Vause v. State
| Decision Date | 29 August 1985 |
| Docket Number | 63258,Nos. 63107,s. 63107 |
| Citation | 476 So.2d 141,10 Fla. L. Weekly 464 |
| Parties | 10 Fla. L. Weekly 464 Willie F. VAUSE, Petitioner, v. STATE of Florida, Respondent. STATE of Florida, Petitioner, v. Willie F. VAUSE, Respondent. |
| Court | Florida Supreme Court |
Philip J. Padovano, Tallahassee, for petitioner/respondent, Willie F. vause.
Jim Smith, Atty. Gen., and John W. Tiedemann, Asst. Atty. Gen., Tallahassee, for respondent/petitioner, State of Fla.
We accepted jurisdiction of Vause v. State, 424 So.2d 52 (Fla. 1st DCA 1982), because of conflict with State v. Carpenter, 417 So.2d 986 (Fla.1982). We have jurisdiction, article V, section 3(b)(3), Florida Constitution, and approve in part and quash in part Vause.
The state indicted Vause for first-degree premeditated murder (section 782.04, Florida Statutes (1979) ), shooting at or into an occupied vehicle (section 790.19, Florida Statutes (1979) ), and use of a firearm during commission of a felony (section 790.07, Florida Statutes (1979) ). The jury convicted Vause of third-degree murder and of the other two counts as charged. On appeal the district court affirmed all three convictions. Relying on State v. Hegstrom, 401 So.2d 1343 (Fla.1981), however, the court reversed the sentences for everything but third-degree murder, finding shooting into a vehicle to be an element of the murder and use of a weapon during commission of a felony to be a lesser included offense of the murder.
We recently overruled Hegstrom and held that the underlying felony is not a lesser included offense of felony murder. State v. Enmund, 476 So.2d 165, (Fla.1985). We hold, therefore, that the district court should not have reversed Vause's sentence for shooting into a vehicle.
We also recently held that the use of a firearm during the commission of a felony is not a necessarily lesser included offense of first-degree murder. State v. Baker, 456 So.2d 419 (Fla.1984). A review of subsections 782.04(4) and 790.07(2) demonstrates that it is possible to commit each of those crimes without necessarily committing the other because they contain different elements. See State v. Carpenter. Use of a firearm during commission of a felony, therefore, is not a necessarily lesser included offense of third-degree murder, and the district court should not have reversed the sentence for that conviction.
Accordingly, we quash the reversal of Vause's sentences for shooting into an occupied vehicle and for use of a firearm and direct that the district court affirm those convictions and sentences. We approve the remainder of Vause.
It is so ordered.
I agree that section 790.19, Florida Statutes (1979), is not a lesser included offense of section 782.04, Florida Statutes (1979), and section 790.07, Florida Statutes (1979), is not a lesser included offense of 790.19. I agree also that the conviction and sentence for violating section 790.19 are proper.
I differ from the majority in two respects and write to express my rationale for concluding that the conviction and sentence here for shooting or throwing deadly missiles at, within, or into a vehicle used or occupied by any person is proper. 1 First, Vause fired three shots at the two vehicles, both of which were occupied. Two of these shots missed and form a proper basis for the conviction and sentence. My concurrence is based on this ground. Second, it is uncontroverted that the shot which did enter the vehicle in which the victim was riding was the (lethal) act which caused the homicide. This raises the question in my mind as to whether the legislature intends that there be convictions for both a homicide and the act which causes the homicide.
Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), and Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981), make it clear with respect to cumulative sentences imposed in a single trial that the dispositive question is whether the legislature intended to authorize separate punishments for the two crimes, not merely whether the Blockburger 2 test is passed.
With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.
Hunter, 459 U.S. at 366, 103 S.Ct. at 678.
The Blockburger test is a "rule of statutory contruction," and because it serves as a means of discerning congressional purpose the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent.
Albanez at 340, 101 S.Ct. at 1143.
Turning then to the critical question of legislative intent, did the legislature, in defining the various homicide offenses and the various potentially lethal criminal acts that can result in a homicide, intend that there be convictions on both the homicide and the act which caused the homicide? Every homicide is caused by some act. If the legislature intended to punish both the homicide and the lethal act, convictions of homicide would almost invariably be accompanied by at least one lesser conviction. I am persuaded that the legislature did not intend such result. In so concluding, I am influenced by the reasoning of Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985). In Ball, the defendant was charged, convicted, and sentenced for receiving a firearm shipped in interstate commerce and for possessing that firearm. Each of the two offenses contained an element the other did not have and thus met the Blockburger test. The Court recognized that while it was permissible to prosecute the two violations simultaneously, this was not to say that Congress intended two punishments and that the "assumption underlying the Blockburger rule is that Congress ordinarily does not intend to punish the same offense under two different statutes." Ball, 105 S.Ct. at 1672. The Court then reasoned that illegal receipt of a firearm necessarily included illegal possession of a firearm and that Congress knew this, and concluded that Congress did not intend two convictions for the same criminal act. Reasoning by analogy from Ball, I...
To continue reading
Request your trial
-
Carawan v. State
...defensible to conclude that the legislature did not intend to impose cumulative punishments. See my special concurrence to Vause v. State, 476 So.2d 141 (Fla.1985), for an extended explanation of why this is so. Here, however, where appellant unquestionably committed all three offenses, all......
-
Linehan v. State
...If each offense contains an element that the other does not have, then the offenses are separate not lesser included. Vause v. State, 476 So.2d 141 (Fla.1985); State v. Boivin, --- So.2d ----, No. 64,368 (Fla. Aug. 29, 1985); State v. Baker, 456 So.2d 419 (Fla.1984); Scott v. State, 453 So.......
-
Gonzalez v. State, 88-2542
...reversed on other grounds, the supreme court approved the First District's opinion as it related to the instant issue in Vause v. State, 476 So.2d 141 (Fla.1985). In Pinkerton v. State, 534 So.2d 425 (Fla. 5th DCA 1988), the Fifth District similarly disapproved enhancement in a third degree......
-
Barton v. State, 85-1179
...the other does not, without regard to the accusatory pleading or the proof adduced at trial." 476 So.2d at 191. See also Vause v. State, 476 So.2d 141 (Fla.1985), Shaw, J., Thus, within a span of one day, the supreme court issued Snowden, which states that the legislative intent as to multi......