State v. Smith
| Decision Date | 22 June 1989 |
| Docket Number | 72850,Nos. 72633,s. 72633 |
| Citation | 547 So.2d 613,14 Fla. L. Weekly 308 |
| Parties | 14 Fla. L. Weekly 308 STATE of Florida, Petitioner, v. Ben SMITH, Jr., et al., Respondents. STATE of Florida, Petitioner, v. Bruce Edward GORDON, Respondent. |
| Court | Florida Supreme Court |
Robert A. Butterworth, Atty. Gen., and Celia A. Terenzio and Diane E. Leeds, Asst. Attys. Gen., West Palm Beach, for petitioner in No. 72633.
Richard L. Jorandby, Public Defender, and Gary Caldwell, Asst. Public Defender, West Palm Beach, for respondents in No. 72633.
Robert A. Butterworth, Atty. Gen., and Robert J. Landry, Asst. Atty. Gen., Tampa, for petitioner in No. 72850.
James Marion Moorman, Public Defender, and Deborah K. Brueckheimer, Asst. Public Defender, Bartow, for respondent in No. 72850.
We review Gordon v. State, 528 So.2d 910 (Fla. 2d DCA 1988), and Smith v. State, 524 So.2d 461 (Fla. 4th DCA 1988), to answer a certified question of great public importance and to resolve direct and express conflict with decisions of this Court. We have jurisdiction. Art. V, § 3(b)(3) and (4), Fla. Const.
The issue presented is whether the legislature intended that the sale or delivery of a controlled substance and possession of that substance with intent to sell, 1 be treated as separate offenses subject to separate convictions and separate punishment. § 775.021(4), Fla.Stat. (1985). 2 The Gordon court below applied the mode of analysis set out in Carawan v. State, 515 So.2d 161 (Fla.1987), and concluded that the legislature did not intend that the crimes be treated as separate offenses subject to separate convictions and punishment. 3 Obviously concerned, however, the court certified the following question of great public importance which requires that we revisit Carawan.
We address first the double jeopardy aspect of the question. With respect to cumulative sentences in a single trial, the dispositive question is whether the legislature intended separate convictions and sentences for the two crimes. State v. Gibson, 452 So.2d 553, 558 (Fla.1984), receded from in part, State v. Enmund, 476 So.2d 165 (Fla.1985); Borges v. State, 415 So.2d 1265, 1267 (Fla.1982). As the Supreme Court succinctly put it, "[w]ith respect to cumulative sentences in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983). The sole issue is legislative intent.
Petitioner argues in two prongs that (1) the legislature has overridden Carawan by enacting chapter 88-131, section 7, Laws of Florida, and (2) this override of Carawan should be retroactively applied. For the following reasons, we agree with the first proposition but disagree with proposition two.
In Carawan, we addressed the issue of whether a single act, a gunshot, could be the basis for multiple convictions, attempted manslaughter and aggravated battery. Emphasizing that we were addressing offenses "predicated on one single underlying act," Carawan, 515 So.2d at 170 (footnote omitted), we set forth a series of analytical steps or rules of construction to be followed in such cases. The first is that "specific, clear and precise statements of legislative intent control" and "courts never resort to rules of construction where the legislative intent is plain and unambiguous." Id. at 165. The second step, absent a specific statement of legislative intent in the criminal offense statutes themselves, is to apply section 775.021(4), codifying Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), to the statutory elements of the criminal offenses. We added judicial gloss by assuming that the legislature "does not intend to punish the same offense under two different statutes," and that the courts should not mechanically apply section 775.021(4) so as to obtain "unreasonable results." Carawan, 515 So.2d at 167. Subsection 775.021(4) was to be treated as an "aid" in determining legislative intent, not as a specific, clear, and precise statement of such intent. To assist in this analysis, courts are to make a subjective determination of whether the two statutory offenses address the "same evil." Id. at 168. The third rule or step is the application of the rule of lenity codified as section 775.021(1), Florida Statutes (1985). 4 We recognized that application of the rule of lenity in subsection (1) might lead to a result contrary to that obtained by applying the statutory elements test of the offenses per subsection (4). We opined that the two rules only come into play when there is no specific statement of legislative intent in the criminal offense statute itself, i.e., when there is doubt about legislative intent. Thus we concluded that, by its terms, the rule of lenity controls and prohibits multiple punishments for the two offenses, even if each contains a unique statutory element and are separate offenses under subsection 775.021(4).
Carawan was grounded on our interpretation of legislative intent in enacting subsections 775.021(1) and (4). In the legislative session following the issuance of Carawan, the legislature responded by amending section 775.021(4) to include a specific statement of legislative intent:
(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.
Ch. 88-131, § 7, Laws of Fla. (insertions are underlined).
It is readily apparent that the legislature does not agree with our interpretation of legislative intent and the rules of construction set forth in Carawan. More specifically:
(1) The legislature rejects the distinction we drew between act or acts. Multiple punishment shall be imposed for separate offenses even if only one act is involved.
(2) The legislature does not intend that (renumbered) subsection 775.021(4)(a) be treated merely as an "aid" in determining whether the legislature intended multiple punishment. Subsection 775.021(4)(b) is the specific, clear, and precise statement of legislative intent referred to in Carawan as the controlling polestar. Absent a statutory degree crime or a contrary clear and specific statement of legislative intent in the particular criminal offense statutes, 5 all criminal offenses containing unique statutory elements shall be separately punished.
(3) Section 775.021(4)(a) should be strictly applied without judicial gloss.
(4) By its terms and by listing the only three instances where multiple punishment shall not be imposed, 6 subsection 775.021(4) removes the need to assume that the legislature does not intend multiple punishment for the same offense, it clearly does not. However, the statutory element test shall be used for determining whether offenses are the same or separate. Similarly, there will be no occasion to apply the rule of lenity to subsection 775.021(4) because offenses will either contain unique statutory elements or they will not, i.e., there will be no doubt of legislative intent and no occasion to apply the rule of lenity.
In the second prong to the argument, petitioner argues that the timing and content of chapter 88-131, section 7, show that the legislative intent expressed therein was to override the interpretation we adopted in Carawan and to restore the legislative intent attributed to section 775.021 pre-Carawan. State v. Rodriquez, 500 So.2d 120 (Fla.1986), receded from in part, Carawan v. State, 515 So.2d 161 (Fla.1987); State v. Baker, 456 So.2d 419 (Fla.1984); Gibson; State v. Getz, 435 So.2d 789 (Fla.1983); Smith v. State, 430 So.2d 448 (Fla.1983); and Borges. Respondent argues that receding from Carawan and retroactively applying chapter 88-131, section 7, will violate the ex post facto clause. Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987). On this point we agree with respondents and with the court in Heath v. State, 532 So.2d 9, 10 (Fla. 1st DCA 1988):
First, it is a function of the judiciary to declare what the law is. 10 Fla.Jur.2d, Constitutional Law, § 166. Although legislative amendment of a statute may change the law so that prior judicial decisions are no longer controlling, it does not follow that court decisions interpreting a statute are rendered inapplicable by a subsequent amendment to the statute. Instead, the nature and effect of the court decisions and the statutory amendment must be examined to determine what law may be applicable after the amendment. See, 13 Fla.Jur.2d, Courts and Judges, § 140.
Secondly, it is firmly established law that the statutes in effect at the time of commission of a crime...
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