Wheeler v. State

• Decision Date: 16 August 1989
• Docket Number: No. 87-1908,87-1908
• Citation: 14 Fla. L. Weekly 1946,549 So.2d 687
• Parties: 14 Fla. L. Weekly 1946 Larry WHEELER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 687

549 So.2d 687

14 Fla. L. Weekly 1946

Larry WHEELER, Appellant, v. STATE of Florida, Appellee.

No. 87-1908.

District Court of Appeal of Florida,

First District.

Aug. 16, 1989.

Rehearing Denied Oct. 24, 1989.

Michael E. Allen, Public Defender and Kathleen Stover, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen. and Kurt L. Barch, Asst. Atty. Gen., Tallahassee, for appellee.

BARFIELD, Judge.

Larry Wheeler appealed his judgment and sentence for sale of cocaine and possession of cocaine with intent to sell, each a violation of section 893.13(1)(a), Florida Statutes (1985), asserting that multiple punishments for both crimes, arising out of a single transaction involving the same controlled substance, violated double jeopardy principles. We convened en banc to reconcile an internal conflict among decisions of this court and to consider this issue in light of the Second District Court of Appeal's decision in Gordon v. State, 528 So.2d 910 (Fla. 2d DCA 1988), approved, State v. Smith, 547 So.2d 613 (Fla.1989). ¹ While we reach the same conclusion as Gordon, we reject its rationale and hold that the legislative intent, as evinced by the structure of section 893.13(1)(a), was not to punish for both possession of a controlled substance with the intent to sell it and the sale of the same controlled substance in the same transaction. Therefore, we reverse and remand to the trial court for vacation of one of the convictions and for resentencing.

At common law the "single transaction rule" prohibited multiple convictions for offenses arising out of a single transaction where each offense was a facet of the transaction. Simmons v. State, 151 Fla. 778, 10 So.2d 436 (1942); Martin v. State, 251 So.2d 283 (Fla. 1st DCA 1971); Yost v. State, 243 So.2d 469 (Fla. 3d DCA 1971). In 1974, the Florida Legislature created section 775.021, Florida Statutes, which provided the rules of construction for the new criminal code. Section 775.021(4), enacted in 1976, ² abrogated the "single transaction rule." Borges v. State, 415 So.2d 1265 (Fla.1982). The 1983 legislature amended section 775.021(4) to incorporate the Blockburger test. ³ In Carawan v. State, 515 So.2d 161, 166-67 (Fla.1987), the Florida Supreme Court cautioned that the legislature intended section 775.021(4) and its incorporation of Blockburger to be a rule of construction only and not to carry the weight of constitutional law, and warned that "an exclusive Blockburger analysis sometimes leads to a result contrary to common sense." The court recognized the power of the legislature to define crimes and punishments, subject to constitutional limitations, but presumed that the legislature would not exercise this prerogative by punishing the same offense under more than one statutory provision, "since the legislature can achieve the same result with greater economy by merely increasing the penalty for the single underlying offense." Id. at 164.

The Carawan court found that, absent a clear indication of the legislative intent, ⁴ it must first be determined whether under Blockburger the two offenses are equivalent or separate. If the offenses are equivalent, multiple punishments are presumed improper in the absence of express legislative authorization. If the offenses are separate, multiple punishments are presumed intended, "a presumption that nevertheless can be defeated by evidence of a contrary legislative intent." Id. at 165.

If the Blockburger test for separate offenses is met, but there is a reasonable basis for concluding that a contrary intent exists, Carawan then applies the "rule of lenity": "Where there is a reasonable basis for concluding that the legislature did not intend multiple punishments, the rule of lenity contained in section 775.021(1) and our common law requires that the court find that multiple punishments are impermissible." Id. at 168. The court noted that by its own terms the rule of lenity comes into play only "when legislative intent is equivocal as to the issue of multiple punishments." Id. ⁵

The 1988 legislature, apparently in response to Carawan, amended section 775.021 by adding subsection (4)(b), which states that "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 rule of lenity ... to determine legislative intent" unless the offenses require identical elements of proof, are degrees of the same offense or are lesser included offenses. Chapter 88-131, section 7, Laws of Florida. This amendment limits application of the rule of lenity when there is no evidence of legislative intent, but does not affect analysis of the legislative intent as evidenced by the statute itself.

