State v. Dene
| Decision Date | 01 September 1988 |
| Docket Number | No. 71232,71232 |
| Citation | 533 So.2d 265 |
| Parties | STATE of Florida, Petitioner, v. Nancy Steele DENE, Respondent. |
| Court | Florida Supreme Court |
Robert A. Butterworth, Atty. Gen. and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for petitioner.
James Marion Moorman, Public Defender and Brad Permar, Asst. Public Defender, Clearwater, for respondent.
We review State v. Dene, 512 So.2d 1156 (Fla. 2d DCA 1987), to answer a certified question of great public importance. 1 We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.
Respondent Dene was a companion and housekeeper for an elderly, invalid woman. Dene concocted a plan in which her daughter and a cohort would commit a burglary/robbery of the elderly woman. Under this plan, Dene would be present during the crime but, in order to conceal her complicity, the other two robbers would treat her as a victim. Before the crime could be carried out, the elderly woman fired Dene. Nevertheless, the crime went ahead as planned except that Dene was not present because of the firing. In carrying out the burglary/robbery, the elderly woman was strangled and her throat cut, causing her death. Dene was first charged by information with second-degree felony murder and later indicted for first-degree murder, which, the state conceded, superseded the second-degree felony murder charge. The trial judge granted a directed verdict of first-degree felony murder. The jury was instructed on first-degree premeditated murder and, over the objection of Dene, on a lesser included charge of second-degree felony murder. The jury returned a verdict of guilty on the second-degree felony murder. Dene then moved for and was granted an arrest of judgment, arguing that she was not present at the scene of the murder and that the murder was committed by a person engaged in the perpetration of the robbery. On appeal, the district court affirmed on the authority of State v. Oliver, 490 So.2d 1372 (Fla. 2d DCA), cause dismissed, 496 So.2d 143 (Fla.1986).
This certified question requires that we examine the law of principals and the statutory crimes of first- and second-degree felony murder. We begin with chapter 57-310, Laws of Florida, wherein the legislature abolished all distinctions between principals in the first and second degrees and accessories before the fact and made all principals equally culpable regardless of whether they were actually or constructively present at the commission of the offense. 2 The legislative intent could not have been clearer.
AN ACT relating to and abolishing the distinctions between criminal principals in the first and second degrees and accessories before the fact; providing that whoever commits any criminal offense against the state or aids, abets, counsels, hires or otherwise procures such offense to be committed, is a principal in the first degree to such offense, whether he is or is not actually or constructively present at the commission of the offense; repealing Sections 776.01 and 776.02, Florida Statutes; and prescribing the effective date hereof.
WHEREAS, the legal distinctions between accessory before the fact, principal in the first degree and principal in the second degree serve no useful purpose; and
WHEREAS, these distinctions serve only as technicalities which impede the orderly administration of justice for the benefit of those charged with crimes, and as such should be abolished....
As of 1971, Florida's homicide statute did not include the offense of second-degree felony murder but section 776.011, Florida Statutes (1971) made all principals equally culpable of first-degree felony murder. In 1972, as a result of the Furman 3 decision, the legislature revised section 782.04 and enacted section 921.141, Florida Statutes (1973). Ch. 72-724, §§ 3, 9, Laws of Fla. In revising section 782.04, the legislature established the crime of second-degree felony murder, defining it as a murder "committed in the perpetration of or in the attempt to perpetrate any arson, rape, robbery, burglary, kidnaping, aircraft piracy, or unlawful throwing, placing or discharging of a destructive device or bomb, except as provided in subsection (1)." 4 Id. § 3 (emphasis added). The underlined words, which distinguished first- and second-degree felony murder, were not entirely clear. Consequently, one of the challenges to Florida's death penalty system was that the distinction between first- and second-degree felony murders was illusory and that a grand jury, at its whim, could interchangeably bring back an indictment on one or the other, thus resulting in arbitrary and capricious imposition of the death penalty in violation of Furman. In State v. Dixon, 283 So.2d 1, 11 (Fla.1973), cert. denied sub nom. Hunter v. Florida, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974), we rejected this challenge by holding
that the statute does establish two separate and easily distinguishable degrees of crime, depending upon the presence of the defendant as a principal in the first or second degree.
