State v. Florida

• Decision Date: 17 February 2005
• Docket Number: No. SC03-1318.,SC03-1318.
• Parties: STATE of Florida, Petitioner, v. Arthur FLORIDA, Respondent.
• Court: Florida Supreme Court

894 So.2d 941

STATE of Florida, Petitioner, v. Arthur FLORIDA, Respondent.

No. SC03-1318.

Supreme Court of Florida.

February 17, 2005.

Charles J. Crist, Jr., Attorney General, Tallahassee, FL, Celia Terenzio, Senior Assistant Attorney General, Don M. Rogers, Assistant Attorney General, West Palm Beach, and Wesley Heidt, Assistant Attorney General, Daytona Beach, FL, for Petitioner.

Robert R. Feagin, III and Susan L. Kelsey of Holland and Knight, LLP, Tallahassee, FL, for Respondent.

PER CURIAM.

The issue in this case is whether a defendant may be convicted of both attempted second-degree murder with a firearm and aggravated battery on a law enforcement officer for the single act of shooting a police officer. We review Florida v. State, 855 So.2d 109 (Fla. 4th DCA 2003), in which the Fourth District Court of Appeal held that the dual convictions violated the Double Jeopardy Clauses of the state and federal constitutions.¹ The Fourth District acknowledged that its decision is in express and direct conflict with Schirmer v. State, 837 So.2d 587, 589 (Fla. 5th DCA 2003), in which the Fifth District Court of Appeal affirmed convictions for attempted second-degree murder and aggravated battery for a single stabbing. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons that follow, we hold that dual convictions of aggravated battery with a deadly weapon and attempted second-degree murder for a single act of stabbing or shooting a victim do not violate double jeopardy.

FACTS AND PROCEDURAL HISTORY

The defendant, Arthur Florida, shot a police officer in the head during a criminal episode that also involved other offenses. The State charged the defendant with attempted first-degree murder of a law enforcement officer (LEO) in count VI and attempted first-degree murder in count VII, alleging in both counts that Florida shot an officer in the head with a handgun. On count VI, the verdict choices were guilty as charged of attempted murder of a LEO, guilty of aggravated battery of a LEO, guilty of aggravated battery, and not guilty. On count VII, the verdict choices were guilty of attempted first-degree murder, guilty of attempted second-degree murder with a firearm, guilty of aggravated battery, and not guilty. The jury found the defendant guilty of aggravated battery on a LEO on count VI and guilty of attempted second-degree murder with a firearm on count VII. At sentencing, defense counsel moved to vacate the conviction on count VI on double jeopardy grounds, asserting that counts VI and VII "allege the same exact conduct as each other." The State requested that the trial court withhold sentence on one of the counts, but argued that dual convictions would not cause a double jeopardy violation because each crime had at least one element distinct from the other. The trial court withheld sentence on count VI, but adjudicated the defendant guilty of the offense of aggravated battery on a LEO. On count VII, the trial court adjudicated the defendant guilty of attempted second-degree murder with a firearm and sentenced him to life imprisonment as a habitual violent felony offender.

On direct appeal, the Fourth District affirmed the defendant's convictions and sentences per curiam without opinion. See Florida v. State, 701 So.2d 881 (Fla. 4th DCA 1997). The defendant moved for postconviction relief, asserting, inter alia, that the convictions on counts VI and VII for shooting the police officer caused a double jeopardy violation. The trial court summarily denied the motion, but the Fourth District reversed and ruled that the conviction on count VI must be vacated. See Florida, 855 So.2d at 111

. The Fourth District also concluded that the dual convictions constituted fundamental error, and the error was not rendered harmless by the withholding of sentence on count VI. See id.

ANALYSIS

Initially, we note that the defendant's double jeopardy claim was properly raised in a motion for postconviction relief. See Lippman v. State, 633 So.2d 1061, 1064-65 (Fla.1994)

(holding that a double jeopardy claim raises a question of fundamental error which is not procedurally barred when raised initially in rule 3.850 proceedings). Second, because the issue requires only a legal determination based on undisputed facts, our standard of review is de novo. See Trotter v. State, 825 So.2d 362, 365 (Fla.2002) (stating that sentencing claim presenting double jeopardy and due process issues is reviewed de novo); see generally Armstrong v. Harris, 773 So.2d 7, 11 (Fla.2000) ("[T]he standard of review for a pure question of law is de novo.").

