Perkins v. State
| Decision Date | 14 March 1991 |
| Docket Number | No. 75990,75990 |
| Citation | 576 So.2d 1310,16 Fla. L. Weekly 207 |
| Parties | 16 Fla. L. Weekly 207 Marcus PERKINS, et al., Petitioners, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Bennett H. Brummer, Public Defender, and Marti Rothenberg and Harvey J. Sepler, Asst. Public Defenders, Eleventh Judicial Circuit, Miami, for petitioners.
Robert A. Butterworth, Atty. Gen., Janet Reno, State Atty., and Richard L. Shiffrin, Asst. State Atty., Miami, for respondent.
We have for review State v. Perkins, 558 So.2d 537 (Fla. 3d DCA 1990), which certified a question of great public importance 1:
Is the defense of self defense available for a killing that occurred when both the defendant and the decedent were engaged in an attempt to traffic in cocaine and the decedent was the first to use deadly force?
We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answer in the affirmative, quash the opinion below, and remand for further proceedings.
The two Petitioners, Marcus Perkins and Rodney Guy, attempted to negotiate a drug deal through their codefendant, Calvin Lazier. 2 In this deal, both Perkins and Lazier approached Anthony Kimble to buy cocaine, while Guy remained in the vicinity.
Unknown to Petitioners, Kimble had no intention of selling any drugs. Upon encountering Petitioners, Kimble pulled a gun and tried to rob Perkins and Lazier of the $11,000 they had brought to purchase the drugs. In the ensuing struggle, Kimble shot Perkins; but Perkins then managed to take Kimble's gun away and shoot Kimble with it. Perkins survived, but Kimble died.
The defendants were charged with attempted cocaine trafficking and first-degree murder. During pretrial proceedings, the state conceded that Perkins acted in self defense, 3 but later argued that Perkins was barred from raising a legal claim of self defense because he was involved in a "forcible felony" as defined in Florida Statutes.
Under section 776.041(1), Florida Statutes (1987), the defense of self defense
is not available to a person who:
(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony....
(Emphasis added.) Section 776.08, Florida Statutes (1987), defines "forcible felony" as:
treason; murder; manslaughter; sexual battery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.
(Emphasis added.)
The trial court granted a pretrial motion in limine ruling that the defense of self defense was available. Later, the trial court granted a motion to dismiss the murder charges.
The state appealed the dismissal, and the Third District reversed. It found that the crime of trafficking in cocaine inherently involves a propensity to violence and thus qualifies as a "forcible felony"; therefore, a claim of self defense was not available to these defendants pursuant to the statutes quoted above. Perkins, 558 So.2d at 538-39. In support of this conclusion, the district court cited only dicta from other district court cases describing a propensity for violence that sometimes accompanies drug trafficking. E.g., State v. Amaro, 436 So.2d 1056, 1061 (Fla. 2d DCA 1983).
One of the most fundamental principles of Florida law is that penal statutes must be strictly construed according to their letter. E.g., State v. Jackson, 526 So.2d 58 (Fla.1988); State ex rel. Cherry v. Davidson, 103 Fla. 954, 139 So. 177 (1931); Ex parte Bailey, 39 Fla. 734, 23 So. 552 (1897). This principle ultimately rests on the due process requirement that criminal statutes must say with some precision exactly what is prohibited. E.g., Brown v. State, 358 So.2d 16 (Fla.1978); Franklin v. State, 257 So.2d 21 (Fla.1971); State v. Moo Young, 566 So.2d 1380 (Fla. 1st DCA 1990). Words and meanings beyond the literal language may not be entertained nor may vagueness become a reason for broadening a penal statute.
Indeed, our system of jurisprudence is founded on a belief that everyone must be given sufficient notice of those matters that may result in a deprivation of life, liberty, or property. Scull v. State, 569 So.2d 1251 (Fla.1990) (); Franklin, 257 So.2d at 23. For this reason,
[a] penal statute must be written in language sufficiently definite, when measured by common understanding and practice, to apprise ordinary persons of common intelligence of what conduct will render them liable to be prosecuted for its violation.
Gluesenkamp v. State, 391 So.2d 192, 198 (Fla.1980), cert. denied, 454 U.S. 818, 102 S.Ct. 98, 70 L.Ed.2d 88 (1981) (citations omitted). Elsewhere, we have said that
[s]tatutes criminal in character must be strictly construed. In its application to penal and criminal statutes, the due process requirement of definiteness is of especial importance.
