Arrestable Offenses / Crimes under Fla. Stat. 775.021
CopyCited 261 times | Published | Supreme Court of Florida | 12 Fla. L. Weekly 445
...On the other hand, if the test is not met, the court must treat the offenses as equivalent based on a presumption that the offenses are the same and that the legislature does not intend to punish the same offense twice. We have recognized that the legislature has codified this rule of construction in section 775.021(4), Florida Statutes (1985): Whoever, in the course of one criminal transaction or episode, commits separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and th...
...her does not, without regard to the accusatory pleading or the proof adduced at trial. The third rule is that courts must resolve all doubts in favor of lenity toward the accused. This "rule of lenity," a part of our common law, has been codified in section 775.021(1), Florida Statutes (1985): 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....
...We begin with the area of multiple-punishments law that has caused the most trouble in our courts, the proper application of the Blockburger test and its relationship to the question of legislative intent. The legislative history indicates that the final sentence of section 775.021(4), which was added in the 1983 amendments, specifically was intended to adopt the Blockburger analysis elaborated in the federal courts for more than a half century....
...United States,
445 U.S. 684, 691-92,
100 S.Ct. 1432, 1437-38,
63 L.Ed.2d 715 (1980); Houser v. State,
474 So.2d 1193, 1196 (Fla. 1985); State v. Baker,
456 So.2d 419, 421-22 (Fla. 1984). We conclude that the legislature itself was fully aware of this fact and intended section
775.021(4) to be treated as a rule of construction, as reflected in the legislative history of the 1983 amendment....
...Moreover, we have explicitly recognized that the Blockburger test itself, as a rule of construction, will not prevail over actual intent. Houser v. State,
474 So.2d 1193, 1196 (Fla. 1985); Rotenberry v. State,
468 So.2d 971, 975 (Fla. 1985). Thus, the only purpose of section
775.021(4) is as an aid in determining the intent behind particular penal statutes when that intent is unclear....
...Next, the court must determine whether each offense as defined in the statute requires proof of a fact that the other does not, without regard to the accusatory pleadings or proof adduced at trial. Blockburger v. United States,
284 U.S. 299, 304,
52 S.Ct. 180, 182,
76 L.Ed. 306 (1932); §
775.021(4), Fla....
...onflict arises that requires resort to the third rule of construction applicable to this problem, the rule of lenity. Initially, we find that Florida's lenity requirement constitutes a rule of construction coequal to the Blockburger test codified in section 775.021(4)....
...As is self-evident, the presumption created by an exclusive Blockburger analysis may in fact lead to a result contrary to that indicated by the rule of lenity. Blockburger favors multiple punishments wherever each crime has an element not shared by the other. Section 775.021(1), on the other hand, will favor lenity to the accused wherever it is possible to conclude that multiple punishments were not intended, no matter what the elements of the crimes are....
...tent is unclear. Moreover, by its own terms the rule of lenity comes into play only where the statutes in question are susceptible of differing constructions, that is, when legislative intent is equivocal as to the issue of multiple punishments. See § 775.021(1), Fla. Stat. Thus, 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....
....e., the battering of a human being in a manner likely to cause grievous harm. As a result, reason dictated that the legislature did not intend multiple punishments. The rule of lenity required that we resolve the issue in favor of the accused under section 775.021(1), Florida Statutes, and in a way that best preserved the legislative prerogative to define punishments....
...ngle underlying act. [8] Finding no evidence that the legislature intended multiple punishments under the circumstances at hand, we must conclude that it is most reasonable to believe that no such intent existed. The *171 rule of lenity contained in section 775.021(1), Florida Statutes, thus compels us to resolve all doubts in favor of appellant....
...l court or jury may impose cumulative punishment under such statutes in a single trial. Missouri v. Hunter,
459 U.S. 359, 366, 368-69,
103 S.Ct. 673, 678, 679,
74 L.Ed.2d 535 (1983). Our only task in this instance is to determine legislative intent. Section
775.021(4), Florida Statutes (1983), provides that [w]hoever, in the course of one criminal transaction or episode, commits separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal...
...ts intent by the use of the words in the statute. S.R.G. Corp. v. Department of Revenue,
365 So.2d 687 (Fla. 1978); Thayer v. State,
335 So.2d 815 (Fla. 1976); Van Pelt v. Hilliard,
75 Fla. 792,
78 So. 693 (1918). There is nothing in the language of section
775.021(4) or the statutes *172 defining the offenses [1] of attempted manslaughter or aggravated battery to suggest that the legislature meant anything other than what it so clearly stated: offenses with unique elements are separate offenses and shall be separately punished....
...The second proposition is that the legislature is not presumed to have intended to punish the same offense cumulatively. Ball v. United States,
470 U.S. 856,
105 S.Ct. 1668,
84 L.Ed.2d 740 (1985). This proposition does not apply where, as here, the legislative will is clearly to the contrary. Missouri v. Hunter ; §
775.021(4). The third proposition is the so-called rule of lenity, [2] codified as section
775.021(1), Florida Statutes (1983): 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. (Emphasis added.) By its terms, however, this rule only comes into play if the statutory language is susceptible to differing constructions. Section
775.021(4) is so clear and unambiguous and the meaning of its words so well established that section
775.021(1) is simply not applicable. Moreover, a rule of general construction, such as section
775.021(1), does not stand on the same level as a specific legislative directive, such as section
775.021(4)....
...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 three caused separate evils, and all three meet the criteria of section
775.021(4) for separate convictions and punishments, the legislative directive to punish cumulatively cannot be said to be unreasonable....
...and because the two offenses, importation of drugs and distribution of drugs, address "separate evils."
450 U.S. at 343,
101 S.Ct. at 1144. [6] When it substantially amended and recodified the criminal code in 1974, the bill title expressly created section
775.021 for the purpose of providing rules of construction and placed a caption on this section to reflect this purpose. Ch. 74-383, Laws of Fla. The bill that codified the Blockburger test in 1983 expressly placed section
775.021(4) under the same caption, "Rules of construction." Ch....
...We must assume that the legislature was aware of the legal meaning of this caption, Davis v. Strople,
39 So.2d 468, 470-71 (Fla. 1949), and therefore intended the amended section to be treated the same as any other rule of construction. We so construe section
775.021(4) based on the fact that the legislature itself inserted the caption in question and did not later remove or amend it. Berger v. Jackson,
156 Fla. 251, 256,
23 So.2d 265 (1945). We note that this conclusion is strongly reinforced both by the legislative history cited above and the derivation of section
775.021(4) from a federal rule of construction....
