Simmons v. State

• Decision Date: 23 May 1991
• Docket Number: No. 90-2410,90-2410
• Citation: Simmons v. State, 580 So.2d 295 (Fla. App. 1991)
• Parties: Willie Ed SIMMONS, Petitioner, v. STATE of Florida, et al., Respondents. 580 So.2d 295, 16 Fla. L. Week. D1397
• Court: Florida District Court of Appeals

Page 295

580 So.2d 295

Willie Ed SIMMONS, Petitioner, v.STATE of Florida, et al., Respondents.

No. 90-2410.

580 So.2d 295, 16 Fla. L. Week. D1397

District Court of Appeal of Florida Fifth District.

May 23, 1991.

Willie Ed Simmons, pro se.

No appearance for respondents.

PER CURIAM.

The petitioner seeks habeas corpus relief based on a claim that his appellate counsel was ineffective.

The petitioner was convicted of four offenses including (Count 4) attempted kidnapping (Secs. 787.01,777.04,Fla.Stat.) and (Count 1) first degree felony murder (Sec. 782.04,Fla.Stat.) based on the underlying felony of attempted kidnapping.On appeal this court affirmed all convictions except that of attempted kidnapping which conviction was reversed because the trial court erred in refusing to instruct the jury on attempted false imprisonment as a necessary lesser included offense of attempted kidnapping.Simmons v. State, 541 So.2d 1212(Fla. 5th DCA1989), rev. denied, 548 So.2d 663(Fla.1989).In this petition for Writ of Habeas Corpus, the petitioner makes somewhat contradictory statements to the effect that on remand from his prior appeal, the State entered a nolle prosequi on the attempted kidnapping charge and also seemingly claims that the attempted kidnapping charge is still pending.In any event the petitioner alleges that the original trial judge committed fundamental error in failing to properly instruct the jury as to the relationship between the first degree felony murder charge and the underlying felony kidnapping charge.We deny the Petition for Writ of Habeas Corpus because it appears that the allegations of ineffective assistance of appellate counsel are here being used to reargue the original jury instruction relating to the first degree felony murder charge and that this habeas corpus petition is merely a vehicle to obtain a second review.SeeSwafford v. Dugger, 569 So.2d 1264(Fla.1990)andKight v. Dugger, 574 So.2d 1066(Fla.1990).

However, we deny the petition in this case without prejudice to the petitioner to seek relief under Florida Rule of Criminal Procedure 3.850 or otherwise, if he has been acquitted on the underlying felony of attempted kidnapping because that event was not involved in the prior appeal.

PETITION DENIED.

GRIFFIN, J., concurs.

COWART, J., concurs specially with opinion.

DAUKSCH, J., concurs in result only.

COWART, Judge, concurring specially.

The interesting underlying point of law in this case involves the proper legal effect of the relationship between two special "greater" offenses: felony murder (under sections 782.04(1)(a)2. or 782.04(3) or 782.04(4), Florida Statutes), and the use of a weapon or firearm in the commission of a felony, (under sections 790.07(1) and (2), Florida Statutes) and their respective related underlying predicate "lesser" offenses.That relationship, and the legal effect of it, has been analyzed on the basis of at least three distinctively different concepts:

(1) LOGICAL RELATIONSHIP: ¹ the fundamental logical relationship that exists between these particular two greater/lesser offenses, results from the fact that each of these two "greater offenses" has an inherent definitional dependent relationship with the existence of their respective underlying predicate "lesser offenses."

(2)LEGISLATIVE INTENT: legislative intent, if any, embodied in applicable statutes(specificallysections 775.021(1) and (4), Florida Statutes).

(3) DOUBLE JEOPARDY--IDENTITY AS "THE SAME OFFENSE": the overriding intent and effect of the state and federal constitutional double jeopardy clauses (Article I, section 9,Fla.Const.;Amendment V, Constitution of the United States).²

Legislative intent may, to some extent, override the logical relationship.Of course, a logical analysis of the substance of two offenses may reveal they are in substance "the same offense" bringing into play the constitutional double jeopardy clauses which override any legislative intent, the effectuation of which would violate that constitutional limitation.