(Emphasis added). In doing so, we recognized that we were resurrecting an extinct distinction that the legislature had abolished.
The effect of this law was that the traditional definitions of principal in the first degree, principal in the second degree, and accessory before the fact were all combined within the statutory definition of principal in the first degree in Fla.Stat. § 776.011, F.S.A., and in the repealed Fla. Stat. § 782.04, F.S.A.
Id. We then concluded:
The obvious intention of the Legislature in making this change [to section 782.04] is to resurrect the distinction between principals in the first or second degree on the one hand and accessories before the fact on the other, in determining whether a party to a violent felony resulting in murder is chargeable with murder in the first degree or murder in the second degree. As to the distinction in any particular case, we need but refer to the rich heritage of case law on the distinctions between principals in the first or second degree and accessories before the fact.
We revisited section 782.04, Florida Statutes (1973), and reaffirmed our Dixon analysis in Adams v. State, 341 So.2d 765 (Fla.1976), cert. denied, 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 158 (1977); State v. Jefferson, 347 So.2d 427 (Fla.1977); and Enmund v. State, 399 So.2d 1362 (Fla.1981), rev'd on other grounds, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed. 1140 (1982). In Adams, the issue was whether it was reversible error to fail to instruct on second-degree felony murder as a lesser included offense of first-degree felony murder. We held that it was not necessary to so instruct, relying on the distinction we had drawn in Dixon between the two offenses and the statutory words "except as provided in subsection (1)" in the 1973 statute, because "the statutory scheme does not allow for a conviction of second degree murder" when the accused is a principal present at the scene. Adams, 341 So.2d at 768. In footnote 8 at 768, we recognized that the statute had been amended to define second-degree felony murder as "a killing not committed by the felon or one of his co-felons" and gave as an example the victim of the felony killing an innocent bystander while resisting the felony. In Jefferson, we again held that second-degree felony murder, as it was defined in the 1973 statute as interpreted by Dixon and Adams, was not a lesser included offense of first-degree felony murder because it was contingent on the accused not being present at the scene, i.e., being only an accessory before the fact.
In Enmund, we again addressed the Dixon distinction between first- and second-degree felony murder. Enmund claimed that he was not present at the crime scene and, under Dixon, could only be convicted of second-degree felony murder. We rejected this claim on the facts but, significantly, we recognized again that except for Dixon,
[t]he distinction [between principals and accessories before the fact] had previously been laid to rest for all purposes by chapter 57-310, Laws of Florida. See § 776.011, Fla.Stat. (1973).
Our Dixon, Adams, Jefferson, and Enmund interpretation of the 1973 statute defining second-degree felony murder was nullified by a complete redefinition of the offense in chapter 74-383, section 14, Laws of Florida. Obviously rejecting our interpretation of the words "except as provided in subsection (1)" and the offense which we had created, the legislature deleted the definition in subsection (2), and redefined the offense in a new subsection (3) as follows:
(3) When a person is killed in the perpetration of or in the attempt to perpetrate any arson, rape, sodomy, robbery, burglary, kidnapping, aircraft piracy or unlawful throwing, placing, or discharging of a destructive device or bomb by a person other than the person engaged in the perpetration of or in the attempt to perpetrate such felony, the person perpetrating or attempting to perpetrate such felony shall be guilty of murder in the second degree which constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in chapter 775.
Ch. 74-383, § 14, Laws of Fla. (codified at § 782.04(3), Fla.Stat. (1975)). The effect of this legislative amendment was threefold. First, by overriding the Dixon distinction between first- and second-degree...
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Connolly v. State
...role in the commission of the offense or whether they are present at the scene during the final acts of the offense. State v. Dene, 533 So.2d 265, 266–69 (Fla.1988) ; Potts v. State, 430 So.2d 900, 901–02 (Fla.1982). In 1957, the Florida Legislature eliminated these distinctions.Prior to 19......
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Lawrence v. State
...v. Dixon , 283 So. 2d 1, 10 (Fla. 1973), superseded on other grounds by ch. 74-383, § 14, Laws of Fla., as stated in State v. Dene , 533 So. 2d 265, 267 (Fla. 1988), in which this Court explained: It must be emphasized that the procedure to be followed by the trial judges and juries is not ......
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Connolly v. State, 3D09-280
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