CopyCited 212 times | Published | Supreme Court of Florida | 1993 WL 406369
...ces from multiple crimes committed during a single criminal episode have been enhanced through the habitual offender statutes, the total penalty should then be further increased by ordering that the sentences run consecutively. The State argues that section 775.021(4), Florida Statutes (1991), which authorizes the trial court to impose concurrent or consecutive sentences, applies to habitual offender sentences because section 775.021(2) states that "[t]he provisions of this chapter are applicable to offenses defined by other statutes, unless the code otherwise provides." In Daniels, we expressly rejected this argument and stated: "The subsequent addition of subsection (b) to section 775.021(4) was designed to overrule this Court's decision in Carawan v....
CopyCited 164 times | Published | Supreme Court of Florida
...Subsection
775.087(2), Florida Statutes (1981), provides that any person who had in his possession a firearm during the commission of certain specified felonies, including robbery, shall be sentenced to a minimum term of imprisonment of three calendar years. Subsection
775.021(4), Florida Statutes (1981), requires separate sentences for separate offenses [1] arising from a single criminal transaction or episode and allows the trial court to order the sentences served concurrently or consecutively....
...As we noted in Owens, the legislature reserved to itself, at the time it created the Parole and Probation Commission, the power to proscribe consideration for parole for those convicted of certain statutorily designed classes of crime. In the present case the state contends, in essence, that subsections
775.021(4) and
775.087(2), when read in pari materia, amount to a delegation of the parole authority to the trial court, whereby, in the exercise of its discretion, it may deny parole for three years multiplied by the number of separate offenses of which a defendant is convicted. We do not believe the legislature intended such a result as the sentence under review *4 here when it added subsection (4) to section
775.021....
...mandatory minimums. Reading section
775.087(2), Florida Statutes (1981), providing that a person who had a firearm in his possession during the commission of a robbery shall be sentenced to a minimum of three years imprisonment, in conjunction with section
775.021(4), Florida Statutes (1981), requiring separate sentences for separate criminal offenses with the trial judge making the determination as to whether these sentences are to be served concurrently or consecutively, I can only conclude t...
...Certainly a defendant who commits multiple crimes should be punished more severely than one who commits only one crime. The legislature did not intend that crime be "cheaper by the dozen." The constitution does not proscribe consecutive, three-year mandatory minimums in the present case. Section 775.021(4) requires separate sentences and gives the trial court the discretion to determine whether they are to be served consecutively....
...udication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively. [2] § 775.021(1), Fla....
CopyCited 134 times | Published | Supreme Court of Florida | 1999 WL 817189
...Although it has been asserted that the appellate courts' differing interpretations of section
893.135(1)(c)1 alone render the statute ambiguous, see Dial,
730 So.2d at 813 (Klein, J., specially concurring), we find that a "strict construction" of these criminal statutes, as is mandated by section
775.021(1), Florida Statutes (1995), supports the interpretation given by the First District and Second District....
...State,
602 So.2d 1288, 1290 (Fla.1992). "The rules of statutory construction require courts to strictly construe criminal statutes, and that `when the language is susceptible to differing constructions, [the statute] shall be construed most favorably to the accused.'" Id. (quoting §
775.021(1), Fla.Stat....
CopyCited 130 times | Published | Supreme Court of Florida | 34 Fla. L. Weekly Supp. 116, 2009 Fla. LEXIS 148, 2009 WL 217976
...il" standard has proven difficult to apply and has strayed from the plain language of the governing statute, we now adopt the approach set forth in Justice Cantero's special concurrence in State v. Paul,
934 So.2d 1167 (Fla.2006). Thus, we hold that section
775.021(4)(b)(2), Florida Statutes (2008), prohibits "separate punishments for crimes arising from the same criminal transaction only when the statute itself provides for an offense with multiple degrees." Paul,
934 So.2d at 1176 (Cantero, J., specially concurring)....
...a firearm from a vehicle within 1000 feet of a person and shooting into an occupied vehicle violated double jeopardy. In evaluating whether Valdes's convictions fell under the subsection (4)(b)(2) exception to the Blockburger [2] test as codified in section
775.021(4), that the offenses are degrees of the same offense, the Third District recognized that "[o]ffenses are considered degree variants of the same core offense where both crimes intend to punish the `same primary evil.'" Valdes,
970 So.2d at 419 (citing Paul,
934 So.2d at 1175)....
...1997) ("Legislative intent is the polestar that guides our analysis in double jeopardy issues...."). Absent a clear statement of legislative intent to authorize separate punishments for two crimes, courts employ the Blockburger test, as codified in section
775.021, Florida Statutes (1997), to determine whether separate offenses exist. See Gaber v. State,
684 So.2d 189, 192 (Fla.1996) ("[A]bsent an explicit statement of legislative intent to authorize separate punishments for two crimes, application of the Blockburger `same-elements' test pursuant to section
775.021(4) ......
...[5] Both parties and both district courts of appeal agree with this simple conclusion. Because there is no clear legislative intent to be discerned, the next inquiry is whether separate punishments for the two convictions violate the Blockburger test, as codified in section 775.021(4)....
...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. § 775.021(4), Fla....
...was being used or occupied by any person; and (3) he or she did so wantonly or maliciously. §
790.19, Fla. Stat. (2003). Thus, separate convictions for these two offenses are authorized unless the offenses fit within one of the three exceptions in section
775.021(4)(b)....
...by first reviewing our case law interpreting subsection (4)(b)(2), and then explaining why we adopt the approach set forth in Justice Cantero's special concurrence in State v. Paul,
934 So.2d 1167 (Fla.2006). This Court's Jurisprudence Interpreting Section
775.021(4)(b)(2) More than twenty years ago, this Court recognized that there was considerable confusion in the law of this state concerning the proper method of construing criminal statutes in light of the prohibition against double jeopardy....
...s never resort to rules of construction where the legislative intent is plain and unambiguous." [ Carawan, 515 So.2d] at 165. The second step, absent a specific statement of legislative intent in the criminal offense statutes themselves, is to apply section 775.021(4), [6] codifying Blockburger v....
...180,
76 L.Ed. 306 (1932), to the statutory elements of the criminal offenses. We added judicial gloss by assuming that the legislature "does not intend to punish the same offense under two different statutes," and that the courts should not mechanically apply section
775.021(4) so as to obtain "unreasonable results." Carawan,
515 So.2d at 167. Subsection
775.021(4) was to be treated as an "aid" in determining legislative intent, not as a specific, clear, and precise statement of such intent. To assist in this analysis, courts are to make a subjective determination of whether the two statutory offenses address the "same evil." Id. at 168. The third rule or step is the application of the rule of lenity codified as section
775.021(1), Florida Statutes (1985).[n....