Wheeler was convicted and sentenced separately for possession of cocaine with intent to sell and sale of cocaine, both offenses prohibited by section 893.13(1)(a), Florida Statutes. The structure of section 893.13(1)(a) indicates that sale and possession with intent to sell are alternative ways of violating this particular subsection of the statute and that the legislature intended by this subsection to punish either the completed sale, manufacture or delivery of an illegal drug, or the frustrated sale, manufacture or delivery of the drug (by charging possession of the drug with the intent to sell, manufacture or deliver it), but not both when the same drug and the same transaction are involved. In other words, the legislature intended that in such a circumstance there has been only one violation of the subsection. It is logical to assume that if a contrary result had been intended, the legislature would have proscribed each offense in separate subsections of the statute, as it did with simple possession of a controlled substance in section 893.13(1)(e).

Given this clear indication in the statute itself of a legislative intent not to punish these offenses separately, statutory construction using the Blockburger test of separate offenses and the Carawan rule of lenity becomes unnecessary. The 1988 amendment to section 775.021, therefore, has no effect on this court's determination that the legislature intended to punish as one violation of section 893.13(1)(a) the sale, manufacture, or delivery of an illegal drug where the defendant possessed the same drug with the intent to sell, manufacture, or deliver it. Any issue regarding the retroactivity of the 1988 amendment and the ex post facto clauses of the state and federal constitutions is not implicated in this case. ⁶

This court has previously concluded, albeit based on a different rationale, that a person cannot be convicted and sentenced for both sale of a controlled substance and possession of the same substance with the intent to sell or deliver it when the offenses arose simultaneously from a single drug transaction and involved the same drug. Fletcher v. State, 428 So.2d 667 (Fla. 1st DCA 1982), review denied, 430 So.2d 452 (Fla.1983). The court initially reasoned that Fletcher committed two offenses prohibited by section 893.13(1)(a) and thus did not violate "two or more criminal statutes" as required by the pre-1983 section 775.021(4) for multiple punishment. On a motion for rehearing, the court held that under Blockburger, possession with intent to sell was a lesser included offense of sale since it contained no elements of proof not also required to prove sale. ⁷

However, the Blockburger analysis in Fletcher is at odds with the Florida Supreme Court's holding in Smith v. State, 430 So.2d 448 (Fla.1983). Applying section 775.021(4) and Blockburger, the court in Smith determined that possession of a controlled substance in violation of section 893.13(1)(e), Florida Statutes (1979), ⁸ was not an offense included in the sale of a controlled substance proscribed by section 893.13(1)(a). See also, Portee v. State, 447 So.2d 219 (Fla.1984) (following Smith, defendant properly convicted and sentenced for sale and possession of more than five grams of marijuana); cf. State v. Daophin, 533 So.2d 761 (Fla.1988) (simple possession is not a necessarily lesser included offense of trafficking by delivery). We recede from Fletcher insofar as it is inconsistent with the Supreme Court's decision in Smith v. State and our decision today.

The Fourth and Second District Courts of Appeal have also recently addressed the issue of whether a defendant can be convicted and sentenced for both sale of a controlled substance and possession with intent to sell the same substance. In Smith v. State, 524 So.2d 461 (Fla. 4th DCA 1988), approved, State v. Smith, 547 So.2d 613 (Fla.1989), the court held that multiple punishment was impermissible, relying on Fletcher and Carawan, and acknowledging conflict with the Second District Court of Appeal's opinion in Dukes v. State, 464 So.2d 582 (Fla. 2d DCA 1985). In Dukes, the court held that since the crime of sale does not require proof of possession and the crime of possession with intent to sell does not require proof of sale, the two are separate offenses because each requires proof of an element which the other does not. However, in Gordon v. State, the Second District Court of Appeal receded from this holding in Dukes.

In Gordon, the court held that section 893.13(1)(a) lacked any statement of legislative intent concerning whether the two offenses should be punished separately or as one crime, and rejected the argument that inclusion of both offenses in the same subsection of the statute reflects clear legislative intent that the offenses are the same. It concluded that the Blockburger test for separate offenses was not met because both offenses contained as an element some sort of possession (actual or constructive), both offenses were general intent crimes, and "in proving the elements of the crime of sale the prosecution cannot also help but prove the elements of possession-with-intent-to-sell." 528 So.2d at 913. The...