Under our precedent, absent a clear statement of legislative intent, the test of whether multiple convictions for an act or acts committed during a single episode constitute double jeopardy is governed by Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). See Gordon v. State, 780 So.2d 17, 19-20 (Fla.2001)

. Under Blockburger, dual convictions are authorized only if each offense contains an element that the other does not. See id. at 20; Gaber v. State, 684 So.2d 189, 192 (Fla.1996). The Blockburger test is codified in section 775.021(4)(a), Florida Statutes (2004). Section 775.021(4) provides in full:

(4)(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 sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes 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.

(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:

1. Offenses which require identical elements of proof.

2. Offenses which are degrees of the same offense as provided by statute.

3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

Under section 775.021(4)(a) and Blockburger, multiple convictions for an act or acts in a criminal episode are unauthorized if each offense does not contain at least one element distinct from the other offenses. Under section 775.021(4)(b), multiple convictions are unauthorized if the offenses fall within one of the three statutory exceptions to the requirement of separate convictions and sentences.²

To apply section 775.021(4), we must determine the elements of the two offenses. The crime of attempted second-degree murder is codified in section 777.04(1), Florida Statutes (2004), which defines attempt, and section 782.04(2), Florida Statutes (2004), which defines second-degree murder. As reflected in the standard jury instructions, attempted second-degree murder has two elements: (1) the defendant intentionally committed an act that could have resulted, but did not result, in the death of someone, and (2) the act was imminently dangerous to another and demonstrated a depraved mind without regard for human life. See Brown v. State, 790 So.2d 389, 390 (Fla.2000)

; State v. Brady, 745 So.2d 954, 957 (Fla.1999). Use of a firearm is a third element that increases the penalty for the crime. The statutory elements of aggravated battery of a law enforcement officer are (1) commission of a battery (2) on a law enforcement officer (3) in which the perpetrator either knowingly caused great bodily harm, permanent disability or permanent disfigurement to the victim, or used a deadly weapon. See §§ 784.045(1)(a)(1)-(2), 784.07(2)(d), Fla. Stat. (2004).

In Gordon, this Court addressed a claim that convictions of attempted murder and aggravated battery were unauthorized. We held that convictions of attempted first-degree murder, felony causing bodily injury, and aggravated battery causing great bodily harm were authorized for the defendant's act of shooting the victim during a robbery. See 780 So.2d at 18, 25. We concluded that each offense contained an element not contained in the others, and that none of the three exceptions to the presumption of multiple convictions in section 775.021(4)(b) applied. Applying the Blockburger test, this Court stated that

attempted first-degree murder is distinguishable from aggravated battery because the latter requires an intent to cause great bodily harm, not an intent to kill, which is necessary for attempted first-degree murder. Likewise, aggravated battery requires great bodily harm, whereas attempted first-degree murder does not. The attempt to kill the victim is a separate and distinct act which is complete when the gun is fired — regardless of whether the target is hit. Thus, the Blockburger analysis also indicates that attempted first-degree murder and aggravated battery are separately punishable.

Id. at 22.

The State argues that Gordon controls the Blockburger analysis in this case, although one of the convictions is attempted second-degree murder rather than attempted first-degree murder. While he does not discuss Gordon, the respondent in this case asserts that the crimes are the same under Blockburger because the act which is reasonably certain to cause death or great bodily harm necessary for second-degree murder is the same act necessary to establish the intentional infliction of bodily harm for aggravated battery, making the elements congruent. The State responds that although the act may be the same, the elements of the crimes differ.

The State is correct. Under the Blockburger test codified in section 775.021(4)(a), attempted second-degree murder and aggravated battery with a deadly weapon each has an element distinct from the other. Victim contact...