State v. Tuttle

• Decision Date: 12 November 2015
• Docket Number: No. SC14–817.,SC14–817.
• Citation: 177 So.3d 1246
• Parties: STATE of Florida, Petitioner, v. Timothy W. TUTTLE, Jr., Respondent.
• Court: Florida Supreme Court

177 So.3d 1246

STATE of Florida, Petitioner,
v.
Timothy W. TUTTLE, Jr., Respondent.

No. SC14–817.

Supreme Court of Florida.

Nov. 12, 2015.

177 So.3d 1246

Pamela Jo Bondi, Attorney General, Tallahassee, FL; Donna S. Koch, Assistant

177 So.3d 1247

Attorney General, and John M. Klawikofsky, Assistant Attorney General, Tampa, FL, for Petitioner.

Howard L. Dimmig II, Public Defender, and Benedict P. Kuehne, Special Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL; and Michael T. Davis of the Law Office of Benedict P. Kuehne, P.A., Miami, FL, for Respondent.

LEWIS, J.

The State of Florida seeks review of the decision of the Second District Court of Appeal in Tuttle v. State, 137 So.3d 393 (Fla. 2d DCA 2014), on the ground that it expressly and directly conflicts with the decisions of the First District Court of Appeal in Johnson v. State, 133 So.3d 602 (Fla. 1st DCA 2014), and Davis v. State, 74 So.3d 1096 (Fla. 1st DCA 2011), the decision of the Fourth District Court of Appeal in Olivera v. State, 92 So.3d 924 (Fla. 4th DCA 2012), and the decision of the Fifth District Court of Appeal in Washington v. State, 120 So.3d 650 (Fla. 5th DCA 2013), on a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

BACKGROUND

Double jeopardy prohibits conviction for two crimes where all of the elements of one crime are subsumed within the elements of the second crime. See Pizzo v. State, 945 So.2d 1203, 1206 (Fla.2006). In Pizzo, we held that in the double jeopardy context, the lesser crime is that which has each element subsumed by the second crime, and the greater crime is that which requires proof of an additional element not required by the lesser crime. Id. at 1207. The conflict issue concerns which conviction should be vacated to alleviate double jeopardy concerns where, as in this case, the lesser crime carries a higher punishment than the greater crime.

This case arises from the home invasion of the residence of Eric Stuebinger by two armed individuals. Tuttle, 137 So.3d at 394. Stuebinger was ultimately shot and killed during the incident, and Tuttle was identified as one of the intruders. Id. The State charged Tuttle with second-degree murder with a firearm, first-degree attempted home invasion robbery with a firearm causing death or great bodily harm, and first-degree burglary while armed. The jury found Tuttle guilty of manslaughter with a firearm, attempted home invasion robbery with a firearm, and armed burglary. Prior to sentencing, the State informed the trial court that dual convictions for attempted home invasion robbery and armed burglary presented double jeopardy concerns,¹ and asked that the court dismiss the attempted home invasion robbery conviction, which carries a lesser sentence. Tuttle objected and asserted that the court was required to dismiss the armed burglary conviction, which carries a higher sentence.

The parties filed sentencing memoranda with regard to which conviction should be vacated. The State asserted that Florida law requires the lesser charge to be set aside, and attempted home invasion robbery is the lesser charge because it is a second-degree felony, whereas armed burglary is a first-degree felony that carries a greater sentence. On the other hand, Tuttle relied on Schulterbrandt v. State, 984 So.2d 542, 544 (Fla. 2d DCA 2008), in which the Second District vacated an armed burglary conviction after it held that convictions for both attempted home invasion robbery and armed burglary violate

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double jeopardy because the elements of armed burglary are subsumed by those of attempted home invasion robbery. Accordingly, Tuttle contended that based on this elements test, the armed burglary conviction must be vacated, regardless of punishment.

