State v. Weller, No. 69304

• Court: United States State Supreme Court of Florida
• Writing for the Court: PER CURIAM; SHAW
• Citation: 590 So.2d 923
• Parties: STATE of Florida, Petitioner, v. Patrick WELLER, Respondent. 590 So.2d 923, 16 Fla. L. Week. S717
• Docket Number: No. 69304
• Decision Date: 07 November 1991

Page 923

590 So.2d 923 STATE of Florida, Petitioner,
v.
Patrick WELLER, Respondent. No. 69304. 590 So.2d 923, 16 Fla. L. Week. S717 Supreme Court of Florida. Nov. 7, 1991.
Rehearing Denied Jan. 14, 1992.

Page 924

Robert A. Butterworth, Atty. Gen. and Georgina Jimenez-Orosa, Asst. Atty. Gen., West Palm Beach, for petitioner.

Richard L. Jorandby, Public Defender and Jeffrey L. Anderson, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for respondent.

PER CURIAM.

We have for review Weller v. State, 501 So.2d 1291 (Fla. 4th DCA 1986), based upon express and direct conflict with Rotenberry v. State, 468 So.2d 971 (Fla.1985), receded from on other grounds, Carawan v. State, 515 So.2d 161 (Fla.1987), abrogation recognized, State v. Smith, 547 So.2d 613 (Fla.1989), and Brown v. State, 483 So.2d 743 (Fla. 5th DCA 1986) ("Brown I "). We have jurisdiction. Art. V, Sec. 3(b)(3), Fla. Const. We approve in part and quash in part the opinion below and remand to the trial court for further proceedings.

Patrick Weller was arrested in an undercover drug investigation and charged with two offenses. First, he was accused of committing the first-degree felony of trafficking in 400 grams or more of cocaine in violation of section 893.135(1)(b)(3), Florida Statutes (1983). This offense carries a minimum mandatory sentence of fifteen calendar years and a fine of $250,000. Id. Second, he was charged with the separate first-degree felony of conspiracy to traffic in 400 grams or more of cocaine in violation of section 893.135(4), Florida Statutes (1983)--a crime that also carries a fifteen-year minimum mandatory sentence and a fine of $250,000.

At the close of the State's case, Weller moved for judgments of acquittal on both the trafficking and conspiracy counts. These motions were denied.

On the conspiracy count, Weller requested three jury instructions on the following: (1) the third-degree felony of conspiracy to deliver cocaine, see Secs. 893.13(1)(a), 777.04(3), Fla.Stat. (1983); (2) the first-degree felony of conspiracy to traffic in cocaine in amounts less than 400 grams but more than 200 grams (which carries a minimum mandatory sentence of five calendar years and a fine of $100,000), see Sec. 893.135(1)(b)(2), Fla.Stat. (1983); and (3) the first-degree felony of conspiracy to traffic in cocaine in amounts less than 200 grams but more than twenty-eight grams (which carries a minimum mandatory sentence of three calendar years and a fine of $50,000). ¹ See Sec. 893.135(1)(b)(1), Fla.Stat. (1983). Weller contended these three crimes were lesser included offenses of conspiracy to traffic in 400 or more grams of cocaine. This motion also was denied.

Finally, Weller also requested that an entrapment instruction be given as to both counts. The trial court gave the instruction only on the trafficking count, but did not do so on the conspiracy count.

The jury returned a verdict finding Weller guilty as charged on both counts. The trial court later adjudicated Weller guilty and sentenced him to two concurrent fifteen-year terms and a fine of $250,000.

Page 925

On appeal, the Fourth District affirmed the trial court's judgment and sentence on the trafficking charge. However, it reversed the conspiracy conviction. The district court concluded that it was error to deny the jury instructions about the possible lesser included offenses. While recognizing the seemingly contrary language of Rotenberry, 468 So.2d at 976-77, the Fourth District distinguished Rotenberry on grounds it applied only in the context of double jeopardy and not in the context of lesser included offenses. However, the Fourth District noted possible conflict with Brown I. Weller, 501 So.2d at 1293.

The court below also ordered the trial court to instruct the jury on the defense of entrapment as to the conspiracy count. It found that the same facts that supported the giving of the instruction on the trafficking charge were applicable to the conspiracy charge. Finally, the district court held that the trial court did not err in denying Weller's motion for judgment of acquittal. Id. at 1293-94.

There has been some confusion in Florida law on how to define lesser included offenses. At one time, the state recognized four separate categories of lesser included offenses, each of which required a separate analysis. Brown v. State, 206 So.2d 377 (Fla.1968) ("Brown II "). Later, partly because of the confusion this earlier categorization had caused, the Court reduced the number of categories to two:

1. Offenses necessarily included in the offense charged, which will include some lesser degrees of offenses.

2. Offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence, which will include all attempts and some lesser degrees of offenses.

In re the Use by the Trial Courts of the Standard Jury Instructions in Criminal Cases, 431 So.2d 594, 596 (Fla.1981), modified, 431 So.2d 599 (Fla.1981).

The opinion below fairly can be read as rejecting the principle that Category 1 offenses are defined by resort to the test established in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). See Weller, 501 So.2d at 1293. This, we think, was error.

Under the Blockburger test,

"two statutory offenses are essentially independent and distinct if each offense can possibly be committed without necessarily committing the other offense. This is just a poor way of saying that the test is an abstract test and that two statutory offenses are not 'the same offense' if each statutory offense has at least one constituent element that the other does not."

Rotenberry, 468 So.2d at 976 (quoting Baker v. State, 425 So.2d 36, 50 (Fla. 5th DCA 1982) (Cowart, J., dissenting), approved in part, quashed in part, 456 So.2d 419 (Fla.1984)). Some of our lower courts have directly relied on this test in determining whether a crime is a Category 1 lesser included offense. E.g., Brown I. Thus, these courts have found that a crime is a necessarily lesser included offense if it cannot meet the Blockburger test. In other words, an offense falls in this Category if, on the face of the statutes themselves, a defendant cannot possibly avoid committing the offense when the other crime in question is perpetrated. ²

It is true, as the district court correctly noted, that the Blockburger test frequently has been applied to the question of...