Suggs v. State
| Decision Date | 12 October 2011 |
| Docket Number | No. 4D08–2913.,4D08–2913. |
| Citation | 72 So.3d 145 |
| Parties | Calvin Earl SUGGS, Jr., Appellant,v.STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellant.Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.GERBER, J.
A jury convicted the defendant of four counts of “written threat to kill or do bodily injury” for sending two letters, each of which threatened the same two persons. The defendant argues that his convictions violate the double jeopardy clause.1 More specifically, he argues that the “allowable unit of prosecution” for the charge should be the number of letters or communications sent, and not the number of people to whom each letter or communication is sent.2 We disagree. We hold that the allowable unit of prosecution is the number of persons to whom each letter or communication is sent, and not the number of letters or communications sent. Therefore, we affirm.
The defendant sent the two letters to Karen Robertson and Hope Suggs. Karen has legal custody of all five of the defendant's sons. Hope is the defendant's ex-wife and the mother of four of the defendant's sons. Hope lives part-time with Karen. Both letters contained statements which could be interpreted as threats to kill or do bodily injury to Karen and Hope.
Based on the letters, the state charged the defendant with violating section 836.10, Florida Statutes (2004), entitled “Written threats to kill or do bodily injury; punishment.” That statute provides, in pertinent part:
If any person writes or composes and also sends or procures the sending of any letter or inscribed communication, so written or composed, whether such letter or communication be signed or anonymous, to any person, containing a threat to kill or to do bodily injury to the person to whom such letter or communication is sent, or a threat to kill or do bodily injury to any member of the family of the person to whom such letter or communication is sent, the person so writing or composing and so sending or procuring the sending of such letter or communication, shall be guilty of a felony of the second degree....
§ 836.10, Fla. Stat. (2004).3 As noted in State v. Wise, 664 So.2d 1028, 1030 (Fla. 2d DCA 1995), “[a] violation of this statute occurs when: (1) a person writes or composes a threat to kill or do bodily injury; (2) the person sends or procures the sending of that communication to another person; and (3) the threat is to the recipient of the communication or a member of his family.” (citation omitted).
Although the defendant sent only two letters, the state charged the defendant's alleged violation of section 836.10 in four counts: sending the first letter to Karen; sending the first letter to Hope; sending the second letter to Karen; and sending the second letter to Hope.
The jury found the defendant guilty of all four counts. This appeal followed, raising the double jeopardy argument for the first time. We have jurisdiction to consider the argument. See Latos v. State, 39 So.3d 511, 513 (Fla. 4th DCA 2010) () (citation omitted). Our review is de novo. See id. () (citation omitted).
The defendant argues that his convictions violate the double jeopardy clause because, in his view, the allowable unit of prosecution for a violation of section 836.10 should be the number of letters or communications sent, and not the number of people to whom each letter or communication is sent. To support this argument, the defendant relies on the “a/any” test which our supreme court approved in Grappin v. State, 450 So.2d 480 (Fla.1984). There, the court considered whether the unlawful taking of two or more firearms during the same criminal episode was subject to separate prosecution as to each firearm under section 812.014(2)(b) 3., Florida Statutes (1981). Id. at 481. Under that statute, “[i]t is grand theft ... if the property stolen is ... [a] firearm.” 4 The court found that the use of the article “a” in reference to “a firearm” in section 812.014(2)(b) 3. “clearly shows that the legislature intended to make each firearm a separate unit of prosecution.” Id. at 482. The court further found that its construction was consistent with federal court decisions holding that the term “ any firearm” is “ambiguous with respect to the unit of prosecution and ... must be treated as a single offense.” Id. (emphasis added).
The defendant, applying Grappin to this case, argues that the legislature's use of the terms “any letter” and “any person” in section 836.10 indicates the legislature's intent that the allowable unit of prosecution for a violation of section 836.10 should be the number of letters or communications sent, and not the number of people to whom each letter or communication is sent. The defendant further argues that the legislature's use of the word “any” creates at least an ambiguity which, based on the rule of lenity, must be resolved in his favor. See id. () (citing Bell v. United States, 349 U.S. 81, 82, 75 S.Ct. 620, 99 L.Ed. 905 (1955)).
In response, the state argues that the defendant's reliance on Grappin's “a/any” test is misplaced in light of the supreme court's more recent opinion in Bautista v. State, 863 So.2d 1180 (Fla.2003). In Bautista, the court considered whether the occurrence of multiple deaths in a single DUI-related crash allowed for multiple convictions for DUI manslaughter under section 316.193(3)(c) 3., Florida Statutes (2002). Id. at 1181. Under that statute, a person commits DUI manslaughter if the person, by reason of driving under the influence, “causes or contributes to causing ... the death of any human being.” § 316.193(3)(c) 3., Fla. Stat. (2002) (emphasis added). The court held that Grappin's “a/any” test did not preclude multiple convictions under section 316.193(3)(c) 3. Bautista, 863 So.2d at 1188. The court reasoned:
[The defendant's] argument based on the a/any test succeeds only if we were to apply the test as a simple syntactical rule in isolation from the context in which the test arose. However, it would be improper to so isolate this distinction.... [T]he a/any distinction was used in Grappin as one part of a common sense application of well-established rules of statutory interpretation, including reference to the overall statutory scheme and purpose as well as to related cases. Within this context, the a/any test is a valid linguistic tool that is helpful in establishing the Legislature's intended unit of prosecution. However, the a/any test is not an infallible or exclusive indicator of legislative intent. Rather, absent clear legislative intent to the contrary, the a/any test serves as a valuable but nonexclusive means to assist courts in determining the intended unit of prosecution.
... Grappin and its progeny should not be interpreted to suggest that the intended unit of prosecution is automatically rendered ambiguous whenever a statute uses the word “any.” ... The a/any test should not be applied to create an ambiguity where none exists and then to reach a result contrary to clear legislative intent.
Id. at 1187–88 (footnotes omitted).
We find that the reasoning in Bautista applies to this case. “In attempting to discern legislative intent, we first look to the actual language used in the statute.” Id. at 1185. Here, the actual language of the statute proscribes communications “containing a threat to kill or do bodily injury to the person to whom such letter or communication is sent, or a threat to kill or do bodily injury to any member of the family of the person to whom such letter or communication is sent.” § 836.10, Fla. Stat. (2004) (emphasis added). In our view, the statute's plain focus is on “the person” to whom such letter or communication is sent. Accord Smith v. State, 532 So.2d 50, 52 (Fla. 2d DCA 1988) ). Thus, we hold that, under section 836.10, the unit of allowable prosecution is determined by the number of persons to whom a letter or communication is sent, and not the number of letters or communications sent. In short, the statute is not ambiguous and the rule of lenity does not apply in this situation.
Our decision is consistent with our recent holding in Mauldin. There, the defendant pointed a BB gun at two people and threatened to “cap them.” 9 So.3d at 26. He was convicted of two counts of aggravated assault with a deadly weapon and ultimately was sentenced to consecutive sentences on those counts. Id. He later argued that the multiple convictions and consecutive sentences violated double jeopardy. Id. at 27. We held that the multiple convictions and consecutive sentences were permissible. Id. at 28. We reasoned:
It is clear from the assault statute that the legislature intended to punish the criminal defendant separately for each victim the defendant placed in fear by his or her threat. The assault statute define[s] the offense as: ‘[A]n intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such person that such violence is imminent.’ § 784.011(1), Fla....
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