The trial court accepted the position of the State and vacated the attempted home invasion robbery conviction. Tuttle appealed the ruling,² and the parties reiterated their arguments presented before the trial court. The Second District recognized that in Pizzo, this Court explained that the lesser offense is determined by looking exclusively to statutory elements, and that punishment should not be considered. Tuttle, 137 So.3d at 395 (citing Pizzo, 945 So.2d at 1206 ). The district court examined the elements of attempted home invasion robbery and armed burglary, and determined that the elements of armed burglary are subsumed by attempted home invasion robbery.Id. Accordingly, the district court held that armed burglary is the lesser crime. Id. The court also held that pursuant to Pizzo and section 775.021(4)(b) 3., Florida Statutes (2010), which governs double jeopardy, the lesser offense of armed burglary should have been vacated. Id.

The State sought discretionary review in this Court based on express and direct conflict between the decision below and Johnson, 133 So.3d at 602, Washington, 120 So.3d at 650, Olivera, 92 So.3d at 924, and Davis, 74 So.3d at 1096. In each of these cases, the lesser crimes as defined by Pizzo were allowed to stand, and the convictions for the greater crimes were vacated.

ANALYSIS

A double jeopardy claim based on undisputed facts presents a pure question of law and is reviewed de novo. Pizzo, 945 So.2d at 1206. The Legislature codified the double jeopardy test delineated by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), in section 775.021(4), Florida Statutes, which provides in pertinent part:

(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.

(Emphasis supplied). This Court has explained double jeopardy as follows:

A defendant is placed in double jeopardy where based upon the same conduct the defendant is convicted of two offenses, each of which does not require proof of a different element. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932) ; see § 775.021(4), Fla. Stat. (2006) (codifying the Blockburger elements test where the Legislature does not clearly provide for separate offenses). The Legislature has stated its intent to convict and sentence for each offense defined as separate under the Blockburger test, with

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three exceptions: offenses requiring identical elements of proof, offenses which are degrees of the same offense as provided by statute, and lesser offenses which have elements wholly subsumed by the greater offense. § 775.021(4)(b). When an appellate court determines that dual convictions are impermissible, the appellate court should reverse the lesser offense conviction and affirm the greater. See State v. Barton, 523 So.2d 152, 153 (Fla.1988) (stating that when "one of two convictions must fall, we hold that the conviction of the lesser crime should be set aside").

Pizzo, 945 So.2d at 1206.

Prosecutorial Discretion

The State asserts that requiring the lesser offense to be vacated infringes on prosecutorial discretion because it prevents the State from seeking adjudication and sentencing on a conviction that was properly charged. However, the State provides no authority that supports this claim. Rather, the cases simply relate to prosecutorial discretion with regard to the charging of criminal offenses. See Ball v. United States, 470 U.S. 856, 859, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985) (noting that the prosecutor has the discretion to select which charges to file ); see also United States v. Batchelder, 442 U.S. 114, 125, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979) (holding that prosecutors may exercise discretion in determining which of several statutes with the same elements to charge, and this decision may be influenced by the penalties available on conviction); State v. Cogswell, 521 So.2d 1081, 1082 (Fla.1988) (same); Fayerweather v. State, 332 So.2d 21, 22 (Fla.1976) (same); State v. Bloom, 497 So.2d 2, 3 (Fla.1986) (holding that the decision to charge and prosecute is an exclusively executive function, and the trial judge did not have the authority to make a pre-trial determination as to the applicability of the death penalty). The State also relies on Barber v. State, 564 So.2d 1169, 1170–71 (Fla. 1st DCA 1990), which relates to the prosecutor's discretion to determine which penalty scheme to pursue against a defendant. Another case concerns the executive clemency power and simply notes that prosecutorial discretion is a stage that precedes the judicial process. See Sullivan v. Askew, 348 So.2d 312 (Fla.1977). None of these cases hold that prosecutorial discretion is affected when a court remedies a double jeopardy violation after a verdict has been rendered.

The State additionally relies on Claps v. State, 971 So.2d 131...