Rodriquez v. State, 82-570

• Citation: 443 So.2d 236
• Decision Date: 15 December 1983
• Docket Number: No. 82-570,82-570
• Parties: Rene Ramous RODRIQUEZ, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 236

443 So.2d 236

Rene Ramous RODRIQUEZ, Appellant, v. STATE of Florida, Appellee.

No. 82-570.

District Court of Appeal of Florida,

Fifth District.

Dec. 15, 1983.

Rehearing Denied Jan. 10, 1984.

Bruce A. Nants, Orlando, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.

COBB, Judge.

Appellant, Rene Rodriquez, was charged by information with robbery under section 812.13(2), Florida Statutes (1981) (Count I), and with grand theft, second degree, under section 812.014, Florida Statutes (1981) (Count II). The facts adduced at trial indicated that Rodriquez and two other males had robbed a convenience store in Orlando by force, carrying away a cash register (valued at $250) which contained less than $50 in cash. The jury returned guilty verdicts on both counts, and Rodriquez was subsequently adjudicated guilty of both robbery and grand theft, second degree. The trial court sentenced Rodriquez only on the robbery count, presumably on the authority of the extant rule at that time of State v. Hegstrom, 401 So.2d 1343 (Fla.1981).

Rodriquez raises three points on appeal: the trial court's denial of proffered impeachment evidence, the trial court's denial of a motion for new trial based on newly discovered evidence, and a claim of double jeopardy in regard to the dual convictions. We find no merit in the first two arguments raised, and affirm the trial judge's rulings on those issues. We agree, however, that the conviction for the underlying felony of grand theft cannot stand.

In Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), the United States Supreme Court considered whether the prosecution and conviction in a Missouri state court of a criminal defendant in a single trial on both a charge of "armed criminal action" and a charge of first degree robbery--the underlying felony--was violative of the Double Jeopardy Clause of the Fifth Amendment. The Missouri statute proscribing armed criminal action specifically provides:

[A]ny person who commits any felony under the laws of this state by, with, or through the use, assistance, or aid of a dangerous or deadly weapon is also guilty of the crime of armed criminal action and, upon conviction, shall be punished by imprisonment by the division of corrections for a term of not less than three years. The punishment imposed pursuant to this subsection shall be in addition to any punishment provided by law for the crime committed by, with, or through the use, assistance, or aid of a dangerous or deadly weapon. No person convicted under this subsection shall be eligible for parole, probation, conditional release or suspended imposition or execution of sentence for a period of three calendar years. (Emphasis added.)

Mo.Stat.App. § 559.225 (Vernon 1979).

The United States Supreme Court noted that the Missouri Supreme Court, in Sours v. State, 593 S.W.2d 208 (Mo.1980), had "acknowledged that the Missouri Legislature had expressed its clear intent that a defendant should be subject to conviction and sentence under the armed criminal action statute, in addition to any conviction and sentence for the underlying felony." 593 S.W.2d at 216. The Supreme Court then held that the Missouri State Legislature constitutionally could prescribe cumulative punishments for violation of its first degree robbery statute and its armed criminal action statute. Noting that the defense contention did not relate to multiple trials, but rather to multiple punishments for the same offense, the Supreme Court said:

With respect to cumulative sentences imposed in a single trial, the double jeopardy clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.

The Court noted that its recent decisions in Whalen ¹ and Albernaz ² both emphasized that clear legislative intent controls in the determination of whether cumulative punishments may be imposed in a single trial setting. Ultimately, the court concluded:

Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the 'same' conduct under Blockburger, a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statute in a single trial.

103 S.Ct. at 679.

In the instant case it is readily apparent that the Florida Legislature did not contemplate cumulative punishments in its enactment of the robbery and theft statutes under which Rodriquez was charged, where there is only one taking of money by force. The crime here is singular--and it is robbery. As held by the United States Supreme Court in Whalen, in applying the Blockburger ³ test to the question of whether cumulative punishments for murder and rape are constitutionally permissible, the assumption is that the legislative body (in that case, Congress) ordinarily does not intend to punish the same offense under two different statutes. Such cumulative punishments are not authorized, said the Court, "in the absence of a clear indication of contrary legislative intent." Whalen at 691-92.

