Rodriguez v. State

• Decision Date: 16 July 2021
• Docket Number: 2D19-1106
• Parties: Carlos Ruben RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

331 So.3d 774

Carlos Ruben RODRIGUEZ, Appellant,

v.STATE of Florida, Appellee.

No. 2D19-1106

District Court of Appeal of Florida, Second District.

July 16, 2021

Howard L. Dimmig, II, Public Defender, and Benedict P. Kuehne, Special Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.

MORRIS, Chief Judge.

Carlos Ruben Rodriguez appeals his judgment and life sentence after a jury found him guilty of second-degree murder with a firearm and third-degree murder of the same person. See Fla. R. App. P. 9.030(b)(1)(A). Mr. Rodriguez raises five issues on appeal relating to (1) the Confrontation Clause, (2) double jeopardy, (3) the prosecutor's improper comments, (4) his motion for judgment of acquittal, and (5) his motion for mistrial. Because the trial court failed to cure the double jeopardy violation, we reverse and remand for the trial court to dismiss count three. We affirm Mr. Rodriguez's second-degree murder conviction and sentence without further comment, finding his other issues to be without merit.

I. Background

The State ultimately charged Mr. Rodriguez with second-degree murder with a firearm (count one), aggravated battery (count two), and third-degree murder (count three).¹ Counts one and three related to the death of K.E. Count two related to the shooting of C.S.

Both the State and the defense presented numerous witnesses and exhibits during a three-day jury trial. Afterwards, the jury found Mr. Rodriguez guilty of both murder counts as charged and not guilty of aggravated battery. The trial court adjudicated Mr. Rodriguez guilty of second-degree murder and third-degree murder.

At the sentencing hearing, the prosecutor advised the trial court that it violated double jeopardy to convict and sentence Mr. Rodriguez on both murder counts. The prosecutor requested the trial court to rescind its previous adjudication of guilt for third-degree murder "and not impose a sentence on that count but not to dismiss it either, to just leave it there as the jury verdict with no sentence." The prosecutor believed that would take care of any double jeopardy issue, and the defense had no objection. The trial court granted the prosecutor's request. It stated, "I'll go ahead and rescind the adjudication on the third-degree murder charge entered after the jury verdict, and we'll leave it at that." It sentenced Mr. Rodriguez to life in prison for count one, second-degree murder. The trial court then rendered a written judgment and sentence on count one only; it did not mention count three. The trial court did not memorialize its rescission of adjudication of guilt for count three in a written order.

II. Discussion

Mr. Rodriguez argues that the charges, trial, and convictions of both second-degree murder and third-degree murder for a single death violated double jeopardy under the principle of merger. He further asserts that the trial court's rescission of its adjudication of count three did not cure the fundamental error. To cure the error, he asserts that we must vacate the jury verdict for count three or remand for the trial court to enter an adjudication of not guilty for count three.

A. The Double Jeopardy Violation

Although defense counsel did not object to the prosecutor's proposed resolution of the dual murder convictions, "a double jeopardy violation constitutes a fundamental error that we may address for the first time on appeal." Rubio v. State , 233 So. 3d 482, 483 (Fla. 2d DCA 2017). "[D]ouble jeopardy affords three basic protections: 'against a second prosecution for the same offense following an acquittal, against a second prosecution for the same offense after a conviction, and against multiple punishments for the same offense.' " Claps v. State , 971 So. 2d 131, 133 (Fla. 2d DCA 2007) (quoting Rodriguez v. State , 875 So. 2d 642, 644 (Fla. 2d DCA 2004) ).

Initially, in the past, "the principle of merger, prohibiting multiple punishments for a single killing, '[was] an exception to the standard double jeopardy analysis.' " Barnett v. State , 283 So. 3d 927, 929 (Fla. 2d DCA 2019) (quoting Williams v. State , 90 So. 3d 931, 934 (Fla. 1st DCA 2012) ). But recently, the Florida Supreme Court held that "the single homicide rule is no longer applicable under Florida law."

State v. Maisonet-Maldonado , 308 So. 3d 63, 70 (Fla. 2020). "After the 1988 amendment, the plain language of section 775.021[, Florida Statutes,] clearly expresses that offenses which pass the codified Blockburger² test should be punished separately and that there is no exception for offenses arising from a single death." Id. at 69.

