State v. Gibson

• Decision Date: 14 June 1984
• Docket Number: No. 61325,61325
• Citation: 452 So.2d 553
• Parties: STATE of Florida, Petitioner, v. Julian L. GIBSON and Alfred J. Gibson, Respondents.
• Court: Florida Supreme Court

Page 553

452 So.2d 553

STATE of Florida, Petitioner, v. Julian L. GIBSON and Alfred J. Gibson, Respondents.

No. 61325.

Supreme Court of Florida.

June 14, 1984.

Jim Smith, Atty. Gen. and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for petitioner.

Bennett H. Brummer, Public Defender and Robert R. Schrank, Asst. Public Defender, Eleventh Judicial Circuit, Miami, for respondents.

BOYD, Justice.

Following our decision of February 17, 1983, in the present proceeding, the State of Florida filed a timely petition for rehearing, calling our attention to a misapprehension of its argument on the law applicable to the facts of the case. We therefore grant rehearing, revisit and rescind the decision, and withdraw our prior opinion.

This case came to the Court for review of the decision of the district court of appeal in Gibson v. State, 403 So.2d 1019 (Fla. 3d DCA 1981). We accepted jurisdiction on the ground of conflict of decisions. Art. V, § 3(b)(3), Fla. Const.

The respondents were convicted of the following two offenses: (1) robbery while armed and (2) use or display of a firearm during the commission of a felony. ¹ The felony during which the use or display of a firearm occurred was the robbery of which respondents were convicted. That is, both offenses arose from a single criminal episode. The district court ruled that it was necessary to vacate the conviction for the lesser crime on the ground that "[s]ince the two offenses for which the defendants stand convicted ... involve the same criminal act as a necessary element of each offense, the defendants' convictions and sentences for possession of a firearm may not stand." 403 So.2d at 1020. The district court cited State v. Pinder, 375 So.2d 836 (Fla.1979), as authority for the following statements: "A defendant may not be convicted of two or more offenses which involve the same criminal acts. In such an instance, only the conviction for the greater charge may stand." 403 So.2d at 1020. The quoted sentences were an overbroad and therefore inaccurate statement of the holding in State v. Pinder. Our decision in State v. Pinder was grounded on the constitutional prohibition against placing a defendant in jeopardy twice for the same offense. There, the lesser offense in question was determined to be the same offense, for double jeopardy purposes, as the greater offense because all of its elements were included among the elements of the greater offense. ² Here, contrarily, as the discussion to follow will show, the offense of robbery while armed does not include among its elements all of the elements of the crime of use or display of a firearm during the commission of a felony.

While relying on State v. Pinder (and, therefore, the double jeopardy clause) as authority for its holding, the district court in its opinion used certain language that was reminiscent of the judicially created "single transaction rule." The "single transaction rule," however, has been legislatively eliminated from the law of Florida. § 775.021(4), Fla.Stat. (1977); ³ Borges v. State, 415 So.2d 1265 (Fla.1982).

The offense of robbery while armed is defined in section 812.13(1) and (2), Florida Statutes (1977), which provides as follows:

(1) "Robbery" means the taking of money or other property which may be the subject of larceny from the person or custody of another by force, violence, assault, or putting in fear.

(2)(a) If in the course of committing the robbery the offender carried a firearm or other deadly weapon, then the robbery is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084.

(b) If in the course of committing the robbery the offender carried a weapon, then the robbery is a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

The other offense respondents were convicted of, use or display of a firearm during the commission of a felony, is defined in section 790.07(2), Florida Statutes (1977), which provides as follows:

(2) Whoever, while committing or attempting to commit any felony or while under indictment, displays, uses, threatens, or attempts to use any firearm or carries a concealed firearm is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, and s. 775.084.

In Borges v. State, 415 So.2d 1265 (Fla.1982), we held that the determination of whether two statutory offenses, charged on the basis of a single act or group of acts of the accused, are the same offense by reason of one being a lesser included offense of the other, is to be made by examining the statutory elements of the offenses rather than the allegations in the charging instrument or the factual elements of evidentiary proof presented at trial. The elements of robbery while armed, as statutorily defined, are (1) a taking of money or other property that may be the subject of larceny; (2) from the person or custody of another; (3) by force, violence, assault, or putting in fear; and (4) that the offender carried a firearm or other deadly weapon in the course of committing the robbery. § 812.13(1), (2)(a), Fla.Stat. (1977). The elements of the other offense in question are (1) the display, use, or threat or attempt to use; (2) a firearm; (3) while committing or attempting to commit a felony. § 790.07(2), Fla.Stat. (1977). ⁴

In Borges v. State, we adopted the test announced in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), for determining whether two statutory offenses, when ostensibly violated by a single act of the accused, are intended to be separately prosecuted and punished. There it was said that the "applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not." 284 U.S. at 304, 52 S.Ct. at 182. Applying this test to the statutory elements of the two offenses in question in the present case, we conclude that, because each offense has at least one statutory element that the other does not, the offenses are separate crimes even when based on the same act or factual event. Therefore, under the Blockburger test, the two offenses were intended by the legislature to be separately prosecuted and punished. The offense of robbery while armed contains, in addition to its other constituent statutory elements, the element that the accused carried a firearm or other deadly weapon. The elements of the crime do not include displaying the weapon or using it in perpetrating the robbery. The offense of display or use of a firearm while committing a felony contains as one of its constituent statutory elements that the offender displayed, used, or attempted or threatened to use a firearm during the commission of a felony. It is clear that each of these offenses contains at least one constituent statutory element that the other does not. Contrary to our conclusion in the opinion of February 17, 1983, we now determine that use or display of a firearm in committing a felony is not a lesser included offense of robbery while armed but, rather, was intended by the legislature as a separate offense to be separately prosecuted and punished even where based on a single act or closely connected group of acts. ⁵ § 775.021(4), Fla.Stat. (1977).

Although the district court's opinion in the instant case did not clearly indicate whether double jeopardy protection, the "single transaction rule," or some manifestation of legislative intent was the basis for its decision, we have some further observations concerning the arguable applicability of the double jeopardy clause to this kind of case. It should be noted that the Blockburger test is not of constitutional stature, but, rather, is a rule of statutory construction. Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981). The opinion in Blockburger did not once mention the double jeopardy clause, and the decision was grounded purely on legislative intent that the two statutory offenses in question there be separately prosecuted and cumulatively punished even though based on a single act or factual event. Blockburger does not provide a constitutionally binding test for determining when an offense is a lesser included offense of another and therefore the "same offense" for double jeopardy purposes. Therefore, Blockburger should be used if it helps to determine legislative intent and discarded when it does not or where the intent is already clear. ⁶ It has never been held authoritatively that double jeopardy prohibits cumulative prosecution and punishment of two or more separate statutory offenses merely because a single act or factual event provides the basis for proving both or all of the offenses. If the legislative authority intends separate prosecutions and punishments in such instances, they are permissible. See, e.g., Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); Harris v. United States, 359 U.S. 19, 79 S.Ct. 560, 3 L.Ed.2d 597 (1959); Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958).

Section 775.021(4), set out in footnote 3 above, mandates separate prosecutions and punishments whenever an act or group or series of acts violates more than one statutory provision. The statute contains an exception for "lesser included offenses." The purpose of the legislature in enacting the exception was to negate any intention of allowing, in a prosecution of an offense based on a single act or factual event, prosecution and punishment for another statutory offense constituting a less serious verdict alternative. See Bell v. State, 437 So.2d 1057 (Fla.1983). Thus, the exception in section 775.021(4) expressed the commonly understood notion that, for...