State v. Carpenter
| Decision Date | 29 July 1982 |
| Docket Number | No. 60383,60383 |
| Citation | 417 So.2d 986 |
| Court | Florida Supreme Court |
| Parties | STATE of Florida, Petitioner, v. Arthur D. CARPENTER, Respondent. |
Jim Smith, Atty. Gen., and Michael A. Palecki, Asst. Atty. Gen., Tampa, for petitioner.
Jerry Hill, Public Defender, and Karla J. Staker, Asst. Public Defender, Bartow, for respondent.
We have for review a decision of the District Court of Appeal, Second District, (Carpenter v. State, 394 So.2d 144 (Fla. 2d DCA 1981)), which is in express conflict with Walker v. State, 386 So.2d 630 (Fla. 5th DCA 1980). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.
Respondent (hereinafter referred to as defendant), was arrested for driving while under the influence of intoxicating beverages. During the course of the arrest the defendant attacked the officer. He was charged by information with one count of battery upon a law enforcement officer and another count of "offering and doing violence" to the officer "by grabbing him by the throat and trying to choke him." He was found guilty of both counts and sentenced to concurrent sentences.
On appeal, the Second District Court of Appeal took the position that an offense could be a lesser included offense of another even though they carry the same penalty. The court then held that section 775.021(4), Florida Statutes (1979), prohibited separate sentences. This statute reads as follows:
(4) Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively.
After the decision in Carpenter v. State, we decided this question in Ray v. State, 403 So.2d 956 (Fla.1981), when we said:
It is also not "lesser" because both section 794.011(5) and section 800.04 are second-degree felonies. Thus, Ray was convicted of a crime for which he was not charged and which was not a permissible lesser included offense of the crime for which he was charged.
Id. at 959 (emphasis supplied).
Whereas here two crimes carry the same penalty, section 775.021(4) does not prohibit consecutive sentencing, since one crime is not the lesser of the other. It remains the court's function, however, to determine if the crimes are the same. If they are, double jeopardy would prohibit the imposition of multiple punishments. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).
A single transaction can give rise to distinct offenses under separate statutes without violating the double jeopardy clause of the fifth amendment. Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981). In determining whether separate punishment can be imposed, Blockburger requires that courts examine the offenses to ascertain whether each offense requires proof of a fact which the other does not. If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes. See Iannelli v. United States, 420 U.S. 770, 785 n.17, 95 S.Ct. 1284, 1293 n.17, 43 L.Ed.2d 616 (1975). In Albernaz v. United States the Court recognized that the power to define...
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...then, an offense cannot be a lesser included offense if, as here, it carries the same penalty as the charged offense. In State v. Carpenter, 417 So.2d 986 (Fla.1982), the Florida Supreme Court held that a defendant could be properly convicted and sentenced for battery on a police officer an......
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