Scalf v. State, 89-2727

• Citation: 573 So.2d 202,16 Fla. L. Weekly 299
• Decision Date: 25 January 1991
• Docket Number: No. 89-2727,89-2727
• Parties: 16 Fla. L. Weekly 299 David L. SCALF, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 202

573 So.2d 202

16 Fla. L. Weekly 299

David L. SCALF, Appellant, v. STATE of Florida, Appellee.

No. 89-2727.

District Court of Appeal of Florida First District.

Jan. 25, 1991.

Michael E. Allen, Public Defender, and Lynn A. Williams, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Gypsy Bailey, Asst. Atty. Gen., for appellee.

ERVIN, Judge.

In this case appellant, David L. Scalf, raises a double jeopardy challenge to the state's prosecution for trafficking in stolen property and his subsequent conviction for grand theft, as a lesser-included offense to the trafficking charge. Appellant had previously been convicted and sentenced for the offense of fraudulent transfer of property to a pawnbroker based upon the same conduct on which the trafficking offense was premised. Because we find that the subsequent trafficking prosecution is barred by the double jeopardy clause, we reverse appellant's grand theft conviction and remand with directions that he be discharged as to that offense.

Appellant was arrested on two charges which transpired from a single episode: fraudulent transfer of property to a pawnbroker and dealing in stolen property. The fraudulent transfer offense is a first-degree misdemeanor, ¹ and as such was brought in county court, where appellant entered a plea of no contest to the charge and was thereafter sentenced to a six-month probationary term. Appellant was later accused in circuit court of trafficking in stolen property, a second-degree felony. ² Although he moved to dismiss the charge on double jeopardy grounds, the court denied the motion. Appellant subsequently pleaded nolo contendere to the lesser offense of grand theft, specifically reserving his right to appeal the court's denial of his motion to dismiss.

The double jeopardy clause of the fifth amendment provides: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. See also Art. I, § 9, Fla. Const. The double jeopardy clause of the United States Constitution is enforceable against the states through the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The United States Supreme Court has enumerated three guarantees which the constitutional prohibition against double jeopardy affords: (1) protection against a second prosecution for the same offense after acquittal; (2) protection against a second prosecution for the same offense after conviction; (3) and protection against multiple punishments for the same offense. Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228, 235 (1980). Because appellant contends that his conviction for fraudulent transfer to a pawnbroker bars the subsequent prosecution for dealing in stolen property, it is the second guarantee which is at issue here.

In our judgment the question whether appellant's subsequent prosecution for trafficking is barred by his earlier conviction for fraudulent transfer of property to a pawnbroker is controlled by the rule recently announced by the United States Supreme Court in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), on facts which are procedurally similar to those in the case before us. Like appellant at bar, the defendant Corbin did not contest the lesser charges filed against him, but initially pleaded guilty in the LaGrange Town Justice Court in the state of New York to two traffic offenses (misdemeanor driving while intoxicated and failure to keep to the right of the median), for which he was convicted. Thereafter he was charged in county court with certain felony offenses, including reckless manslaughter, second-degree vehicular manslaughter, and criminally negligent homicide. He thereupon sought a writ of prohibition barring the prosecution of all the later felony offenses, which the supreme court, appellate division, denied without opinion. The New York Court of Appeals reversed, however, and prohibited prosecution on the felony charges.

The reversal was ultimately upheld by the United States Supreme Court, which, in reaching its decision, enunciated the following principles: To determine whether a subsequent prosecution is barred by the double jeopardy clause, a court must first apply the traditional Blockburger test. ³ If application of that test shows that the offenses have identical statutory elements, or that one is a lesser included offense of the other, then the inquiry must cease and the subsequent prosecution is forbidden. Even if the later prosecution survives the Blockburger test, the double jeopardy clause still prevents prosecution in cases in which the government, in order to establish an essential element of an offense charged, relies upon conduct that constitutes an offense for which the defendant has already been prosecuted. Thus, the critical inquiry is what conduct the state will prove, not simply whether each offense requires proof of an element which the other does not. Corbin, 495 U.S. at ----, 110 S.Ct. at 2093, 109 L.Ed.2d at 564. The Court concluded that because the conduct which supported the underlying misdemeanor offenses for which the defendant had been convicted was the same as that supporting the later-filed felony offenses, the subsequent prosecutions were barred by the double jeopardy clause, even though the later offenses required proof of an element which the earlier crimes did not.

Applying the analysis used by the Supreme Court in Corbin to the instant case, we conclude that fraudulent transfer of property to a pawnbroker is not a lesser included offense to that of dealing in stolen property. Fla.Std.Jury Instr. (Crim.) p. 293. Nor is it the same offense under the Blockburger test, because each statute proscribing the offenses requires proof of an additional fact not required by the other. ⁴ Consequently, as the second prosecution here survives the Blockburger test, the inquiry must necessarily focus upon the second part of the Corbin analysis--whether the state must prove as an essential element of the trafficking offense...