Under the codified Blockburger test, a person may be dually convicted, for double jeopardy purposes, of separate criminal offenses committed "in the course of one criminal transaction or episode" where "each offense requires proof of an element that the other does not," unless an exception under section 775.021(4)(b)(1) - (3), Florida Statutes (2016), applies. § 775.021(4)(a) ; Maisonet-Maldonado , 308 So. 3d at 66-67 (citing § 775.021(4)(a) ). The exceptions are: (1) "[o]ffenses which require identical elements of proof," (2) "[o]ffenses which are degrees of the same offense as provided by statute," and (3) "[o]ffenses which are lesser offenses the statutory elements of which are subsumed by the greater offense." § 775.021(4)(b).

Here, second-degree murder and third-degree murder are separate offenses. Compare § 782.04(2), Fla. Stat. (2016) (defining second-degree murder as "[t]he unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life , although without any premeditated design to effect the death of any particular individual" (emphasis added)), with § 782.04(4) (defining third-degree murder as "[t]he unlawful killing of a human being, when perpetrated without any design to effect death, by a person engaged in the perpetration of, or in the attempt to perpetrate, any felony other than [those enumerated in subsections (a)-(s)]" (emphasis added)); see also Mitchell v. State , 830 So. 2d 944, 946 (Fla. 5th DCA 2002) (explaining that attempted second-degree murder and attempted felony murder "constitute separate offenses under Blockburger because each crime contains an element that the other does not"). Therefore, dual convictions for the second-degree murder and third-degree murder would be barred only "if the offenses meet the criteria in one of the exceptions." Maisonet-Maldonado , 308 So. 3d at 67 (quoting State v. Florida , 894 So. 2d 941, 945 n.2 (Fla. 2005), receded from on other grounds by Valdes v. State , 3 So. 3d 1067, 1077 (Fla. 2009) ).

The first and third exceptions do not apply. See § 775.021(4)(b)(1), (3). For the first exception, second-degree murder and third-degree murder do not require identical elements of proof. See § 782.04(2), (4). Second-degree murder requires proof of an "act imminently dangerous to another and evincing a depraved mind regardless of human life," § 782.04(2), and third-degree murder requires that the person be "engaged in the perpetration of, or in the attempt to perpetrate, any felony other than [those enumerated therein]," § 782.04(4). For the third exception, "the lesser offense is not subsumed by the greater offense" because second-degree murder and third-degree murder are separate under the Blockburger test. See Maisonet-Maldonado , 308 So. 3d at 71 ("[B]ecause these two offenses satisfy the Blockburger same-elements test, the third exception does not apply because, as we explained in Gaber [ v. State , 684 So. 2d 189, 192 (Fla. 1996) ], '[i]f two statutory offenses are found to be separate under Blockburger , then the lesser offense is not subsumed by the greater offense.' " (third alteration in original)).

This leaves the second exception: "[o]ffenses which are degrees of the same offense as provided by statute."

§ 775.021(4)(b)(2). "[T]he plain meaning of the language of subsection (4)(b)(2) ... is that '[t]he Legislature intends to disallow 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 1076 (second alteration in original) (quoting State v. Paul , 934 So. 2d 1167, 1176 (Fla. 2006) (Cantero, J., specially concurring)).³ "It prohibits separate punishments only when a criminal statute provides for variations in degree of the same offense, so that the defendant would be punished for violating two or more degrees of a single offense." Id. at 1076 (quoting Paul , 934 So. 2d at 1177 ).

Second-degree murder and third-degree murder are degree variants of each other as they are in the same statute and are degree variants of the same offense, murder. See § 782.04(2), (4) ; Valdes , 3 So. 3d at 1076 (stating, as an example, that the second exception applies to the three degrees of murder identified in section 782.04 (citing Paul , 934 So. 2d at 1177 )); cf. Maisonet-Maldonado , 308 So. 3d at 71 (explaining that vehicular manslaughter and fleeing or eluding causing serious injury "are clearly not degree variants of each other because they do not share a common name, contain very different formal elements, and exist in completely different chapters of Florida Statutes"). The second exception applies here, and double jeopardy principles bar dual convictions for second-degree murder and third-degree murder. See § 775.021(4)(b)(2) ; Maisonet-Maldonado , 308 So. 3d at 68-69.

Contrary to Mr. Rodriguez's assertion on appeal, however, double jeopardy protections do not extend to the information or jury selection phase. See Claps , 971 So. 2d at 134 (concluding that the argument that double jeopardy protections extend "to an earlier stage in the proceedings, such as the information or jury selection phase" fails); State v. Lewek , 656 So. 2d 268, 268 (Fla. 4th DCA 1995) ...