Mitchell v. State

• Decision Date: 22 November 2002
• Docket Number: No. 5D01-957.,5D01-957.
• Citation: 830 So.2d 944
• Parties: Courtney MITCHELL, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

830 So.2d 944

Courtney MITCHELL, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.

No. 5D01-957.

District Court of Appeal of Florida, Fifth District.

November 22, 2002.

James B. Gibson, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant/Cross-Appellee.

Richard E. Doran, Attorney General, Tallahassee, and Denise O. Simpson, Assistant Attorney General, Daytona Beach, for Appellee/Cross-Appellant.

PETERSON, J.

Courtney D. Mitchell appeals his convictions for Attempted Second Degree Murder,¹ Attempted Felony Murder,² Attempted Armed Robbery,³ and Conspiracy to Commit Robbery⁴. He received 30-year concurrent sentences for the first three crimes and a 15-year sentence for the fourth along with a 25-year minimum mandatory sentence for the use of a firearm.

Mitchell and two others planned and participated in a robbery on July 23, 1999. The victims, a couple in a parking lot, were randomly selected by the trio as they passed by the site. Mitchell simply walked up to the woman and immediately shot her below her chin at close range with a .22 caliber pistol, without making a demand for her property or uttering a word. The bullet lodged behind her ear, damaged her cranial nerves and left her with lifelong painful injuries affecting her ability to speak and swallow. The use of her left shoulder and neck are also impaired. Mitchell then turned toward the wounded woman's companion and demanded his wallet. When the demand was refused, Mitchell ran away. Only emergency treatment and 15 days in the hospital saved the life of the wounded victim from the potentially fatal gunshot. Mitchell contends that his dual convictions for attempted second degree murder and attempted felony murder are barred by double jeopardy principles. He relies primarily on Gordon v. State, 780 So.2d 17 (Fla.2001) for his conclusion that the trial court impermissibly entered judgments finding him guilty of both attempted second degree murder and attempted felony murder. Although the two specific homicide attempts involved in the instant case were not charged against the defendant in Gordon, the opinion is instructive and the principles discussed are dispositive of the issues in the instant case.⁵

Gordon instructs us that in order to determine whether dual convictions constitute a double jeopardy violation, an analysis requires more than a simple application of the Blockburger⁶ test. This requirement exists because dual convictions meeting the Blockburger test may still be impermissible when the offenses are considered "degree variants of the same core offense." Id. at 22.⁷ A two step inquiry is required to determine whether the second exception of the Blockburger test found in section 775.021(4)(b), Florida Statutes (2001) would allow a dual conviction in the instant case. The two step analysis requires inquiry to determine: (1) whether the crimes constitute separate offenses under Blockburger as codified in section 775.021(4)(a); and, if so, (2) whether the crimes are "degree variants" or aggravated forms of the same core offense. Id. at 21.

The crimes constitute separate offenses under Blockburger because each crime contains an element that the other does not.⁸ Attempted second degree murder requires that the perpetrator's act was imminently dangerous to another and demonstrated a depraved mind without regard for human life. Attempted felony murder requires that the act be committed during the course of committing a felony and that it could have resulted in the unlawful death of another.

Finding that the initial inquiry results in the conclusion that each crime constitutes a separate offense, we must next determine whether the two offenses are degree variants or aggravated forms of core offenses. We must first determine whether the two offenses share the same core offenses categorized as theft, battery, possession of contraband or homicide.

Both of the offenses, murder in the second degree and attempted felony murder, are included in Chapter 782 of the Florida Statutes entitled Homicide and are addressed to the same primary evil,⁹ the perpetration of an act that may inflict death. Although the two types of crimes differ in that the former requires an act evincing a depraved mind and the latter omits that requirement in lieu of the act being an intentional act perpetrated during the commission of a felony, both punish for the act that may inflict death. Because both crimes are included within the core offense of homicide and address the same evil, we must conclude that convictions for both crimes for the same act committed during a criminal event constitute a double jeopardy violation.

We also reach this conclusion greatly influenced by the strong language employed in the Gordon opinion:

We have held repeatedly that section 775.021 did not abrogate our previous pronouncements concerning punishments for singular homicides. See Goodwin v. State, 634 So.2d at 157-58 (Grimes, J., concurring) ("I believe that the Legislature could not have intended that a defendant could be convicted of two crimes of homicide for killing a single person.") State v. Chapman, 625 So.2d 838, 839 (Fla.1993); Houser v. State, 474 So.2d 1193, 1196 (Fla.1985) (noting that "only one homicide conviction and sentence may be imposed for a single death"); Campbell-Eley, 718 So.2d at 329; Laines v. State, 662 So.2d at 1250; Goss v. State, 398 So.2d at 999. Indeed, this principle is based on notions of fundamental fairness which recognize the inequity that inheres in multiple punishments for a singular killing.

Having found that the dual homicide convictions are impermissible under Gordon, we vacate only the conviction and sentence for the category 9 crime of attempted second degree murder. We affirm the conviction for the primary offense of attempted felony murder, a category 10 offense together with the convictions for attempted armed robbery and conspiracy to commit robbery. We remand for preparation of a new scoresheet and re-sentencing.

In view of the legislative requirement of section 775.021 to punish each offense that passes the Blockburger test, the requirements of Gordon and the conviction under the relatively new crime created by section 782.051(1), we certify the following question to be one of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

DO DUAL CONVICTIONS FOR ATTEMPTED SECOND DEGREE MURDER AND ATTEMPTED FELONY MURDER, PURSUANT TO SECTION 782.051, FLORIDA STATUTES (2001), FOR A SINGLE ACT CONSTITUTE A DOUBLE JEOPARDY VIOLATION?

THOMPSON, C.J., concurs.

PLEUS, J., dissents with opinion.

PLEUS, J., dissenting.

I respectfully dissent. Analysis must begin with the Blockburger¹⁰ test, or the "same elements" test. As noted by the Florida Supreme Court in M.P. v. State, 682 So.2d 79, 81 (Fla.1996), the initial and primary Blockburger inquiry is "whether each offense contains an element not contained in the other; if not, they are the same offense and double jeopardy bars subsequent punishment or prosecution."

The Blockburger test, with exceptions to the basic principle above, has been codified in Florida in section 775.021(4). It provides:

(4)(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.

(Emphasis added).

The two offenses of attempted felony murder and attempted second degree murder meet the initial test of each having at least one separate element that the other does not. Attempted second degree murder requires a showing of recklessness, of "a depraved mind without regard for human life"; attempted felony murder does not.¹¹ Attempted felony murder requires that the act was done during the commission of a felony, obviously not an element of attempted second degree murder.¹²

Furthermore, the two crimes do not fall into any of the statutory exceptions noted above. They do not require identical elements of proof because attempted felony murder requires the state to prove that an act was done in the commission of a felony. They are not degrees of the same offense. Attempted felony murder is a complete substantive crime, despite being denominated in its title as an attempt. In fact, it is neither a degree of, nor a statutory lesser included offense of, any homicide crime, despite its placement in Chapter 782, the homicide chapter of the Florida Statutes. Thus, a person can be convicted of either attempted first degree or attempted second degree murder, and attempted felony murder because attempted felony murder is neither a lesser included (or a "subsumed") offense of the offense of attempted murder, nor a degree of a homicide offense.¹³ § 775.021(4)(b)(2) & (3), Fla. Stat. (1999). In contrast, a person cannot be convicted of both first degree murder and felony murder. They are variants of the same crime, in fact, they are the same degree of the same offense, and are alternative means to prove a single offense. § 782.04, Fla. Stat....