...n there is doubt about legislative intent. Thus we concluded that, by its terms, the rule of lenity controls and prohibits multiple punishments for the two offenses, even if each contains a unique statutory element and are separate offenses under subsection
775.021(4). [N.4] "(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." §
775.021(1), Fla. Stat. (1985). State v. Smith,
547 So.2d 613, 615 (Fla. 1989), superseded by statute, ch. 88-131, § 7, Laws of Fla. However, during the next legislative session following Carawan, the Legislature effectively overruled Carawan by amending section
775.021(4) to include a specific statement of legislative intent: (4) (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 adjud...
...ved a decision affirming the defendant's convictions for attempted first-degree murder, aggravated battery, and felony causing bodily injury: Extended to its logical extreme, a broad reading of Sirmons and the second statutory exception would render section 775.021 a nullity....
...Indeed, the plethora of criminal offenses is undoubtedly derived from a limited number of "core" crimes. In no uncertain terms, the Legislature specifically expressed its intent that criminal defendants should be convicted and sentenced for every crime committed during the course of one criminal episode. See § 775.021(4)(b)....
...iolation, are consistent with the limited statutory exception. However, extension of this exception to multiple convictions for attempted first-degree murder, aggravated battery, and felony causing bodily injury would contravene the plain meaning of section 775.021....
...ive intent because the plain language of the statute does not mention the "same evil" test. Id. Rather, the statute "simply prohibits separate punishments for crimes that `are degrees of the same offense as provided by *1075 statute. '" Id. (quoting § 775.021(4)(b)(2), Fla....
...in the meaning of Florida and Gordon, which found battery and attempted murder to be separate evils, but they derive from the same core offense of lewd or lascivious conduct involving children." Id. at 1180. The Proper Test for Double Jeopardy under Section
775.021(4)(b)(2) In Valdes and Lopez-Vazquez, the Third and Fifth Districts applied the "primary evil" test, as set forth in the Gordon, Florida, and Paul line of cases, to determine whether a defendant's dual convictions under sections
790.15(2) and
790.19, arising out of the same episode, violate double jeopardy....
...plain and ordinary meaning of the language used by the Legislature."). By applying the "primary evil" gloss to the second statutory exception, we have added words that were not written by the Legislature in enacting the double jeopardy exceptions of section 775.021(4) and specifically subsection (4)(b)(2)....
...ection (4)(b)(2) does not mention whether two offenses share a "core offense" or whether two offenses share a "primary evil." Instead, The statute itself creates an exception for crimes that "are degrees of the same offense as provided by statute. " § 775.021(4)(b)(2), Fla....
...Section
790.19 provides in pertinent part:
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. [6] At the time, section
775.021(4) provided only: 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...
CopyCited 120 times | Published | Supreme Court of Florida | 1989 WL 68818
...The issue presented is whether the legislature intended that the sale or delivery of a controlled substance and possession of that substance with intent to sell, [1] be treated as separate offenses subject to separate convictions and separate punishment. § 775.021(4), Fla....
...ontrol" and "courts never resort to rules of construction where the legislative intent is plain and unambiguous." Id. at 165. The second step, absent a specific statement of legislative intent in the criminal offense statutes themselves, is to apply section 775.021(4), codifying Blockburger v....
...180,
76 L.Ed. 306 (1932), to the statutory elements of the criminal offenses. We added judicial gloss by assuming that the legislature "does not intend to punish the same offense under two different statutes," and that the courts should not mechanically apply section
775.021(4) so as to obtain "unreasonable results." Carawan,
515 So.2d at 167. Subsection
775.021(4) was to be treated as an "aid" in determining legislative intent, not as a specific, clear, and precise statement of such intent. To assist in this analysis, courts are to make a subjective determination of whether the two statutory offenses address the "same evil." Id. at 168. The third rule or step is the application of the rule of lenity codified as section
775.021(1), Florida Statutes (1985)....
...n there is doubt about legislative intent. Thus we concluded that, by its terms, the rule of lenity controls and prohibits multiple punishments for the two offenses, even if each contains a unique statutory element and are separate offenses under subsection 775.021(4). Carawan was grounded on our interpretation of legislative intent in enacting subsections 775.021(1) and (4). In the legislative session following the issuance of Carawan, the legislature responded by amending section 775.021(4) to include a specific statement of legislative intent: (4)( 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 adju...
...n. More specifically: *616 (1) The legislature rejects the distinction we drew between act or acts. Multiple punishment shall be imposed for separate offenses even if only one act is involved. (2) The legislature does not intend that (renumbered) subsection 775.021(4)(a) be treated merely as an "aid" in determining whether the legislature intended multiple punishment. Subsection 775.021(4)(b) is the specific, clear, and precise statement of legislative intent referred to in Carawan as the controlling polestar. Absent a statutory degree crime or a contrary clear and specific statement of legislative intent in the particular criminal offense statutes, [5] all criminal offenses containing unique statutory elements shall be separately punished. (3) Section 775.021(4)(a) should be strictly applied without judicial gloss. (4) By its terms and by listing the only three instances where multiple punishment shall not be imposed, [6] subsection 775.021(4) removes the need to assume that the legislature does not intend multiple punishment for the same offense, it clearly does not. However, the statutory element test shall be used for determining whether offenses are the same or separate. Similarly, there will be no occasion to apply the rule of lenity to subsection 775.021(4) because offenses will either contain unique statutory elements or they will not, i.e., there will be no doubt of legislative intent and no occasion to apply the rule of lenity....
...In the second prong to the argument, petitioner argues that the timing and content of chapter 88-131, section 7, show that the legislative intent expressed therein was to override the interpretation we adopted in Carawan and to restore the legislative intent attributed to section 775.021 pre- Carawan....
...SHAW, Justice, concurring in part and dissenting in part. I agree that Carawan v. State,
515 So.2d 161 (Fla. 1987), has been overridden by chapter 88-131, section 7, Laws of Florida. In Carawan, contrary to a plain statement of legislative intent in section
775.021(4), Florida Statutes (1985), we substituted our judgment for that of the legislature in an area where legislative authority is plenary, the definition of criminal offenses and the prescription of punishment. Accordingly, I would hold that the timing and content of chapter 88-131, section 7 shows that it was a legislative interpretation of section
775.021(4), as it has existed since 1983, and not a substantive change. First, the insertion of "act or acts" is clearly aimed at our reliance on a single act in Carawan. The specific statement of intent concerning the relationship of subsection
775.021(4)(a) and subsection
775.021(1), Florida Statutes (Supp. 1988), the rule of lenity, is directly contrary to the relationship envisaged by Carawan. The specific listing of the only three instances where multiple punishment will not be imposed, subsections
775.021(4)(b)1-3, negates the underpinnings of Carawan....
