Watts v. State

• Decision Date: 10 November 1983
• Docket Number: No. AN-15,AN-15
• Citation: 440 So.2d 505
• Parties: Willie WATTS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 505

440 So.2d 505

Willie WATTS, Appellant, v. STATE of Florida, Appellee.

No. AN-15.

District Court of Appeal of Florida First District.

Nov. 10, 1983.

Michael E. Allen, Public Defender, and Charlene V. Edwards, Asst. Public Defender, Tallahasee, for appellant.

Jim Smith, Atty. Gen., and Richard A. Patterson, Asst. Atty. Gen., Tallahassee, for appellee.

ROBERT P. SMITH, Jr., Judge.

Watts, a Union Correctional Institution inmate, was charged and tried on two counts of introducing into, or possessing, or attempting to take from the institution a contraband weapon, sec. 944.47(1)(a), (c), Fla.Stat. (1981). ¹ On evidence that he was found simultaneously in possession of two prisonmade knives, Watts was adjudged guilty and concurrently sentenced on two counts of possession. On appeal he complains that two convictions are one too many. We agree.

This issue is purely one of statutory interpretation. Since Watts' possession of knife a was an element of proof separable from his possession of knife b, there is no question of his having twice been placed in jeopardy for the same offense. Neither the fifth amendment of the United States Constitution nor article I, section 9 of the Florida Constitution forbids a double prosecution for conduct that is conceptually divisible into two offenses, each distinguished by a fact or element not present in the other. Albernaz v. State, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); Bell v. State, 437 So.2d 1057 (Fla.1983); Borges v. State, 415 So.2d 1265, 1267 (Fla.1982); McGee v. State, 435 So.2d 854 (Fla. 1st DCA 1983). Albernaz went so far as to say that finding a legislative purpose to make two offenses out of divisible elements in the defendant's conduct--a purpose typically but not necessarily evidenced by two separate statutes--concludes the constitutional inquiry. Albernaz, 450 U.S. at 344, 101 S.Ct. at 1145, 67 L.Ed.2d at 285:

Thus, the question of what punishments are constitutionally permissible is not different from the question of what punishment the Legislative Branch intended to be imposed. Where Congress intended, as it did here, to impose multiple punishments, imposition of such sentences does not violate the Constitution.

Our Supreme Court's recent Bell decision demonstrates that double jeopardy vocabulary is yet necessary to explain why the legislature may not require, even by two statutes distinctively numbered or titled, two judgments for offenses one of which is necessarily included in the other. "[M]erely labeling statutes does not, and cannot, make offenses distinct when in fact they are identical." 437 So.2d at 1058. But we are not concerned here with two statutes or, indeed, with two differently-named offenses, such as were the subject of Bell 's illuminating discussion. Possessing one knife obviously does not include possessing another. Our present task is to determine whether this single statute makes one offense or two out of the defendant's simultaneous possession, shown by coterminous proof, of two contraband knives. The appropriate question is not whether the legislature may constitutionally require the imposition of two judgments, but whether the legislature has done so.

Nor is the question how many sentences may be imposed upon two lawful judgments in consequence of the Florida legislature having rescinded, save for lesser included offenses, the single transaction rule. That judicial rule previously allowed sentencing for only the most serious of adjudicated offenses committed in a single transaction. Simmons v. State, 151 Fla. 778, 10 So.2d 436 (1942). Section 775.021(4), Florida Statutes (1981), ² has now "abrogated the single transaction rule," Borges, 415 So.2d at 1266, and requires separate sentences upon properly adjudicated offenses within "one criminal transaction or episode" if the judgments are based on "two or more criminal statutes." Even absent Bell 's double jeopardy questions, determining the appropriateness of two or more sentences can be difficult when the properly adjudicated offenses are catalogued in subsections of a single statute. See Thomas v. State, 405 So.2d 1015 (Fla. 1st DCA 1981), and Getz v. State, 428 So.2d 254 (Fla. 1st DCA 1982). But the convictions here, for Watts' simultaneous possession ³ of two prisonmade knives, are unambiguously founded upon the same criminal statute, section 944.47(1)(c). For two reasons, therefore, section 775.021(4) cannot control whether Watts' conduct should be considered twice a violation of section 944.47(1)(c): first, because section 775.021(4) does not come into play unless judgments are properly entered "for violation of two or more criminal statutes"; and second, because section 775.021(4) does not say, except by excluding sentences for lesser included offenses, ⁴ how many judgments are to be entered for conduct that may be conceived, but need not be, as violating the same statute twice.

