State ex rel. Washington v. Rivkind, s. 77-563

• Decision Date: 11 October 1977
• Docket Number: Nos. 77-563,77-1200,s. 77-563
• Citation: 350 So.2d 575
• Parties: STATE of Florida ex rel. Nathaniel D. WASHINGTON and Anthony Adams, Relators, v. Leonard RIVKIND and Ira L. Dubitsky, Judges of the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, Respondents.
• Court: Florida District Court of Appeals

Page 575

350 So.2d 575

STATE of Florida ex rel. Nathaniel D. WASHINGTON and Anthony Adams, Relators, v. Leonard RIVKIND and Ira L. Dubitsky, Judges of the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, Respondents.

Nos. 77-563, 77-1200.

District Court of Appeal of Florida, Third District.

Oct. 11, 1977.

Bennett H. Brummer, Public Defender, and Irv J. Lamel and Paul Morris, Asst. Public Defenders, for relators.

Richard E. Gerstein, State's Atty., and Dennis L. Curran and Paul M. Rashkind, Asst. State's Attys., for respondents.

Before HENDRY, C. J., and PEARSON and HUBBART, JJ.

HUBBART, Judge.

These consolidated cases present a single issue as to whether an attempted third degree burglary is a third degree felony or a first degree misdemeanor within the meaning of Sections 777.04(4)(c), (d) and 810.02, Florida Statutes (1975). We hold that an attempt to commit a burglary of any degree, including a burglary of the third degree, constitutes a third degree felony under Section 777.04(4)(c) and 810.02, Florida Statutes (1975).

The relators in this case (Nathaniel D. Washington and Anthony Adams) were charged by information with attempted third degree burglary before the Circuit Court of the Eleventh Judicial Circuit of Florida. ¹ The relators moved to dismiss these informations for lack of jurisdiction of the circuit court to entertain them because the informations allegedly charged first degree misdemeanors which only the County Court of Dade County can constitutionally entertain. The respondent trial judges denied the motions on the ground that the charges lodged in the informations constituted third degree felonies which the circuit court had jurisdiction to entertain. Article V, Sections 5(b), 6(b), Florida Constitution; Sections 26.012(2)(d), 34.01(1), Florida Statutes (1975).

The relators have thereafter filed proceedings in this court which we treat as petitions for a writ of prohibition. We issued the rule nisi, but after considering the return and a full argument thereon, we conclude that the rule should be discharged and the petitions dismissed.

Section 777.04(4), Florida Statutes (1975) provides as follows:

"(4) Whoever commits the offense of criminal attempt, criminal solicitation, or criminal conspiracy shall be punished as follows:

(a) If the offense attempted, solicited, or conspired to is a capital felony, the person convicted shall be guilty of a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(b) If the offense attempted, solicited, or conspired to is a life felony or a felony of the first degree, the person convicted shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(c) If the offense attempted, solicited, or conspired to is a felony of the second degree or any burglary, the person convicted shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(d) If the offense attempted, solicited, or conspired to is a felony of the third degree, the person convicted shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084."

The only attempted crime singled out by name for punishment in the above attempt statute is attempted burglary. All other attempted crimes are referred to in generic terms. Subsection (c) provides that an attempt to commit "any burglary" shall be punished as a third degree felony. No interpretation of the statute is necessary. It means exactly what it says: all attempted burglaries are punishable alike as a third degree felony.

The relators seek some comfort from subsection (d) of the statute but fail to read it in pari materia with subsection (c). Subsection (d) provides in general terms that an attempt to commit a third degree felony shall be punished as a first degree misdemeanor. This subsection is obviously not referring to attempted burglaries as such crimes are separately and exclusively dealt with in the prior subsection.

Relators contend that this reading of the statute runs counter to an overall legislative scheme to punish attempted crimes less severely than the completed crimes. It is true that the attempt statute has such a general pattern, but with two exceptions. Subsection (e) of the statute provides that an attempted second degree misdemeanor shall be punished as a second degree misdemeanor, not a non-criminal violation. See Section 775.08(3), Florida Statutes (1975). And subsection (c) of the statute punishes any attempted burglary as a third degree felony.

With respect to the latter, the legislature clearly deemed attempted burglary such a serious crime that it deserved to be punished as a felony and never as a misdemeanor. We perceive no legal impediment for the legislature to accomplish this objective even though it may depart from its overall scheme of punishment for other attempted crimes. Moreover, we see no similar impediment in punishing an attempted second degree misdemeanor the same as the completed crime although this, too, departs for different reasons from the general pattern of punishment for attempted crimes.

We recognize that criminal statutes should be strictly construed and that where a statute is susceptible of differing constructions, the construction most favorable to the accused should be adopted. Section 775.021(1), Florida Statutes (1975). We find, however, no other reasonable construction to be given to the attempt statute short of amending it entirely.

The relators ask us to interpret "any burglary" in subsection (c) to mean "any (second degree) burglary." We are not authorized to amend a statute, including a criminal statute, in order to achieve a favorable construction thereof for the benefit of a defendant. See Fine v. Moran, 74 Fla. 417, 429-430, 77 So. 533, 536 (1917). Moreover, to adopt such a construction is to make the statute completely redundant. Subsection (c) makes attempted second degree felonies punishable as a third degree felony. If we interpret "any burglary" in the same subsection to mean only second degree burglary, such a term as interpreted would add nothing to what has already been prohibited. Obviously, the legislature meant something more. And we believe it meant exactly what it said: the attempt to commit "any burglary", not just a second degree burglary, is punishable as a third degree felony.

Criminal statutes must be strictly construed, but they are not to be construed so strictly as to emasculate the statute and defeat the obvious intention of the legislature. In other words, such strict construction is subordinate to the rule that the intention of the lawmakers must be given effect. George v. State, 203 So.2d 173, 176 (Fla. 2d DCA 1967).

We are supported in our result in this case by a recent decision of the First District Court of Appeal in Massey v. State, 348 So.2d 1244 (Fla. 1st DCA 1977), which held that attempted third degree burglary constitutes a third degree felony under section 777.04(4)(c), Florida Statutes (1975). Bownes v. State, 345 So.2d 787 (Fla. 4th DCA 1977), does not reach a contrary result because no contention was made in that case that attempted third degree burglary was a third degree...