...[1] Second, the legislative amendment contains no substantive change in the statutory test for determining whether multiple punishments shall be imposed. The only effect of the statement of legislative intent is to override Carawan and to reiterate the reading of legislative intent which this Court previously attributed to section 775.021....
...Respondents' argue that receding from Carawan and applying the statement of legislative intent contained in chapter 88-131, section 7, will violate the ex post facto clause by retroactively enhancing punishment. I disagree. The record shows that respondents' crimes were committed in 1986. Section 775.021(4) has prescribed multiple punishments for separate offenses since October 1976....
...More importantly, the majority abdicates this Court's obligation to avoid statutory constructions that lead to absurdity and to apply statutes rationally, according to the principles of our Constitution. For these reasons, the majority interprets subsection 775.021(4), Florida Statutes (Supp....
...Yet this is contrary to the direct holding of Boivin,
487 So.2d at 1038, a pre- Carawan case that the majority holding necessarily recognizes as valid law. Maj. op. at 616-17 (ch. 88-131, § 7, "restore[s] the reading of legislative intent ... previously attributed to section
775.021")....
...See L.T. Davidson, Florida Criminal Sentencing, § 5.013 (Supp. 1989) (listing cases). Presumably they are just as valid as the "strict Blockburger " cases cited favorably by the majority. I cannot agree with the majority's "judicial gloss" that subsection 775.021(4), Florida Statutes (Supp. 1988), constitutes a statement of binding "intent" as to all criminal statutes. The amended statute refers to itself as a "rule of construction," section 775.021(4)(b), Florida Statutes (Supp....
...1973). This necessarily means that rules of construction do not function as a "universal" statement of intent as to each and every enactment in the statute books, as the majority incorrectly states. Similarly, it is absurd to say that, by amending subsection 775.021(4), the 1988 Legislature has provided a definitive and unrebuttable statement of the actual intent underlying every prior criminal law appearing in the statute books....
...If the legislature wants to state its intent as to a group of statutes already on the books, it must do so by amending each and every one of those statutes. [2] Thus, when this Court can discern intent on the face of an unamended statute, it is irrelevant what section 775.021(4) states or what any subsequent legislature has stated....
...This approach was in keeping with the principle that a court will not confront a constitutional issue when there is some other basis for resolving the issues at hand. Accordingly, I now would reach the constitutional issues. I would hold that the rule of lenity arises not merely from section 775.021(1), Florida Statutes (1987), but also from the common law and the due process and double jeopardy clauses of the Florida Constitution....
...a hundred, or a thousand offenses based on a single criminal act. Accordingly, I conclude that the analysis employed in Carawan arises from article I, section 9 of the Florida Constitution, and remains in force notwithstanding the 1988 amendments to section 775.021....
...We address only Gordon because the issue there also controls Smith. [4] "(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." § 775.021(1), Fla....
CopyCited 89 times | Published | Supreme Court of Florida | 40 Fla. L. Weekly Supp. 362, 2015 Fla. LEXIS 1382, 2015 WL 3887433
...2d 79, 81 (Fla. 1996)).
“[A]bsent an explicit statement of legislative intent to authorize separate
punishments for two crimes, application of the Blockburger[ v. United States,
284
U.S. 299 (1932),] ‘same-elements’ test pursuant to section
775.021(4), Florida
Statutes[,] is the sole method of determining whether multiple punishments are
double-jeopardy violations.” Gaber v....
...Stat.
-8-
statutory elements of solicitation are entirely subsumed by the statutory elements
of traveling after solicitation, the offenses are the same for purposes of the
Blockburger same-elements test codified in section 775.021(4), Florida Statutes.
See § 775.021(4)(a), Fla....
CopyCited 89 times | Published | Supreme Court of Florida
...[9] At least three members of the Supreme Court have specifically declared that Harris does not apply to multiple punishment, single trial problems. [10] *1346 Our sole inquiry now is to determine what punishment our legislature authorized for a single criminal transaction involving two or more separate, statutory offenses. Section 775.021(4), Florida Statutes (1979), supplies the answer....
...But we see nothing in Blockburger which bars multiple convictions for lesser included offenses. As a last ditch effort to sustain multiple punishments here, the state argues on the basis of an hypothecated legislative intent that felony murder episodes were to be excluded from the operation of section 775.021(4)....
...wrote double sentences for felony murder and the underlying felony. [13] We reject the state's contention. Judicial decisions before an enactment do not stand as independent beacons of legislative intent to explain an otherwise unambiguous statute. Section 775.021(4) is specific, and the lesser included offenses are exempt from multiple sentencing....
...Although our opinions have not been entirely consistent on whether double jeopardy forbids double convictions as well as double sentencing, [14] the absence of double jeopardy and Blockburger constraints in this situation returns our attention to an analysis of legislative intent. Section 775.021(4), of course, expressly bars only multiple sentences....
...Justice Rehnquist, joined by Chief Justice Burger, also concluded in his dissent that reliance upon Harris was improper. Id. at 700-01,
100 S.Ct. at 1442-43 (Rehnquist, J., dissenting). [11]
445 U.S. at 692,
100 S.Ct. at 1438. [12] Subsection four was added to section
775.021 in 1976....
CopyCited 89 times | Published | Supreme Court of Florida
...se, to be served consecutively. Petitioner appealed, contending that the single transaction rule and the Double Jeopardy Clause of the Fifth Amendment prohibit these multiple convictions and sentences. The district court affirmed on the authority of section 775.021(4), Florida Statutes (1977). The court certified the following questions as being of great public importance: (1) Has the advent of Florida Statute 775.021(4) done away with the single transaction rule? (2) Is category 4 of Brown v....
...1973); Williams v. State,
337 So.2d 1038 (Fla. 1st DCA 1976), aff'd,
346 So.2d 67 (Fla. 1977); Swyers v. State,
334 So.2d 278 (Fla. 3d DCA 1976); Panzavecchia v. State,
311 So.2d 782 (Fla. 3d DCA 1975); Yost v. State,
243 So.2d 469 (Fla. 3d DCA 1971). Section
775.021(4), Florida Statutes (1977), provides: Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall b...
...her from allowing multiple prosecutions or from imposing multiple punishments for a single, legislatively defined offense." State v. Hegstrom,
401 So.2d 1343, 1345 (Fla. 1981) (footnote omitted). The explicit exclusion of lesser included offenses in section
775.021(4) makes clear that the legislature does not intend separate convictions and punishments for two or more statutorily defined offenses when in fact only one crime has been committed....
