State v. Weller

• Decision Date: 07 November 1991
• Docket Number: No. 69304,69304
• Citation: 590 So.2d 923
• Parties: STATE of Florida, Petitioner, v. Patrick WELLER, Respondent. 590 So.2d 923, 16 Fla. L. Week. S717
• Court: Florida Supreme Court

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.

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.

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 multiple punishments, which itself implicates constitutional concerns about double jeopardy. See, e.g., Carawan. However, we disagree with the conclusion the district court apparently drew from this state of affairs.

Multiple-punishments law and the question of necessarily lesser included offenses are separate topics that nonetheless are conjoined by one definite link: They help define each other.

If two statutory offenses are not "separate" under the Blockburger test, then the "lesser" offense is deemed to be subsumed within the greater. This is simple logic. When the commission of one offense always results in the commission of another, then the latter is an inherent component of the former. In other words, the Blockburger test by its very nature is designed to distinguish between that group of crimes that are "necessarily lesser included" offenses and that group of crimes that are not. This is an important function in multiple-punishments analysis, since only the latter group potentially can give rise to a multiple-punishments problem under Blockburger where more than one such crime arises from a single criminal act. ³

We thus do not agree with the district court's attempt to distinguish the present case from Rotenberry. While our opinion in Rotenberry dealt with a multiple-punishments issue, it could only do so after first determining whether the crimes involved were necessarily lesser included offenses. The only possible test the Court could have used was the one derived from Blockburger. If the statutes had failed to be "separate" under Blockburger, then there would have been no need to resolve the multiple-punishments problem at all.

Thus, the fact that we later receded from the multiple-punishments analysis used in Rotenberry ⁴ does not impugn the analysis as to the threshold question presented in that case--whether the statutory elements of one offense necessarily subsumed the statutory elements of another. See Rotenberry, 468 So.2d at 976-77. This portion of Rotenberry remains good law. Accordingly, to the extent the district court below reached a differing conclusion, its opinion is quashed.

Turning to the facts at hand, we first note the State's argument that Weller was not entitled to a jury instruction on the offense of conspiracy to deliver cocaine. The State contends this is so because this crime is not a necessarily lesser included offense of conspiracy to traffic in cocaine, but is a separate and distinct offense.

It is true that an instruction on conspiracy to deliver cocaine is not automatically required as a lesser included offense of conspiracy to traffic in cocaine, because the former is not a necessarily included offense of the latter. As we stated in Rotenberry, one offense can be committed without necessarily committing the other. Rotenberry, 468 So.2d at 976.

However, this does not dispose of the issue. In the case at bar, Count II of the information indicates Weller specifically was charged with conspiracy to deliver cocaine under section 893.13(1)(a)(1):

CARLOS GIRARDO GOMEZ and PATRICK DAVID WELLER ... did then and there conspire, combine, agree or confederate with one another to commit a criminal offense, to-wit: Trafficking in Cocaine, ... in that the said Carlos Girardo Gomez and Patrick David Weller did conspire, combine, agree, or confederate to deliver Cocaine ... in an amount of four hundred (400) grams or more, ... contrary to F.S. 893.135(4), F.S. 893.135(1)(b)(3), F.S. 893.03(2)(a)(4) and F.S. 893.13(1)(a)(1).

The law requires that an...