State ex rel. Lee v. Buchanan, 191 So.2d 33, 36 (Fla.1966) (citations omitted); accord State v. Valentin, 105 N.J. 14, 519 A.2d 322 (1987). Thus, to the extent that definiteness is lacking, a statute must be construed in the manner most favorable to the accused. Palmer v. State, 438 So.2d 1, 3 (Fla.1983); Ferguson v. State, 377 So.2d 709 (Fla.1979).
The rule of strict construction also rests on the doctrine that the power to create crimes and punishments in derogation of the common law inheres solely in the democratic processes of the legislative branch. 4 Borges v. State, 415 So.2d 1265, 1267 (Fla.1982); accord United States v. L. Cohen Grocery Co., 255 U.S. 81, 87-93, 41 S.Ct. 298, 299-301, 65 L.Ed. 516 (1921) (). As we have stated,
The Florida Constitution requires a certain precision defined by the legislature, not legislation articulated by the judiciary. See Article II, Section 3, Florida Constitution.
Brown, 358 So.2d at 20; accord Palmer, 438 So.2d at 3. This principle can be honored only if criminal statutes are applied in their strict sense, not if the courts use some minor vagueness to extend the statutes' breadth beyond the strict language approved by the legislature. To do otherwise would violate the separation of powers. Art. II, § 3, Fla. Const.
Explicitly recognizing the principles described above, the legislature has codified the rule of strict construction within the Florida Criminal Code:
The provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.
§ 775.021(1), Fla.Stat. (1987).
We thus must determine whether the district court honored the legal rule described here. This question hinges on the exact meaning of the final clause of section 776.08, Florida Statutes, which defines forcible felony to include "any other felony which involves the use or threat of physical force or violence against any individual" (emphasis added). The district court below concluded that cocaine trafficking fits this description because of "the propensity for violence inherent in narcotics trafficking." Perkins, 558 So.2d at 538.
Certainly, violence sometimes accompanies narcotics trafficking, as it does many other types of crimes. Yet, contrary to the district court's conclusion, this fact alone does not place drug trafficking within the letter of the statutory language upon which the opinion under review rests.
The statute does not say that a forcible felony is any felony that "may sometimes" involve violence, or even a felony that "frequently does" involve violence. Rather, the statute requires that the felony actually "involves the use or threat of physical force or violence against any individual" (emphasis added). § 776.08, Fla.Stat. (1987). Taken in its ordinary and plain meaning, the term "involve" means "to contain within itself, to make necessary as a condition or result." Oxford American Dictionary 349 (1980). Its general sense is "to include." Id.
Thus, in the strict and literal sense required by Florida law, this language can only mean that the statutory elements of the crime itself must include or encompass conduct of the type described. If such conduct is not a necessary element of the crime, then the crime is not a forcible felony within the meaning of the final clause of section 776.08. See § 776.08, Fla.Stat. (1987); accord Bowes v. State, 500 So.2d 290 (Fla. 3d DCA 1986) (), review denied, 506 So.2d 1043 (Fla.1987).
We acknowledge some slight ambiguity in the meaning of the word "involves," albeit one clearly insufficient to void the statute for vagueness. While the legislature could have chosen more precise terminology, the rule of strict construction requires us to adhere to the stricter sense of statutory language. Thus, to the extent that the word "involves" is vague or ambiguous, the district court was under an obligation to construe it in the manner most favorable to the accused. Art. I, § 9, Art. II, § 3, Fla. Const.; § 775.021(1), Fla.Stat. (1987); Brown; Palmer; Buchanan. In other words, a "forcible felony" under the final clause of section 776.08 is a felony whose statutory elements include the use or threat of physical force or violence against any individual. 5
We are mindful of the state's argument that the doctrine of ejusdem generis 6 requires that the language of section 776.08 be read, as the district court did, by looking behind its precise language. Under this argument, the statute would be construed to include all crimes similar to the dozen felonies expressly included in the definition of "forcible felony." The state points out that the list includes treason and burglary and argues that these two crimes, like drug trafficking, can be accomplished without the use or threat of force or violence. 7
However, this construction depends upon yet another minor...
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