CopyCited 75 times | Published | Supreme Court of Florida | 2008 WL 2130235
register as a sexual predator, as defined in section
775.21, Florida Statutes (2007). New instruction 11
CopyCited 74 times | Published | Supreme Court of Florida | 2001 WL 1472614
...e punishments. See Albernaz v. United States,
450 U.S. 333, 344,
101 S.Ct. 1137,
67 L.Ed.2d 275 (1981); State v. Anderson,
695 So.2d 309, 311 (Fla.1997); M.P. v. State,
682 So.2d 79, 81 (Fla.1996); State v. Smith,
547 So.2d 613, 614 (Fla.1989). *700 Section
775.021(4)(a), Florida Statutes (1997), [6] recognizes that multiple convictions and punishments may be imposed for separate offenses committed in the course of one criminal transaction or episode. Under section
775.021(4)(a), "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." In Sirmons v. State,
634 So.2d 153, 153 (Fla.1994), we applied section
775.021 to determine whether the Legislature had authorized convictions for both robbery and grand theft of a motor vehicle, where the convictions stemmed from a single taking of an automobile at knifepoint. In Sirmons, the defendant was charged with two crimes for the taking of the same property. Id. Because the defendant had committed only one criminal act, we applied section
775.021(4)(b) and, after comparing the elements of the robbery and grand theft of a motor vehicle statutes, we concluded that the Legislature did not authorize multiple convictions for the single taking of one automobile....
...e and stole the automobile. Id. [5] Although the defendant in Henderson filed a petition for review in this Court, this Court has stayed Henderson pending our resolution of Hayes. See Henderson v. State , No. 01-385 (notice filed Feb. 20, 2001). [6] Section 775.021(4)(a)-(b), Florida Statutes (1997), provides: (4)(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 gu...
CopyCited 71 times | Published | Supreme Court of Florida | 41 Fla. L. Weekly Supp. 587, 2016 Fla. LEXIS 2598
impose consecutive mandatory minimum sentences. Section
775.021(4)(a) unequivocally provides: Whoever, in the
CopyCited 68 times | Published | Supreme Court of Florida
...Baker argued to the district court that the use of the firearm was a Brown v. State,
206 So.2d 377 (Fla. 1968), category four lesser included offense of the first-degree premeditated murder. The district court agreed with his contention and framed the question presented to it as whether or not the language of section
775.021(4), in its reference to "lesser included offenses" is limited to necessarily included offenses or also includes a lesser offense encompassed by the charging language of the greater offense for which a defendant has been convicted and sentenced.
425 So.2d at 39 (emphasis in original). Deciding that this Court had never answered that question, the district court held that a Brown category four lesser included offense was within the meaning of "lesser included offense" as used in subsection
775.021(4), Florida Statutes (1979)....
...
206 So.2d at 383 (emphasis in original). Former section 919.16, however, concerns "any offense which is necessarily included in the offense charged." [6] As Judge Cowart pointed out in his dissent to Baker, Brown's category four is likely derived from the single transaction rule. Subsection
775.021(4), however, abolished that rule....
...fense as an independent offense. In my view, the holding of the majority raises serious equal protection problems. Further, I find that the majority has clearly indulged in judicial legislation by interpreting the words "lesser included offenses" in section 775.021(4), Florida Statutes (1979), to mean " necessarily lesser included offenses." The majority opinion has never explained how this decision and our approved table of lesser included offenses must be reconciled and applied....
...ity opinion will raise significant questions as to how the present table of lesser included offenses should be used. This Court recently stated in Bell v. State,
437 So.2d 1057 (Fla. 1983), that "the explicit exclusion of lesser included offenses in section
775.021(4) makes clear that the legislature does not intend separate convictions and punishments for two or more statutorily defined offenses when in fact only one crime has been committed." Id....
...rida Constitution. In my view, a permissive lesser included offense which is established by the evidence is entitled to the same consideration as a necessarily lesser included offense. There is no reason or justification to hold otherwise. NOTES [1] § 775.021(4), Fla....
...rged. The court shall charge the jury in this regard. (Emphasis supplied.) [6] This Court adopted former § 919.16 as Fla.R. Crim.P. 3.510 in 1972. In re Florida Rules of Criminal Procedure,
272 So.2d 65, 118 (Fla. 1972). [7] The legislature amended §
775.021(4) in 1983 to adopt the Blockburger test....
CopyCited 68 times | Published | Supreme Court of Florida | 1988 WL 1507
...In so holding, we set forth basic rules of statutory construction for application in these circumstances. We held that *680 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....
...se and remand for further proceedings consistent with this opinion. It is so ordered. McDONALD, C.J., and EHRLICH, BARKETT, GRIMES and KOGAN, JJ., concur. SHAW, J., dissents with an opinion. SHAW, Justice, dissenting. In 1983 the legislature amended section 775.021(4), Florida Statutes (1981), to provide for separate convictions and punishment for separate offenses committed in the course of one criminal transaction or episode....
...We then examined the statutory elements of sections
812.13(1), (2)(a)-(b), and
790.07(2), Florida Statutes (1977), and determined that they defined separate criminal offenses. In doing so we concluded that a single act constitutes "one criminal transaction or episode" as used in section
775.021(4) and that multiple prosecutions and punishment for that single act were appropriate if two or more separate offenses were committed....
..."one criminal transaction or episode" and holding that they do not apply when a single criminal act results in two or more separate criminal offenses. In contrast, the majority reasons that two or more acts do constitute a criminal transaction under section 775.021(4) for which multiple prosecutions and punishments are permitted....
CopyCited 66 times | Published | Supreme Court of Florida | 1998 WL 873071
...st be strictly construed. Where words are susceptible of more than one meaning, they must be construed most favorably to the accused." State v. Camp,
596 So.2d 1055, 1056 (Fla.1992) (citation omitted). This principle is codified in Florida Statutes:
775.021 Rules of construction. (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. §
775.021, Fla....
CopyCited 65 times | Published | Supreme Court of Florida | 2007 WL 2790770
...With respect to criminal statutes, "[o]ne of the most fundamental principles of Florida law is that penal statutes must be strictly construed according to their letter." Perkins v. State,
576 So.2d 1310, 1312 (Fla.1991). In fact, the Legislature has specifically codified this principle of lenity in section
775.021(1), Florida Statutes (2002)....
...s must say with some precision exactly what is prohibited." Perkins,
576 So.2d at 1312. Thus, when criminal statutes are subject to competing, albeit reasonable, interpretations, they must be "strictly construed . . . most favorably to the accused." §
775.021(1), Fla....
...We conclude that the statute is subject to competing reasonable interpretations as to whether knowledge of the officer's status is an essential element of resisting an officer with violence. Thus, at the very least, the provision is ambiguous and must be strictly construed most favorably to the accused. See § 775.021(1), Fla....
