in section 775.021(4)(b) 2. Under Valdes, this argument can only be valid if the statutes themselves provide such a classification.

After a review of the conflict issue, we find our decision in Valdes controlling. In Valdes, we considered whether dual convictions for discharging a firearm from a vehicle within 1000 feet of a person in violation of section 790.15(2), Florida Statutes (2003), and shooting into an occupied vehicle in violation of section 790.19, Florida Statutes (2003), arising from the same criminal episode, violated double jeopardy. Valdes, 3 So.3d at 1068. Because we concluded that the prior double jeopardy “primary evil” standard proved difficult to apply and strayed from the plain language of the statute, we adopted the approach provided in Justice Cantero's special concurrence in State v. Paul, 934 So.2d 1167 (Fla.2006). Valdes, 3 So.3d at 1068. In so doing, we held “that section 775.021(4)(b)(2), Florida Statutes (2008), prohibits ‘separate punishments for crimes arising from the same criminal transaction only when the statute itself provides for an offense with multiple degrees.’ ” Valdes, 3 So.3d at 1068 (quoting Paul, 934 So.2d at 1176 (Cantero, J., specially concurring)).

In Valdes, as in the instant case, the defendant was convicted of two crimes, codified in separate statutes, arising from a single occurrence. Valdes fired shots from his vehicle into a vehicle standing next to him at a red light. Valdes, 3 So.3d at 1068. As in the instant case, Valdes argued that the convictions violated double jeopardy alleging that the offenses were degrees of the same offense. As in the instant case, the crimes each required a proof of an element that the other did not. Id. at 1071. Under the “primary evil” line of cases, the convictions would have been considered degree variants of each other. However, we concluded “that the ‘primary evil’ test defies legislative intent because it strays from the plain meaning of the statute.” Id. at 1075. We further stated:

By applying the “primary evil” gloss to the second statutory exception, we have added words that were not written by the Legislature in enacting the double jeopardy exceptions of section 775.021(4) and specifically subsection (4)(b)(2). Rather, this exception simply states that there is a prohibition against multiple punishments for offenses which are “degrees of the same offense.” There is no mention of “core offense” and certainly no mention of “primary evil.” Further, there is no rule of construction that would compel this Court to require such an analysis based on constitutional considerations. There is no constitutional prohibition against narrowly interpreting double jeopardy exceptions precisely because there is no constitutional prohibition against multiple punishments for different offenses arising out of the same criminal episode, as long as the Legislature intends such punishments.

Id. at 1075–76 (citations omitted). Accordingly, we adopted the approach proposed by Justice Cantero in Paul.

Valdes, 3 So.3d at 1076 (quoting Paul, 934 So.2d at 1176 (Cantero, J., specially concurring)). In so doing, we receded from Gordon v. State, 780 So.2d 17 (Fla.2001), Florida, and Paul.

Valdes, 3 So.3d at 1076–77 (finding the “primary evil” test unworkable).³ Ultimately, we concluded that “the only offenses that fall under subsection (4)(b)2., are those that constitute different degrees of the same offense, as explicitly set forth in the relevant statutory sections.” Id. at 1077.

As this holding was applied to Valdes' convictions under sections 790.19 and 790.15, we found that the violations did “not satisfy the second statutory exception because the two offenses are found in separate statutory provisions; neither offense is an aggravated form of the other; and they are clearly not degree variants of the same offense.” Valdes, 3 So.3d at 1077. In contrast, we noted that sections 790.15(1), 790.15(2), and 790.15(3) were explicitly degree variants of the same offense. Valdes, 3 So.3d at 1077–78. As we held in Valdes, here there is no question that the Legislature did not expressly provide that robbery and grand theft are degree variants of the same offense. Despite this bright-line rule, McKinney argues that we may wish to follow the Fourth District's decision in Shazer, which provides that grand theft is a degree variant of robbery. We decline to do so.

Ignoring this Court's holding in Valdes, the Fourth District Court of Appeal has found that dual convictions for robbery and grand theft violate double jeopardy protection. See Shazer, 3 So.3d at 454 (relying on Ingram v. State, 928 So.2d 1262 (Fla. 4th DCA 2006) to find dual convictions for robbery with a deadly weapon and grand theft violated double jeopardy where the same property formed the basis for both convictions).⁴ In Ingram, the Fourth District...