St. Fabre v. State, 88-587

• Decision Date: 06 September 1989
• Docket Number: No. 88-587,88-587
• Citation: 14 Fla. L. Weekly 2100,548 So.2d 797
• Parties: 14 Fla. L. Weekly 2100 Camelien ST. FABRE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 797

548 So.2d 797

14 Fla. L. Weekly 2100

Camelien ST. FABRE, Appellant, v. STATE of Florida, Appellee.

No. 88-587.

District Court of Appeal of Florida First District.

Sept. 6, 1989.

Michael E. Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Carolyn J. Mosley, Asst. Atty. Gen., Tallahassee, for appellee.

BARFIELD, Judge.

Appellant asserts that his convictions for sale of cocaine under section 893.13(1)(a), Florida Statutes (1985), and for possession of the same cocaine under section 893.13(1)(e) ¹ violated his constitutional right against double jeopardy. We disagree and affirm the convictions.

Appellant was charged with conspiracy, trafficking, sale and possession of cocaine, possession of cannabis, and possession of drug paraphernalia. He was found guilty of possession of cocaine in violation of section 893.13(1)(e) and sale, delivery or possession with intent to sell or deliver cocaine in violation of section 893.13(1)(a), both convictions predicated on his sale of one piece of cocaine to a confidential informant.

The question, for purposes of double jeopardy analysis, is whether the legislature intended to punish appellant, under subsection (e), for possession of a cocaine rock separately and in addition to punishing him, under subsection (a), for one of the acts constituting a violation of that subsection, involving the same cocaine rock.

Where the same act or transaction constitutes a violation of two distinct statutory provisions, the courts use the Blockburger ² test in determining whether the legislature intended to punish two separate offenses: Whether each provision requires proof of an additional fact which the other does not. This test has been codified since 1983 in section 775.021(4), Florida Statutes (emphasis added):

Whoever in the course of one criminal transaction or episode, commits separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and a sentencing judge may order the sentences to be served concurrently or consecutively. For the purpose of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.

Under this test, violation of section 893.13(1)(e) and violation of section 893.13(1)(a) are separate offenses, even when they are both predicated on the same act or transaction. In Baker v. State, 456 So.2d 419, 420 (Fla.1984), the supreme court held that the language of the 1979 version of section 775.021(4) ³ excluding lesser included offenses "refers only to necessarily lesser included offenses", that "the Brown category four [now category 2] lesser included offense analysis, while still possibly viable for jury alternatives, has nothing to do with double jeopardy," and that in determining whether separate convictions may flow from a single event, "one looks at the statutory elements of the charged crimes, as opposed to the language of the charging document" (emphasis in the original).

The Florida Standard Jury Instructions in Criminal Cases (2d Ed., Supp.1987) lists no "category 1" lesser included offenses of violation of section 893.13(1)(a). The "category 2" lesser included offenses are attempts, except when delivery is charged; simple possession, section 893.13(1)(e), if possession with intent to sell is charged; and possession or delivery without consideration of not more than 20 grams of cannabis, section 893.13(1)(f), if possession or delivery of cannabis is charged.

Appellant relies on the opinion of the Second District Court of Appeal in Gordon v. State ⁴ which held that convictions for sale of cocaine and possession of cocaine with intent to sell, each a violation of section 893.13(1)(a), Florida Statutes (1985), arising out of a single transaction involving the same controlled substance, violated double jeopardy principles because the offense of possession of a controlled substance with intent to sell is necessarily included in the offense of sale of a controlled substance and "the legislature has provided no contraindication that it intended multiple punishments imposed despite the presumption which arose out of the Blockburger portion of our Carawan analysis." 528 So.2d at 914.

In Wheeler v. State, 549 So.2d 687 (Fla. 1st DCA 1989), this court, en banc, reached the same ultimate conclusion reached in Gordon, but rejected its rationale. The court found that the structure of section 893.13(1)(a) indicates that sale and possession with intent to sell are alternative ways of violating the statute and that the legislature intended by this subsection to punish either the completed sale, manufacture or delivery of an illegal drug, or the frustrated sale, manufacture or delivery of the drug (by charging possession of the drug with the intent to sell, manufacture or deliver it), but not both when the same drug and the same transaction are involved. The court noted that it is logical to assume that if the legislature had intended to punish as separate crimes the offenses of sale of an illegal drug and possession with intent to sell the drug, it "would have proscribed each offense in separate subsections of the statute, as it did with simple possession of a controlled substance in section 893.13(1)(e)." (opinion at p. 690). Relying on Smith v. State, 430 So.2d 448 (Fla.1983), which was not mentioned in Gordon, this court rejected Gordon's rationale and held that possession is not a necessarily lesser included offense of sale of a controlled substance, because each statutory offense requires proof of an element which the other does not.

The State points out that in this case, appellant was convicted of violating two separate subsections of the statute, and argues that possession of cocaine under subsection (e) is not a necessarily lesser included offense of sale of the same cocaine under subsection (a), citing Smith. However, in this case the information, the verdict form, and the judgment each state that appellant was convicted of violating section 893.13(1)(a) by sale, delivery or possession with intent to sell or deliver cocaine. These documents do not specify that appellant was found guilty of sale of cocaine, as opposed to possession with intent to sell cocaine. While possession of cocaine under subsection (e) is a lesser included offense of possession with intent to sell cocaine under subsection (a), it is not a necessarily lesser included offense.

Nevertheless, we find that violation of section 893.13(1)(e) is not a necessarily lesser included offense of violation of section 893.13(1)(a), and that the structure of the statute indicates that the legislature intended to punish these offenses separately. We find in the statute no indication that the legislature intended to punish these separate offenses only once.

In Carawan v. State, 515 So.2d 161 (Fla.1987), the supreme court construed section 775.021 as a rule of statutory construction, noting that in the absence of any express statement of legislative intent, the Blockburger test creates a presumption as to the actual legislative intent, but that the court "then must consider the presumption so created in light of any relevant factors that may indicate a contrary legislative intent." The court held that if application of the Blockburger test reveals that each offense requires proof of a fact which the other does not, "multiple punishments are presumed to be authorized in the absence of a contrary legislative intent or any reasonable basis for concluding that a contrary intent existed." 515 So.2d at 168 (emphasis in the original).

Section 775.021(1) requires strict construction of the criminal code provisions, and provides that "when the language is susceptible of differing constructions, it shall be construed most favorably to the accused." The Carawan court construed this provision to favor the accused "wherever it is possible to conclude that multiple punishments were not intended, no matter what the elements of the crimes were." Id. It held that where there is a reasonable basis for concluding that the legislature did not intend multiple punishments, "the rule of lenity contained in section 775.021(1) and our common law requires (sic) that the court find that multiple punishments are impermissible." Id.

Shortly after the supreme court's opinion in Carawan was issued, the Florida Legislature amended section 775.021(4), chapter 88-131, Laws of Florida (changes underlined):

(a) Whoever in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be...