CopyCited 64 times | Published | Supreme Court of Florida | 10 Fla. L. Weekly 441
...er v. United States,
284 U.S. 299,
52 S.Ct. 180,
76 L.Ed. 306 (1932), Hunter could be convicted of and punished for both crimes. Blockburger sets out a test of statutory construction which we used in Baker and which the legislature has adopted in subsection
775.021(4), Florida Statutes (1983)....
...We hold that the legislature intended that the minimum mandatory time to be served before becoming eligible for parole from a conviction of first-degree murder may be imposed either consecutively or concurrently, in the trial court's discretion, for each and every homicide. See § 775.021(4), Fla....
...unique to itself. We have had a long-standing problem with this issue in its various permutations: single transaction rule, double jeopardy, application of the Blockburger rule, lesser included offenses, and generally, legislative intent in adopting section 775.021(4), Florida Statutes (1977)....
...The only remaining anomaly prior to the decision here was State v. Hegstrom,
401 So.2d 1343 (Fla. 1981), where we held that there could be convictions for both a felony murder and the predicate felony, but no sentence imposed for the felony. We grounded our decision in Hegstrom on our reading of section
775.021(4), Florida Statutes (1979), which provided for separate sentences for each violation of two or more criminal statutes, "excluding lesser included offenses," committed during one criminal episode....
...ch overrides Hegstrom by deleting the phrase on which it stood, "excluding lesser included offenses" and by adopting the Blockburger rule as a rule of statutory construction, "without regard to the accusatory pleading or the proof adduced at trial." § 775.021(4), Fla....
...1137,
67 L.Ed.2d 275 (1981); and Whalen v. United States,
445 U.S. 684,
100 S.Ct. 1432,
63 L.Ed.2d 715 (1980), that the double jeopardy *170 clause imposes no meaningful restriction on the legislative power to define offenses and to prescribe punishment. It is also clear from section
775.021(4), Florida Statutes (1977-83), that the legislature intends that separate convictions and separate sentences be imposed for separate offenses....
...ity's opinion, in my view, jeopardizes our felony murder rule and all the convictions we have affirmed on the basis of felony murder. NOTES [*] We also recede from the second sentence of note 6 to State v. Gibson,
452 So.2d 553, 557 (Fla. 1984). [*] Section
775.021(4) now reads: (4) Whoever, in the course of one criminal transaction or episode, commits 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....
CopyCited 61 times | Published | Supreme Court of Florida | 1994 WL 26970
...In a similar vein, we recently held in Thompson that a defendant cannot be convicted of both fraudulent sale of a counterfeit controlled substance and felony petit theft where both charges arose from the same fraudulent sale. Thompson,
607 So.2d at 422. We agreed with the Fifth District Court of Appeal that section
775.021(4)(b)2., *154 Florida Statutes (1989), bars the dual convictions because both fraudulent sale and felony petit theft are simply aggravated forms of the same underlying offense distinguished only by degree factors....
...Exceptions to this rule of construction are: [B.] Offenses which require identical elements of proof. [C.] Offenses which are degrees of the same offense as provided by statute. [D.] Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense. Section 775.021(4), Fla....
...tions. The second tier of the analysis (Element [B.]) asks the courts to determine whether the offenses in question "require identical elements of proof." If so, then separate punishments are not permitted where the offenses arose from a single act. Section 775.021(4)(b)1., Fla....
...Const. The third tier of the analysis (Element [C.]), which is critical to the present case, provides that multiple punishments for the same act are not permitted if the offenses in question "are degrees of the same offense as provided by statute." Section 775.021(4)(b)2., Fla....
...other only by degree elements. As the fourth and final tier (Element [D.]), the legislature has determined that offenses cannot be separately punished if they are "lesser offenses the statutory elements of which are subsumed by the greater offense." Section 775.021(4)(b)3., Fla....
...ateness" test by definition are subsumed within the statutory elements of the greater offense, meaning that it is a necessarily lesser included offense. Id. at 925-26. It is obvious that the legislature codified Blockburger within the language of subsection
775.021(4)(a), Florida Statutes (1991). Smith,
547 So.2d at 615. That being the case, it would violate established rules of construction for us to hold that the exception contained in subsection
775.021(4)(b)3.... merely duplicates the Blockburger test itself, codified in subsection
775.021(4)(a)....
...arged in the information or indictment. Cave,
613 So.2d at 456-57 (Kogan, J., concurring) (footnotes & some citations omitted). For the foregoing reasons, I fully concur with the majority opinion. BARKETT, C.J., concurs. GRIMES, Justice, dissenting. Section
775.021(4), Florida Statutes (1989), reads as follows: (4)(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 g...
...f a motor vehicle. How can it be said that the Legislature did not intend these crimes to be separately punished? The effect of this decision *157 is to slide back into the Carawan [6] analysis which the Legislature rejected in its 1988 amendment to section 775.021....
CopyCited 61 times | Published | Supreme Court of Florida | 2001 WL 169675
...Anderson,
695 So.2d 309, 311 (Fla.1997) ("Legislative intent is the polestar that guides our analysis in double jeopardy issues...."). Absent a clear statement of legislative intent to authorize separate punishments for two crimes, courts employ the Blockburger [2] test, as *20 codified in section
775.021, Florida Statutes (1997), to determine whether separate offenses exist. See Gaber v. State,
684 So.2d 189, 192 (Fla.1996) ("[A]bsent an explicit statement of legislative intent to authorize separate punishments for two crimes, application of the Blockburger `same-elements' test pursuant to section
775.021(4) ... is the sole method of determining whether multiple punishments are double-jeopardy violations.") (footnote omitted). Section
775.021 provides: (4)(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 f...
...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. § 775.021, Fla....
...The court further noted, "Because both offenses seek to punish the same underlying act, appellant's dual convictions cannot stand." Id. Thus, our construction of the second exception indicates that a two-step inquiry is required: whether the crimes constitute separate offenses under Blockburger, as codified in section 775.021(4)(a), and whether the crimes are "degree variants" or aggravated forms of the same core offense. ANALYSIS A traditional Blockburger analysis, which is required by section 775.021, indicates that the crimes at issue are separate offenses for double jeopardy purposes....
...Later cases applying this exception, Goodwin, Anderson, and Khan, simply hold that different degrees of the same basic crimes were being punished. Extended to its logical extreme, a broad reading of Sirmons and the second statutory exception would render section 775.021 a nullity....
...Indeed, the plethora of criminal offenses is undoubtedly derived from a limited number of "core" crimes. In no uncertain terms, the Legislature specifically expressed its intent that criminal defendants should be convicted and sentenced for every crime committed during the course of one criminal episode. See § 775.021(4)(b)....
