State v. Johnson

Decision Date04 April 1996
Docket NumberNo. 84854,84854
Citation676 So.2d 408
Parties21 Fla. L. Weekly S154, 21 Fla. L. Weekly S311 STATE of Florida, Petitioner, v. Robert L. JOHNSON, Respondent.
CourtFlorida Supreme Court

Robert A. Butterworth, Attorney General and Michael J. Neimand, Assistant Attorney General, Miami, for Petitioner.

Bennett H. Brummer, Public Defender and Manuel Alvarez, Assistant Public Defender, Eleventh Judicial Circuit, Miami, for Respondent.

SHAW, Justice.

We have for review State v. Johnson, 644 So.2d 1028 (Fla. 3d DCA 1994) which expressly and directly conflicts with the opinion in State v. Miranda, 644 So.2d 342 (Fla. 2d DCA 1994). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

We are called upon to determine whether double jeopardy bars prosecution for aggravated stalking under the following circumstances: In March 1993, Robert L. Johnson was served with a permanent injunction prohibiting him from (1) engaging in any criminal offense resulting in physical injury to Andrea Green; (2) entering her place of residence; or (3) place of employment; (4) abusing; (5) threatening; (6) harassing; or (7) contacting her. Johnson violated the terms of the injunction by twice contacting Green and entering her place of residence. On June 23, 1993, Johnson pled no contest to the state's petition for rule to show cause why he should not be held in contempt of court.

Based upon Johnson's conduct in contacting Green and entering her residence, the state on May 28, 1993, filed an information charging him with aggravated stalking under section 784.048(4), Florida Statutes (1993), which provides in pertinent part:

(1) As used in this section:

(a) "Harasses" means to engage in a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.

(b) "Course of conduct" means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of "course of conduct." Such constitutionally protected activity includes picketing or other organized protests.

....

(4) Any person who, after an injunction for protection against repeat violence pursuant to s. 784.046, or an injunction for protection against domestic violence pursuant to s. 741.30, or after any other court-imposed prohibition of conduct toward the subject person or that person's property, knowingly, willfully, maliciously, and repeatedly follows or harasses another person commits the offense of aggravated stalking, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Johnson's motion to dismiss the information on double jeopardy grounds was granted by the trial court and affirmed by the Third District Court of Appeal.

In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Court formulated the test to determine whether two offenses are the same for double jeopardy purposes in the context of multiple punishments. The defendant in Blockburger was convicted of violating two sections of the Harrison Narcotic Act 1 by proof of a single sale of narcotics. The Court held that although both violations resulted from a single narcotics sale, the offenses were distinct because "each provision require[d] proof of an additional fact which the other [did] not." Id. at 304, 52 S.Ct. at 182. For a period of time thereafter, the Court continued to focus on the elements of offenses to determine if they were the same for double jeopardy analysis. See Illinois v. Vitale, 447 U.S. 410, 416, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228 (1980); Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977).

In 1990, the Supreme Court again addressed the issue of the double jeopardy bar as it relates to multiple prosecutions flowing from the same conduct or episode. In Grady v. Corbin, 495 U.S. 508, 510, 110 S.Ct. 2084, 2087, 109 L.Ed.2d 548 (1990), the Court determined that defendants required more protection from exposure to double jeopardy than Blockburger provided and adopted the suggestion set forth in Vitale which examined the defendant's underlying conduct. The defendant in Grady was involved in an auto accident and pled guilty to driving while intoxicated and failing to keep to the right of the median. Two months later, Grady was charged with reckless vehicular manslaughter, negligent manslaughter and other charges stemming from the same accident. The Court concluded that the prosecutions for homicide and assault were barred because to establish those offenses, the state would have to prove the same conduct for which Grady had already been convicted--driving while intoxicated and failing to stay to the right of the median. The Grady Court held that "the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted." After Grady, a subsequent prosecution had to survive the Blockburger test and the same-conduct test to avoid a double jeopardy bar.

Three terms later, in United States v. Dixon, 509 U.S. 688, 703, 113 S.Ct. 2849, 2860, 125 L.Ed.2d 556 (1993), the Court overruled Grady because the same-conduct rule was a continuing source of confusion and lacked constitutional roots. The Dixon Court held that Blockburger was to be the sole method used to determine whether multiple punishments and successive prosecutions are subject to the double jeopardy bar. 2 Id. at ----, 113 S.Ct. at 2856. The Blockburger test, sometimes referred to as the same-elements test, "inquires whether each offense contains an element not contained in the other; if not, they are the 'same offence' and double jeopardy bars additional punishment and successive prosecution." Id.

The Blockburger test, has been codified in Florida at section 775.021, Florida Statutes (1995), which provides:

(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...

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  • State v. Bernacki
    • United States
    • Connecticut Supreme Court
    • September 26, 2012
    ...For states following Justice Scalia s approach, see Penn v. State, 73 Ark. App. 424, 428, 44 S.W.3d 746 (2001); State v. Johnson, 676 So. 2d 408, 410-11 (Fla. 1996); Tanks v. State, 292 Ga. App. 177, 179, 663 S.E.2d 812 (2008); State v. Rincon, Iowa Court of Appeals, Docket No. 2-132/11-061......
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    ...are the same offense for double jeopardy purposes. Some states have followed Justice Scalia's approach. See, e.g., State v. Johnson, 676 So.2d 408, 410-11 (Fla. 1996) ; Commonwealth v. Yerby, 544 Pa. 578, 679 A.2d 217, 219-221 (1996). Other states have followed Chief Justice Rehnquist's app......
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    ...of protective order charge. The Florida Supreme Court also followed the approach set forth by Justice Scalia in State v. Johnson, 676 So.2d 408, 411 (Fla.1996), when it considered the offense actually deemed to have been violated in the contempt proceeding, and noted: “[c]riminal contempt r......
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    • Connecticut Supreme Court
    • October 9, 2012
    ...of protective order charge. The Florida Supreme Court also followed the approach set forth by Justice Scalia in State v. Johnson, 676 So. 2d 408, 411 (Fla. 1996), when it considered the offense actually deemed to have been violated in the contempt proceeding, and noted: ''[c]riminal contemp......
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3 books & journal articles
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    • James Publishing Practical Law Books Florida Family Law and Practice - Volume 1
    • April 30, 2022
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    • Florida Bar Journal Vol. 71 No. 6, June 1997
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    ...for protection by engaging in the same conduct that served as the basis for the aggravated stalking charge. In State v. Johnson, 676 So. 2d 408 (Fla. 1996), the Supreme Court held that the prosecution of aggravated stalking did not violate double jeopardy, despite the defendant's plea to vi......

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