Ward v. State, 97-3907
| Decision Date | 20 April 1999 |
| Docket Number | No. 97-3907,97-3907 |
| Citation | 730 So.2d 728 |
| Parties | Lonnie WARD, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender; Tracy T. Murphy, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General; L. Michael Billmeier, Assistant Attorney General, Tallahassee, for Appellee.
ON MOTION FOR CLARIFICATION
The state's motion for clarification is granted. We withdraw our earlier opinion, dated February 15, 1999, and substitute the following.
Appellant was convicted, following a jury trial, of armed robbery, armed carjacking and grand theft. He now argues (1) that his convictions of both armed robbery and armed carjacking violate the double jeopardy clauses of the state and federal constitutions because both arose out of a single act, and the elements of the latter are subsumed by the former; and (2) that the trial court should have granted his motion for a judgment of acquittal on the grand theft charge because the evidence was legally insufficient. Having carefully reviewed the record, we conclude that there was sufficient evidence from which a reasonable jury could have found that appellant had committed grand theft. Accordingly, we affirm that conviction without further discussion. However, we are constrained to reverse the armed carjacking conviction.
Viewed in a light most favorable to the state, the evidence established that the victim had parked her vehicle in the lot of a store, and then went into the store to do some shopping. After she had finished shopping, she returned to her vehicle, pushing a cart. She opened the front passenger door and placed her purchases and her purse on the seat. As she was returning the cart, several young males, including appellant, approached her. One of them pointed a gun at the victim and told her to give them her keys and money. Appellant told the victim that the other male would shoot if she did not comply. Appellant then took the keys from the victim and gave them to one of the others. Then all of the young males, including appellant, got into the vehicle and drove off.
Following his apprehension, the state charged appellant with armed robbery, armed carjacking and theft of the vehicle that had been used to drive to the scene. The armed robbery charge was predicated upon the taking of the victim's keys, purse, checkbook and money. It is undisputed that the checkbook and money were in the purse which was, in turn, on the front seat of the vehicle.
Florida has legislatively adopted the test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), for the purpose of determining whether, in the absence of an express statement of legislative intent to punish them separately, offenses arising out of a single criminal transaction or episode may be separately punished. See § 775.021(4)(a), Fla. Stat. (1995) (). Absent an express statement of legislative intent to punish separately two offenses arising out of a single criminal transaction or episode, double jeopardy bars separate convictions and sentences unless each offense requires proof of an element that the other does not. See M.P. v. State, 682 So.2d 79, 81 (Fla.1996)
.
Armed carjacking with a firearm is proscribed by section 812.133(2)(a), Florida Statutes (1995). The state concedes that all of the elements of that offense are subsumed by the offense of armed robbery with a firearm. § 812.13(2)(a), Fla. Stat. (1995). Moreover, there is nothing in either statute expressly authorizing separate convictions and sentences when both offenses arise out of a single criminal transaction or episode. Relying on Brown v. State, 430 So.2d 446 (Fla. 1983), the state argues that appellant's armed robbery and armed carjacking convictions did arise out of separate transactions or episodes. We are unable to agree.
In Brown, the evidence had established that the defendant had entered a store, displayed a firearm and directed a cashier to empty the money from her cash register into a bag. Unable to find anyone to open a second register, the defendant returned to the cashier and directed her to unlock it. Lacking a key, the cashier was unable to do so. She summoned another cashier who, after having been threatened by the defendant, opened the second register and gave up the money. Brown was convicted of two counts of robbery and, following affirmance by the district court of appeal, sought review in the supreme court. The supreme court upheld the two convictions based upon the following analysis:
[T]he money taken by the defendant belonged to a single owner, but it was taken by force, violence, assault, or putting in fear from two separate employees. The taking was from separate cash registers, over the second of which the first employee had no control. The two events were separated in time and each required separate criminal intent. Actual ownership of the money obtained is not dispositive of the question of whether multiple robberies have been committed. What is dispositive is whether there have been successive and distinct forceful takings with a separate and independent intent for each transaction.
Id. at 447 (emphasis added).
Unlike the situation in Brown, here there was only one "forceful taking." All of the victim's property was taken as a part of the same criminal transaction or episode, without any temporal or geographic break. See, e.g., Fraley v. State, 641 So.2d 128 (Fla. 3d DCA 1994)
(); Horne v. State, 623 So.2d 777 (Fla. 1st DCA 1993) (); Nordelo v. State, 603 So.2d 36 (Fla. 3d DCA 1992) (). Accordingly, double jeopardy precludes convictions for both offenses.
Armed robbery with a firearm and armed carjacking with a firearm are both first-degree felonies punishable by imprisonment for a term of years not exceeding life. §§ 812.13(2)(a) & 812.133(2)(a), Fla. Stat. (1995). Both offenses are also...
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