Perkins v. State, No. 75990

CourtUnited States State Supreme Court of Florida
Writing for the CourtPER CURIAM; SHAW; KOGAN, J., concurs specially with an opinion, in which BARKETT; KOGAN; BARKETT
Citation576 So.2d 1310,16 Fla. L. Weekly 207
Parties16 Fla. L. Weekly 207 Marcus PERKINS, et al., Petitioners, v. STATE of Florida, Respondent.
Decision Date14 March 1991
Docket NumberNo. 75990

Page 1310

576 So.2d 1310
16 Fla. L. Weekly 207
Marcus PERKINS, et al., Petitioners,
v.
STATE of Florida, Respondent.
No. 75990.
Supreme Court of Florida.
March 14, 1991.

Page 1311

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.

PER CURIAM.

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

Page 1312

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) (on petition for clarification); 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) (applying same principle to Congressional authority). 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'

Page 1313

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...

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143 practice notes
  • Fana v. Sec'y, Case No. 3:11–cv–311–J–39JRK.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • March 17, 2014
    ...Giles, prior Florida Supreme Court decisions had indicated section 776.041(1) as requiring a separate forcible felony. Perkins v. State, 576 So.2d 1310 (Fla.1991) (cocaine trafficking was not a forcible felony so as to preclude the defense of self-defense when a killing occurred during an a......
  • Nicholson v. State, No. 862, Sept. Term, 2017
    • United States
    • Court of Special Appeals of Maryland
    • November 5, 2018
    ...self-defense is applicable to felony murder in some circumstances. In our view, none of these cases is on point. In Perkins v. State , 576 So.2d 1310 (Fla. 1991), the Supreme Court of Florida, construing a state statute that makes self-defense unavailable to a person committing a forcible f......
  • Department of Law Enforcement v. Real Property, Nos. 77,308
    • United States
    • United States State Supreme Court of Florida
    • August 15, 1991
    ...see State v. Rodriguez, 575 So.2d 1262 (Fla.1991); State v. Harris, 356 So.2d 315, 317 (1978); vagueness, see, e.g., Perkins v. State, 576 So.2d 1310 (Fla.1991); Bussey; State v. Barquet, 262 So.2d 431, 436 (Fla.1972); the conduct of law enforcement officials, see Haliburton v. State, 514 S......
  • United States v. Vail-Bailon, No. 15-10351
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • August 25, 2017
    ...clause, a qualifying offense have as a statutory element the use or threat of physical force. See 868 F.3d 1304 Perkins v. State , 576 So.2d 1310, 1313 (Fla. 1991). In addition, and consistent with the definition of physical force articulated in Curtis Johnson , the Florida Supreme Court ha......
  • Request a trial to view additional results
143 cases
  • Fana v. Sec'y, Case No. 3:11–cv–311–J–39JRK.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • March 17, 2014
    ...Giles, prior Florida Supreme Court decisions had indicated section 776.041(1) as requiring a separate forcible felony. Perkins v. State, 576 So.2d 1310 (Fla.1991) (cocaine trafficking was not a forcible felony so as to preclude the defense of self-defense when a killing occurred during an a......
  • Nicholson v. State, No. 862, Sept. Term, 2017
    • United States
    • Court of Special Appeals of Maryland
    • November 5, 2018
    ...self-defense is applicable to felony murder in some circumstances. In our view, none of these cases is on point. In Perkins v. State , 576 So.2d 1310 (Fla. 1991), the Supreme Court of Florida, construing a state statute that makes self-defense unavailable to a person committing a forcible f......
  • Department of Law Enforcement v. Real Property, Nos. 77,308
    • United States
    • United States State Supreme Court of Florida
    • August 15, 1991
    ...see State v. Rodriguez, 575 So.2d 1262 (Fla.1991); State v. Harris, 356 So.2d 315, 317 (1978); vagueness, see, e.g., Perkins v. State, 576 So.2d 1310 (Fla.1991); Bussey; State v. Barquet, 262 So.2d 431, 436 (Fla.1972); the conduct of law enforcement officials, see Haliburton v. State, 514 S......
  • United States v. Vail-Bailon, No. 15-10351
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • August 25, 2017
    ...clause, a qualifying offense have as a statutory element the use or threat of physical force. See 868 F.3d 1304 Perkins v. State , 576 So.2d 1310, 1313 (Fla. 1991). In addition, and consistent with the definition of physical force articulated in Curtis Johnson , the Florida Supreme Court ha......
  • Request a trial to view additional results

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