State v. Barnum

• Decision Date: 22 September 2005
• Docket Number: No. SC03-1315.,SC03-1315.
• Citation: 921 So.2d 513
• Parties: STATE of Florida, Petitioner, v. Henry Maynard BARNUM, Respondent.
• Court: Florida Supreme Court

Page 513

921 So.2d 513

STATE of Florida, Petitioner, v. Henry Maynard BARNUM, Respondent.

No. SC03-1315.

Supreme Court of Florida.

September 22, 2005.

As Revised on Denial of Rehearing February 9, 2006.

Charlie J. Crist, Jr., Attorney General, Robert R. Wheeler, Bureau Chief Criminal Appeals, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, FL, for Petitioner.

Nancy A. Daniels, Public Defender and Kathleen Stover, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Respondent.

Kirk N. Kirkconnell and William R. Ponall of Kirkconnell, Lindsey, Snure and Yates, P.A., on behalf of The Florida Association of Criminal Defense Lawyers (FACDL), Winter Park, FL, as Amicus Curiae.

LEWIS, J.

We have for review the decision in Barnum v. State, 849 So.2d 371 (Fla. 1st DCA 2003) ("Barnum II"), which certified conflict with Sweeney v. State, 722 So.2d 928 (Fla. 4th DCA 1998). See Barnum II, 849 So.2d at 374. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.¹ For the reasons explained below, we quash the First District's decision in Barnum II and approve the Fourth District's decision in Sweeney. Additionally, we find it necessary to reconsider, analyze, and recede from some aspects of our decision in State v. Klayman, 835 So.2d 248 (Fla.2002), which propagated an interpretation of the United States Supreme Court's decision in Fiore v. White, 531 U.S. 225, 121 S.Ct. 712, 148 L.Ed.2d 629 (2001), that in some aspects is unnecessarily expansive, difficult in application, and somewhat at odds with the jurisprudence of this state.

FACTS AND PROCEDURAL HISTORY

The respondent was convicted of armed robbery, attempted first-degree murder of a law enforcement officer, depriving a law enforcement officer of his weapon, and grand theft following a jury trial. See Barnum v. State, 662 So.2d 968, 968-69 (Fla. 1st DCA 1995) ("Barnum I"). Important for purposes of the instant analysis, Barnum was convicted of attempted first-degree murder of a law enforcement officer in violation of section 784.07(3), Florida Statutes (1991). In 1991, section 784.07, "Assault or battery of law enforcement officers, firefighters, or intake officers; reclassification of offenses," provided, in relevant part:

(3) Notwithstanding the provisions of any other section, any person who is convicted of attempted murder of a law enforcement officer engaged in the lawful performance of his duty or who is convicted of attempted murder of a law enforcement officer when the motivation for such attempt was related, all or in part, to the lawful duties of the officer, shall be guilty of a life felony, punishable as provided in s. 775.0825.

§ 784.07(3), Fla. Stat. (1991).² At trial, the jury in this case was not instructed with regard to a knowledge element of the crime of attempted first-degree murder of a law enforcement officer. It is undisputed, and the record reflects, that Barnum's defense counsel did not request an instruction that the jury was required to find that Barnum knew the victim was a law enforcement officer; however, it is clear that whether Barnum had knowledge that the victim was a law enforcement officer was a disputed fact at trial.

On direct appeal, Barnum raised five issues, only one of which was addressed by the district court. See Barnum I, 662 So.2d at 969. There, the lower court set aside Barnum's conviction for grand theft of a firearm because he was also sentenced for robbery of the same firearm. See id. The district court affirmed, without discussion, Barnum's remaining convictions. See id. Barnum preserved and asserted the issue of whether knowledge that the victim was a law enforcement officer is an essential element of the offense of attempted first-degree murder of a law enforcement officer, however that issue was not addressed by the district court.

While Barnum's direct appeal was pending, the Fifth District decided Grinage v. State, 641 So.2d 1362 (Fla. 5th DCA 1994), affirmed on other grounds, 656 So.2d 457 (Fla.1995), in which the district court held that knowledge is an essential element of the offense of attempted first-degree murder of a law enforcement officer. Barnum filed a motion for rehearing in the district court, asserting conflict with Grinage and requesting that a certified question centered upon on the knowledge element be presented to this Court. Rehearing was denied. See Barnum I, 662 So.2d at 968.