The question here, similar to that in Hearn v. State, 55 So.2d 559 (Fla.1951), and identical to that in State v. Grappin, 427 So.2d 760, 761, n. 3 (Fla. 2d DCA 1982), is whether the substantive statute, section 944.47(1)(c), must be interpreted as making Watts' simultaneous possession of two contraband knives two units of prosecution ⁵ despite the absence of time or space differences in his possession, or in its proof, that in common understanding would distinguish his possession of one knife from his possession of the other. We say "must be interpreted" advisedly. A strict reading of the statute is required both by "the well-recognized principle of lenity," which in doubtful cases avoids "turning a single transaction into multiple offenses," ⁶ and by the rule of statutory construction enacted by section 775.021(1):

The provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.

In defining certain other offenses the legislature has satisfactorily dealt with this issue by graduating the severity of the offense, conceived as one, according to the number of articles unlawfully possessed, §§ 831.08, .13, .15, .16, Fla.Stat. (1981) (10 or more forged bank bills or notes, etc., five or more uncurrent bank bills or notes, 10 or more, or less than 10, counterfeit coins); or according to the aggregated value of the affected property, §§ 812.012(9)(c), .014(2) (theft); or according to the weight of the contraband substance, §§ 893.13, .135 (possession of or trafficking in controlled substances). The legislature enacted no similar quantity-conscious element in the conduct proscribed by section 944.47(1)(c), but simply made it "unlawful for any inmate ... to be in actual or constructive possession," without authorization, of "[a]ny firearm or weapon of any kind or any explosive substance." Supra, n. 1.

To this problem of statutory interpretation the courts have brought various analyses. Hearn, considering the defendant's simultaneous larceny of 10 cows and two calves, held there was one larceny though one cow was Adkinson's property and the other animals were Ganey's. Conceiving of the issue as one of double jeopardy rather than one of statutory interpretation--Hearn long antedated the United States Supreme Court decision in Albernaz --the court held that Hearn could not be prosecuted for stealing Ganey's cattle after having been convicted for stealing Adkinson's. There was but one offense "against the public," the court stated, and it was inconsequential that the cattle of two owners were taken. Three justices dissented without writing, so indicating, apparently, their dissatisfaction with turning the decision on the perception that "the offense is the same whether the property stolen belongs to one person or several persons jointly or to several persons each owning separate parts thereof." 55 So.2d at 561.

The Hearn court did not discuss the question more analogous to that presented here: whether Hearn's simultaneous theft or twelve head of cattle constituted one or twelve offenses under a statute proscribing "larceny by stealing any horse, mule, mare, filly, colt, cow, bull, ox, steer, heifer or calf, the property of another." Sec. 811.11, Fla.Stat. (1955).

Decisions since Hearn, touching the issue before us, were gathered in Judge Cowart's opinion for the court in Drakes v. State, 400 So.2d 487 (Fla. 5th DCA 1981). They include Hill v. State, 293 So.2d 79 (Fla. 3d DCA 1974); Avilia v. State, 278 So.2d 298 (Fla. 4th DCA 1973), and Russell v. State, 107 So.2d 801 (Fla. 2d DCA 1958). In Hill the court agreed with appellant's contention that two robbery counts "charged only a single offense" and that "one of the counts must be reversed," although two victims were simultaneously put in fear in the supermarket holdup. Though apparently asked to do so, the court did not reverse one of the judgments, but "remanded for resentencing with directions to treat count one and two as only a single offense." 293 So.2d at 80.

In Avilia, the court precisely addressed the separate judgments of guilt that were entered upon four counts of simultaneously receiving stolen property, divided by the information into "(Count 1) airline tickets of Hart Travel Agency, Inc., (Count 2) travelers checks of Travel Plans, Inc., (Count 3) checks of GAC Finance Corporation of Miami, and (Count 4) check of Atlantic Loan Company of North Dade." The court found that "since there is only one offense there can be only one adjudication and one sentence," 278 So.2d at 299, and remanded for that disposition.

Similarly in Russell, the court directed that "a judgment and sentence for the single offense of grand larceny" be entered for the defendant's simultaneous theft, from the same person, of one briefcase containing unmounted diamonds and a second briefcase containing diamond mounted rings. And in Drakes the court found that the simultaneous theft of disparate...