...iolation, are consistent with the limited statutory exception. However, extension of this exception to multiple convictions for attempted first-degree murder, aggravated battery, and felony causing bodily injury would contravene the plain meaning of section 775.021....
...felony are sufficiently distinct that they warrant separate punishment. As Justice Shaw noted in his Carawan dissent, "[W]here appellant unquestionably committed all three offenses, all three caused separate evils, and all three meet the criteria of section 775.021(4) for separate convictions and punishments, the legislative directive to punish cumulatively cannot be said to be unreasonable." Id....
...In Carawan, we held that dual convictions for aggravated battery and attempted manslaughter arising out of the same act constituted double jeopardy. See Carawan,
515 So.2d at 170-71. In so doing, we employed several rules of construction, including the rule of lenity. See id. Subsequently, the Legislature amended section
775.021, explicitly enunciating its intent that crimes be separately punished without regard to the rule of lenity....
...While we noted in Boivin that the statutory elements of the two crimes were different, we further said that we could discern no legislative intent to separately punish defendants for both crimes. See id. However, we now know the legislative intent. The subsequent amendment to section 775.021 explicitly states, "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... to determine legislative intent." § 775.021(4)(b), Fla....
...In a similar argument, Gordon highlights the principle that convictions for both premeditated murder and felony murder are impermissible when only one death occurred. See Goss v. State,
398 So.2d 998, 999 (Fla. 5th DCA 1981). We have held repeatedly that section
775.021 did not abrogate our previous pronouncements concerning punishments for singular homicides....
...However, I disagree that multiple convictions for all three crimes are permissible. In my view, dual convictions for attempted first-degree *26 murder and felony causing bodily injury (Counts I and II) constitute double jeopardy. As the State correctly observes, despite the statement of legislative intent incorporated in section 775.021, as amended in 1988, this Court has nonetheless held that multiple convictions for singular homicides are impermissible....
...[3] The crimes in the instant case do not satisfy the other statutory exceptions because they are neither identical offenses nor do they constitute lesser-included offenses. See State v. McCloud,
577 So.2d 939, 941 (Fla.1991) (holding that "an offense is a lesser-included offense for purposes of section
775.021(4) only if the greater offense necessarily includes the lesser offense"); see also Aiken v....
CopyCited 61 times | Published | Supreme Court of Florida | 1992 WL 27892
...EN THE LEGISLATIVE INTENT UNDERLYING CHAPTER 88-131, LAWS OF FLORIDA, AND THE COURT'S DECISIONS IN STATE V. ENMUND,
476 So.2d 165 (FLA. 1985), AND STATE V. BOATWRIGHT,
559 So.2d 210 (FLA. 1990), DOES A TRIAL JUDGE HAVE THE DISCRETION, UNDER SECTIONS
775.021(4) AND
775.084, FLORIDA STATUTES (SUPP....
...ch other. The district court of appeal affirmed the sentences and certified the foregoing question. In an effort to highlight the disputed issue, we have chosen to reword the question as follows: DOES A TRIAL JUDGE HAVE THE DISCRETION UNDER SECTIONS
775.021(4) AND
775.084, FLORIDA STATUTES (1988), TO IMPOSE CONSECUTIVE FIFTEEN-YEAR MINIMUM MANDATORY SENTENCES FOR FIRST-DEGREE FELONIES COMMITTED BY AN HABITUAL VIOLENT FELONY OFFENDER ARISING FROM A SINGLE CRIMINAL EPISODE? Daniels' argument against consecutive minimum mandatory sentences relies primarily upon Palmer v....
...in possession of a gun, section
775.084 constitutes an enhancement of the felony prescribed by statute for the underlying offense. We cannot accept the State's contention that consecutive minimum mandatories are required because of the provisions of section
775.021, Florida Statutes (Supp. 1988). In the first place, our opinion in Palmer rejected the contention that section
775.021(4), Florida Statutes (1981), which was worded substantially the same as section
775.021(4)(a), Florida Statutes (Supp. 1988), permitted the stacking of consecutive minimum mandatory sentences. The subsequent addition of subsection (b) to section
775.021(4) [3] was designed to overrule this Court's decision in Carawan v....
CopyCited 60 times | Published | Supreme Court of Florida | 1991 WL 25369
...2d DCA 1990), in which the district court certified the following as being a question of great public importance: [1] When a double jeopardy violation is alleged based on the crimes of sale and possession (or possession with intent to sell) of the same quantum of contraband and the crimes occurred after the effective date of section 775.021, Florida Statutes *940 (Supp....
...1989), this Court held that under a 1988 statutory amendment, the legislature intended that sale or delivery of a controlled substance and possession of that substance constitute separate offenses subject to separate convictions and separate punishments. Ch. 88-131, § 7, Laws of Fla. (amending § 775.021(4), Fla....
...1989). However, the offenses at issue in Smith occurred prior to the July 1, 1988 effective date of chapter 88-131, and we declined to apply chapter 88-131 retroactively, finding the case was controlled by Carawan v. State,
515 So.2d at 161 (construing §
775.021(4), Fla....
...court properly dismissed the possession charge. With regard to McCloud's August 1, 1988 offenses, we address for the first time whether McCloud can be dually convicted of possession and sale of the same quantum of cocaine under the amended statute. Section 775.021(4)(b) of the Florida Statutes (Supp....
...1988) currently permits dual convictions and sentences for offenses based on one act, subject to certain enumerated exceptions. McCloud asserts that possession and sale of the same quantum of cocaine is an exception under the category of "subsumed" elements in subsection 775.021(4)(b)(3)....
...[3] In other words, McCloud argues that he cannot be convicted of possession of cocaine and sale of the same cocaine because possession is a lesser-included offense of sale. The state argues that possession is not a lesser-included offense of sale because under section 775.021(4) (codifying the test established in Blockburger v....
...reversed the possession conviction but affirmed the sale conviction. Cf. State v. Daophin,
533 So.2d 761 *941 (Fla. 1988) (holding that possession is not a lesser-included offense of delivery). An offense is a lesser-included offense for purposes of section
775.021(4) only if the greater offense necessarily includes the lesser offense....
...ur without possession, possession is not an essential element of sale and is therefore not a lesser-included offense. This case, of course, involves a situation where the defendant actually did possess and sell the same quantum of the drug. However, section 775.021(4)(a) specifically states that "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. " (Emphasis added.) Thus, section 775.021(4)(a) precludes the court from examining the evidence to determine whether the defendant possessed and sold the same quantum of cocaine such that possession is a lesser-included offense of sale in any one case....
...I dissent for all the reasons expressed in State v. Smith,
547 So.2d 613, 619-22 (Fla. 1989) (Barkett, J., concurring in part, dissenting in part). In addition, I believe that possession is an essential element of sale and therefore is a necessarily included lesser offense under section
775.021(4)(b)(3), Florida Statutes (Supp....