In 1979 the Florida Supreme Court held that double jeopardy prevented a person from being convicted of both felony murder and the underlying felony essentially because all the elements of the underlying felony (the "lesser offense" because it necessarily always has a lesser number of constituent elements) constituted a single essential composite element of the felony murder charge, i.e., the underlying felony is a lesser offense the statutory elements of which are subsumed in and by the greater (felony murder) offense.SeeState v. Pinder, 375 So.2d 836(Fla.1979).³

Then in the context of the felony murder/underlying felony problem, the supreme court seemed to consider the "logical relationship" between two offenses and the fact that the "greater" offense was by definition dependent upon the existence of the predicate (lesser) offense and to hold, in Mahaun v. State, 377 So.2d 1158(Fla.1979), that a defendant could not be convicted of felony murder unless he was also convicted of the underlying felony.In Redondo v. State, 403 So.2d 954(Fla.1981), the supreme court recognized that the dependent relationship between the "greater" offense of felony murder and its underlying felony was legally and logically analogous to the same dependent relationship between the firearm offense (Sec. 790.07(2),Fla.Stat.) and its underlying felony, ⁴ applied the Mahaun principle and held that a conviction of the firearms offense "must stand or fall" with its underlying felony offense.⁵Then the supreme court, in Pitts v. State, 425 So.2d 542(Fla.1983), held that Mahaun should not be read to hold that the defendant had to be convicted, or found guilty, of the underlying felony in order to be convicted of the greater firearms offense, but only that he could not be convicted of the greater felony if he has been directly, or by implication, acquitted of the underlying felony.

In the meantime, the supreme court returned to the double jeopardy analysis and in State v. Hegstrom, 401 So.2d 1343(Fla.1981), made a "single transaction rule" type analysis ⁶ and held, contrary to Pinder, that a defendant could be found guilty of both felony murder and the underlying felony offense but that double jeopardy prevented a sentence (punishment) on both offenses.The supreme court in State v. Gibson, 452 So.2d 553(Fla.1984), based on lesser included offense theory ⁷ and legislative intent embodied in the then section 775.021(4), Florida Statutes(1983), held that a defendant could be convicted of both the firearms offense and the underlying felony.⁸Later in State v. Enmund, 476 So.2d 165(Fla.1985), the supreme court returned to double jeopardy analysis but expressly receded from Pinder and held that a defendant could be found guilty and sentenced on both the felony murder and the underlying felony without violating double jeopardy rights.

The supreme court continued searching for a correct analysis of the double jeopardy identity of offense problem leading to the decision in Carawan v. State, 515 So.2d 161(Fla.1987).The supreme court, in Hall v. State, 517 So.2d 678(Fla.1988), applied the Carawan double jeopardy identity of offense analysis to the firearms/underlying felony problem, overruled Gibson, and held, consistent with Pinder, that the conviction of a defendant for the firearms offense and the underlying offense violated the double jeopardy clause.Hall has been extensively followed ⁹ and of course, as recognized in Redondo, ¹⁰ by analogy the same reasoning and conclusion should apply to the felony murder/underlying felony problem.Unfortunately Carawan 's attempt to follow then current federal double jeopardy case law analysis by expressing reliance in part on "legislative intent"(the "rule of lenity" as codified in section 775.021(1), Florida Statutes) shifted emphasis away from the intent of the framers of the double jeopardy clauses of the state and federal constitutions (double jeopardy analysis) and toward a "legislative intent" analysis.

The legislature reacted to what was perceived as blame for the result of judicial decisions applying constitutional double jeopardy and in 1988 amended section 775.021(4), Florida Statutes, to direct separate convictions and sentences for each and all statutory crimes under all circumstances with three enumerated exceptions.The three exceptions appear to be a legislative (rather than a judicial) interpretation of the scope and effect of constitutional double jeopardy limitations on convictions and punishment of multiple statutory offenses which may, substantively, be "the same offense."

With the supreme court's ruling in State v. Smith, 547 So.2d 613, 617(Fla.1989)(see alsoJones v. State, 569 So.2d 1234(Fla.1990)), that by enacting Chapter 88-131(Sec. 775.021(4),Fla.Stat.), Laws of Florida, the legislature overruled the judicial construction of the intent of the Florida constitutional double jeopardy clause contained in Carawan, the law is now very unclear, especially in view of the legislative exception contained in section 775.021(4)(b)3., Florida Statutes, which excepts from the declared general legislative intent of that statute, offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.Under the logical relationship analysis, double jeopardy identity-of-offenses analysis (such as in Pinder, Carawan and Hall )(and under lesser included offense analysis), this statutory exception can easily apply to the two particular greater/lesser offenses under consideration.Furthermore, if "conduct" involved in the lesser offense is a necessary part of the greater (felony murder or weapons/firearms) offense the federal double jeopardy clause may be implicated, seeGrady v. Corbin, --- U.S. ----, 110 S.Ct. 2084, 109 L.Ed.2d 548(1990).

In Pray v. State, 571 So.2d 554(Fla. 4th DCA1990), the Fourth District Court of Appeal seems to hold, consistent...