Valdes v. State
| Decision Date | 14 November 2007 |
| Docket Number | No. 3D05-2153.,3D05-2153. |
| Parties | Eli Enrique VALDES, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, and Maria E. Lauredo, Assistant Public Defender, for appellant.
Bill McCollum, Attorney General, and Jill Kramer Traina, Assistant Attorney General, for appellee.
Before GERSTEN, C.J., and SHEPHERD and ROTHENBERG, JJ.
The defendant, Eli Enrique Valdes, appeals the judgment of conviction and sentence imposed after a jury finding of guilt for three counts of attempted second degree murder with a firearm; one count of discharging a firearm from a vehicle in violation of section 790.15(2), Florida Statutes (2003); and one count of shooting into an occupied vehicle in violation of section 790.19, Florida Statutes (2003). The defendant claims that: (1) that his convictions for attempted second degree murder must be reversed due to the trial court's failure to give a particular jury instruction; (2) dual convictions, arising under one criminal episode, for the offenses of shooting into an occupied vehicle and shooting from a vehicle, violate double jeopardy; and (3) the habitual violent felony offender sentences imposed for the three counts of attempted second degree murder must be stricken because the Prison Releasee Reoffender Act does not permit equal concurrent sentences as both an habitual violent felony offender and a prison releasee reoffender. While we find no merit regarding the defendant's first two claims, we do with his third claim. We, therefore, affirm the defendant's convictions and remand with instructions to the trial court to strike the concurrent thirty-year habitual violent felony offender sentences.
The facts are as follows: Natalie Gianella, Rocio Rodriguez, and a minor, A.R., were traveling in Rodriguez's vehicle when the defendant pulled alongside the vehicle, argued with Gianella, and fired four shots at the occupants of the vehicle, striking Gianella twice.
During the charge conference, defense counsel requested that the jury be instructed as to the available lesser-included offenses, and specifically requested that as to the attempted second degree murder charges, the jury be instructed on the lesser-included offenses of aggravated battery and attempted voluntary manslaughter. Attempted voluntary manslaughter is a necessarily lesser-included offense of attempted second degree murder, and that instruction was given. Aggravated battery is a category II, permissive lesser-included offense of attempted second degree murder. This instruction was not given as the statutory elements of aggravated battery were not alleged in the information. The defendant concedes that the failure to instruct the jury as to aggravated battery, as a lesser-included offense of attempted second degree murder, was not error.
The defendant, however, claims that the trial court erred in failing to instruct the jury as to attempted aggravated battery as a lesser-included offense of attempted second degree murder. We disagree.
Attempted aggravated battery is a permissive lesser-included offense of attempted second degree murder, not a necessarily lesser-included offense of attempted second degree murder. Therefore, the trial court was not required to provide that instruction to the jury unless the instruction was properly requested, the information alleged all of the statutory elements of the permissive lesser-included offense, and the evidence adduced at trial established all of these elements. See Jones v. State, 666 So.2d 960, 963 (Fla. 3d DCA 1996). Because the defendant did not request that this instruction be given, the trial court did not err in failing to give it. Furthermore, because defense counsel neither requested that an attempted aggravated battery instruction be given, nor objected when the instruction was not provided to the jury, the failure to provide the instruction to the jury was not preserved for appellate review.
The defendant raises a double jeopardy claim for the first time on appeal. Although the defendant failed to raise the issue below, a double jeopardy violation constitutes fundamental error, see State v. Johnson, 483 So.2d 420, 421 (Fla.1986), and a claim of fundamental error may be raised for the first time on direct appeal. See Sanford v. Rubin, 237 So.2d 134, 137 (Fla.1970); Corvo v. State, 916 So.2d 44, 46 (Fla. 3d DCA 2005); Barfield v. State, 871 So.2d 929, 930-31 (Fla. 5th DCA 2004). We, therefore, address the merits of the defendant's claim.
The defendant claims that his convictions for shooting from a vehicle in violation of section 790.15(2), Florida Statutes (2003), and shooting into an occupied vehicle in violation of section 790.19, Florida Statutes (2003), violate double jeopardy, as the offenses arose out of the same criminal episode. We disagree.
Section 790.15, Florida Statutes (2003), provides, in pertinent part, as follows:
790.15 Discharging firearm in public. —
(1) Except as provided in subsection (2) or subsection (3), any person who knowingly discharges a firearm in any public place or on the right-of-way of any paved public road, highway, or street or whosoever knowingly discharges any firearm over the right-of-way of any paved public road, highway, or street or over any occupied premises is guilty of a misdemeanor of the first degree....
(2) Any occupant of any vehicle who knowingly and willfully discharges any firearm from the vehicle within 1,000 feet of any person commits a felony of the second degree....
The defendant was convicted under section 790.15(2) of this statute. Section 790.19, Florida Statutes (2003), provides, in pertinent part, as follows:
790.19 Shooting into or throwing deadly missiles into dwellings, public or private buildings, occupied or not occupied; vessels, aircraft, buses, railroad cars, streetcars, or other vehicles.—Whoever, wantonly or maliciously, shoots at, within, or into, or throws any missile or hurls or projects a stone or other hard substance which would produce death or great bodily harm, at, within, or in any public or private building, occupied or unoccupied, or public or private bus or any train, locomotive, railway car, caboose, cable railway car, street railway car, monorail car, or vehicle of any kind which is being used or occupied by any person, or any boat, vessel, ship, or barge lying in or plying the waters of this state, or aircraft flying through the airspace of this state shall be guilty of a felony of the second degree....
The Fifth Amendment to the United States Constitution and Article I, Section 9, of the Florida Constitution, protect criminal defendants from multiple convictions and punishments for the same offense. See U.S. Const. Amend. V; Art. I, § 9, Fla. Const. "[A]bsent a clear statement of legislative intent, the test of whether multiple convictions for an act or acts committed during a single episode constitute double jeopardy is governed by Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)." State v. Florida, 894 So.2d 941, 945 (Fla.2005). "Under Blockburger, dual convictions are authorized only if each offense contains an element that the other does not." Florida, 894 So.2d at 945. The Blockburger test has been codified in section 775.021(4), Florida Statutes (2003), which provides as follows:
(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.
In applying section 775.021, the court must first determine whether under subsection (4)(a) and Blockburger, the offenses require proof of identical elements. If they do, double jeopardy bars the defendant's convictions for both offenses. Next, if the offenses do not have identical elements, the court must determine whether any of the three statutory exceptions contained in subsection (4)(b) apply. If any of the exceptions apply, double jeopardy bars convictions for both offenses. Florida, 894 So.2d at 945.
It is clear, and defense counsel concedes, that under the Blockburger test, as codified in section 775.021(4)(a), section 790.15(2), discharging a firearm from a vehicle within 1,000 feet of any person, and section 790.19, shooting or throwing a deadly missile at, within, or into any building, vehicle, aircraft or vessel, each contain an element distinct from the other. Section 790.15(2) requires the willful discharge of a firearm from a vehicle within 1,000 feet of a person. Section 790.19 requires not mere willfulness, but malice, and does not require that any person be within the structure or near the structure at the time. Therefore, separate convictions are authorized unless these offenses fall within one of the exceptions in subsection (4)(b). Subsection (4)(b)(1), which concerns offenses that "require identical elements of proof," does not apply here. As previously discussed, pursuant to ...
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