On December 19, 1997, Barnum, acting pro se, filed a postconviction motion challenging his conviction for attempted first-degree murder of a law enforcement officer. In his motion he argued that he was denied due process and was improperly convicted of attempted murder under the specific statute because the jury had not been instructed nor had it been required to separately find that he had knowledge that the victim was a law enforcement officer. Subsequently, Barnum was appointed counsel, an amended motion was filed asserting error under Thompson v. State, 695 So.2d 691 (Fla.1997),³ and an evidentiary hearing was held. In Thompson, this Court held that "knowledge of the victim's status as a law enforcement officer is a necessary element of the offense under section 784.07(3), Florida Statutes (1993)." Id. at 693. The trial court denied Barnum's motion, holding that at the time of Barnum's trial, under existing Florida law knowledge was not an essential element of the crime of attempted first-degree murder of a law enforcement officer. Further, the trial court determined that although this Court had held in Thompson that knowledge was an element of the offense, the Fourth District Court of Appeal in Sweeney held that Thompson was not retroactive, and the trial court was required to adhere to the Sweeney holding.

On appeal, the First District Court of Appeal reversed the trial court's determination. The district court declined to follow the Fourth District's decision in Sweeney because the Sweeney court had failed to consider this Court's decision in Moreland v. State, 582 So.2d 618 (Fla.1991). See Barnum II, 849 So.2d at 374. The district court noted that in Moreland, this Court held that fundamental fairness may require the retroactive application of a decision even when a Witt⁴ analysis favors finality. See Barnum II, 849 So.2d at 374. The First District reasoned that "if this court had certified conflict with Grinage in Barnum's direct appeal, the supreme court could have considered Barnum's case, decided it in the manner it did Thompson, and remanded for a new trial. We therefore reverse, and certify conflict with Sweeney." Id.

Additionally, the district court explained that in deciding the case before it, the court had considered this Court's decisions in Klayman and Bunkley v. State, 833 So.2d 739 (Fla.2002), in which we held that Florida Supreme Court decisions that "clarify" statutory law apply to all cases, pending or final, while decisions that "change" the law require a Witt analysis to determine if the decision should be applied retroactively. See Barnum II, 849 So.2d at 374. The First District held that it was unable to reconcile Thompson with either category, stating:

Section 784.07(3) did not contain broad terms evincing that the legislature expected the courts to engage in judicial construction, but instead used language that was intended to include a knowledge requirement from the date of the law's enactment, which, under Klayman, would indicate that the court in Thompson was simply clarifying the meaning of the statute. Yet the court also stated that when deciding the applicability of a decision to final cases, a "key consideration" is whether prior case law shows that the lower courts were imposing criminal sanctions under the statute in question where none were intended. Klayman, 835 So.2d at 254; Bunkley, 833 So.2d at 745. As examples of decisions that clarified rather than changed the law, the court cited cases in which it could be readily determined from the record that the convictions or sentences had been imposed contrary to the statutes in question as a matter of law, and did not involve factually disputed matters. Klayman, 835 So.2d at 254, n. 8 & 12. In contrast, it cannot be said in this case that the trial court imposed a criminal sanction where none was intended, because the jury might have convicted Barnum of attempted murder of a law-enforcement officer if it had been properly instructed.

Barnum II, 849 So.2d at 374-75 (footnote omitted).

ANALYSIS

Continued Validity of Thompson

Initially, we address the State's assertion that the decision in Thompson v. State, 695 So.2d 691 (Fla.1997), has been altered by subsequent decisions of this Court, and thus the question of whether that decision is retroactive has been rendered moot. The State's claim is misplaced. The issue presented in Thompson was "whether knowledge of the victim's status as a law enforcement officer is an element of attempted murder of a law enforcement officer under subsection (3) of section 784.07, Florida Statutes (1993)." Thompson, 695 So.2d at 692. There, we held that knowledge of the victim's status as a law enforcement officer is a necessary element of the offense. See id. Importantly, we wrote:

Whether knowledge of the officer's status did or did not exist in a particular case is a factual finding to be left to the jury. While the jury's status as fact finder implicates the notion that a substantive offense has been created under the statute, we need not reach this question to resolve the issue here.

Id. at 693. The Thompson Court determined that knowledge was an element of a violation of section 784.07(3), but refused to classify section 784.07(3) of the Florida Statutes (1993) as either a substantive offense or a sentencing enhancement. See Thompson, 695 So.2d at 693.

Contrary to the State's position, this Court's decisions in Merritt v. State, 712 So.2d 384 (Fla.1998), and Mills v. State, 822 So.2d 1284 (Fla.2002), did not modify the Thompson holding,...