The emphasis placed by the United States Supreme Court upon legislative intent in applying the Blockburger test was recently recognized and utilized by the Florida Supreme Court in the case of Bell v. State, 437 So.2d 1057 (Fla.1983). In that case the defendant Bell was charged by information with trafficking in illegal drugs, sale of a controlled substance, and possession of a controlled substance--all offenses arising out of one criminal incident. Bell was convicted and sentenced on all counts. Justice Adkins, writing for the majority in Bell, said:

The mere existence of two statutory offenses does not establish that the legislature intended each to be independently convictable and punishable when both are committed in a single course of conduct. In the present case, the legislature has codified the distinctly different statutory offenses of sale of illegal drugs and possession of illegal drugs. Also it has determined that another offense, trafficking in illegal drugs, is committed when either or both of the offenses of sale or possession of a certain amount of illegal drugs is effected. By including sale and possession of drugs within the trafficking statute, it is apparent that the legislature intended to facilitate trafficking prosecutions through the use of alternative methods of proof rather than attempting to provide for multiple convictions and punishments for criminal conduct which is basically unitary.

437 So.2d at 1060.

The Florida Supreme Court then receded from any implications in prior decisions (Hegstrom, Monroe, Thompson ) ⁴ that there could be multiple convictions for lesser included offenses in a single trial setting. The court held:

That once it has been established that an offense, whether charged or not, and whether in single or separate proceedings, is a lesser included offense of a greater offense also charged, then the double jeopardy clause proscribes multiple convictions and sentences for both the greater and lesser included offenses.

Id. at 1061. Accordingly, the trafficking conviction was affirmed, and the convictions for sale and possession were reversed.

In the subsequent case of State v. Getz, 435 So.2d 789 (Fla.1983), the Florida Supreme Court again recognized that legislative intent is the touchstone of a Blockburger analysis relating to double jeopardy. In upholding a defendant's separate convictions for petit theft and grand theft of a firearm, under section 812.014, Florida Statutes (1981), ⁵ during the course of one burglary, the Supreme Court said:

It is clear from a reading of section 812.014 that the legislature intended to treat the theft of different types of property as separate criminal offenses and to establish distinct punishments for the separate offenses.

At 791. Clearly, theft of a firearm, irrespective of its value, was intended by the Florida Legislature to be treated as a separate theft distinct from the theft of other types of property. In the instant case, we do not find any provision in the robbery or theft statutes to indicate the expression of a legislative intent that punishments therefor are to be cumulative.

The dissent in the instant case attempts to evade the import of the Hunter, Bell and Getz decisions by distinguishing grand theft from petit theft on a limited Blockburger analysis, the distinction being the amount of money involved in the underlying theft. This is a distinction without a substantive difference.

It is elementary that, once convicted of petit theft for stealing money, a defendant cannot again be convicted of grand theft and sentenced twice where there has been only one conversion of a single sum of money. As stated in Mahaun v. State, 377 So.2d 1158 (Fla.1979), "where the underlying crime is an element of the greater offense, the defendant may be convicted and sentenced only for the greater of the crimes." See also State v. Pinder, 375 So.2d 836 (Fla.1979); Goss v. State, 398 So.2d 998 (Fla. 5th DCA 1981); Muszynski v. State, 392 So.2d 63 (Fla. 5th DCA 1981); Harkins v. State, 380 So.2d 524 (Fla. 5th DCA 1980). Since there was only one taking of property in the instant case, the underlying theft was a necessarily lesser included offense of the charged robbery. Once the underlying theft conviction is used to support Rodriquez' conviction for robbery, that same theft, even in a greater degree, cannot be used for an independent, cumulative conviction and sentence--in the absence of a clear legislative intent to the contrary. Hunter, Whalen, Albernaz.

This court previously has recognized that the underlying theft of property supporting a conviction of robbery, even though that theft be grand theft, is a necessarily lesser included offense of the robbery. Perkins v. Williams, 424 So.2d 990 (Fla....