...luded within (subsumed by) the greater offense of "delivery," and as "delivery" is a separate offense, all of the statutory elements of which are included within ("subsumed by") the greater offense of "selling," it would appear from the amendment of section 775.021(4) by Ch....
...State,
561 So.2d 314, 315 (Fla. 2d DCA 1990), approved in part, quashed in part,
577 So.2d 941 (Fla. 1991), in which the text of the certified question appears. [2] We have jurisdiction pursuant to article V. section 3(b)(4) of the Florida Constitution. [3] Section
775.021(4) provides in pertinent part: (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....
CopyCited 59 times | Published | Supreme Court of Florida | 2002 WL 1448825
classify J.M. as a sexual predator, pursuant to section
775.21, Florida Statutes (2000), also known as "The
CopyCited 58 times | Published | Supreme Court of Florida | 2006 WL 3741053
...A defendant is placed in double jeopardy where based upon the same conduct the defendant is convicted of two offenses, each of which does not require proof of a different element. Blockburger v. United States,
284 U.S. 299, 304,
52 S.Ct. 180,
76 L.Ed. 306 (1932); see §
775.021(4), Fla....
...under the Blockburger test, with three exceptions: offenses requiring identical elements of proof, offenses which are degrees of the same offense as provided by statute, and lesser offenses which have elements wholly subsumed by the greater offense. § 775.021(4)(b)....
...Barton,
523 So.2d 152, 153 (Fla.1988) (stating that when "one of two convictions must fall, we hold that the conviction of the lesser crime should be set aside"). In distinguishing lesser offenses from greater offenses when faced with a double jeopardy violation, this Court has stated that based upon section
775.021(4), lesser offenses "are those in which the elements of the lesser offense are always subsumed within the greater, without regard to the charging document or evidence at trial." State v. Florida,
894 So.2d at 947 (citing State v. McCloud,
577 So.2d 939, 941 (Fla.1991) (holding that an offense is a lesser offense "for purposes of section
775.021(4) only if the greater offense . . . includes the lesser offense")). Further, section
775.021(4)(b)(3) itself states that lesser offenses are offenses "the statutory elements of which are subsumed by the greater offense." Therefore, the statutory elements of the lesser offense must be subsumed by the statutory elements of the...
CopyCited 54 times | Published | Florida 2nd District Court of Appeal | 2006 WL 1879002
...However, because Ross directly conflicts with the established rule, we write to recede from Ross. In Ross, the defendant argued in a rule 3.800(a) motion that his sentences were illegal because his guideline scoresheet included both his grand theft and fraudulent use of a credit card convictions in violation *1226 of section 775.021(4)(b)(2), Florida Statutes (1993)....
...NOTES [1] "The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction. . . . Exceptions to this rule of construction are ... (2) Offenses which are degrees of the same offense as provided by statute." § 775.021(4)(b)(2), Fla....
CopyCited 53 times | Published | Supreme Court of Florida | 1996 WL 580313
...The Blockburger test, which is also called the "same-elements" test, inquires whether each offense contains an element not contained in the other; if not, they are the same offense and double jeopardy bars subsequent punishment or prosecution. The Blockburger test has been codified in Florida at section 775.021(4), Florida Statutes (1995)....
...Stearns,
645 So.2d 417, 418 (Fla.1994). For purposes of double jeopardy analysis, "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." §
775.021(4)(a), Fla. Stat. (1991) (emphasis added). Thus, section
775.021(4)(a) prohibited us from looking at the charging document to determine whether the "felony" element of "carrying a concealed weapon while committing a felony" was armed burglary or grand theft....
...See §
810.02(2), Fla. Stat. (1991). Thus, while the "carrying a concealed weapon while committing a felony" offense requires proof of the additional element of a "concealed" weapon, armed burglary requires proof of no element that the weapons offense does not. [6] Section
775.021(4), Florida Statutes (1995), provides: (4)(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, sh...
CopyCited 51 times | Published | Supreme Court of Florida | 2006 WL 1699524
...Anderson,
695 So.2d 309, 311 (Fla.1997) ("Legislative intent is the polestar that guides our analysis in double jeopardy issues. . . ."). Absent a clear statement of legislative intent to authorize separate punishments for two crimes, courts employ the Blockburger [2] test, as codified in section
775.021, Florida Statutes (1997), to determine whether separate offenses exist....
...2001) (footnote omitted); see also Gaber v. State,
684 So.2d 189, 192 (Fla.1996) ("[A]bsent an explicit statement of legislative intent to authorize separate punishments for two crimes, application of the Blockburger `same-elements' test pursuant to section
775.021(4) ....
...is the sole method of determining whether multiple punishments are double-jeopardy violations.") (footnote omitted). In reviewing section
800.04, we do not find a clear statement of legislative intent, and thus we must employ the Blockburger test as codified in section
775.021, Florida Statutes (2005), to determine whether separate offenses exist. Section
775.021(4) provides: (4)(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 separatel...
...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. § 775.021(4), Fla. Stat. (2005). The first portion of this test, section 775.021(4)(a), sets forth the Blockburger "same elements test," which prohibits courts from imposing multiple convictions for an act or acts which occur in one criminal episode if each offense does not contain at least one element distinct from the other offenses. Section 775.021(4)(b) sets forth the exceptions to the Blockburger "same elements" test, providing three additional situations where dual convictions are barred....
...ng covering it in violation of section
800.04(5)(a); and (2) count Vlewd and lascivious conduct by kissing the victim's neck in violation of section
800.04(6)(a). In order for multiple convictions to be permitted under these two counts pursuant to section
775.021(4)(a), i.e., the "same elements" test, each offense is considered 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. " §
775.021(4)(a), Fla....
...red at all. Accordingly, while Paul engaged in only one act that violated both subsections at the same time, he can still be convicted of both violations unless the offenses come within one of the exceptions in subsection (4)(b). As addressed above, section 775.021(4)(b) prohibits multiple convictions and punishments for: "(1) [o]ffenses which require identical elements of proof; (2) [o]ffenses which are degrees of the same offense as provided by statute; [and] (3) [o]ffenses which are lesser offenses the statutory elements of which are subsumed by the greater offense." § 775.021(4)(b), Fla. Stat. (2005). Section 775.021(4)(b)(1), which concerns offenses that "require identical elements of proof," does not apply here....
...Violating section
800.04(6) requires *1175 a touching, and violating section
800.04(7) requires an exhibition of the offender's genitals. Hence, although both crimes occurred based on the same act, the offenses themselves do not require identical elements of proof. The next exception is subsection
775.021(4)(b)(2), which prohibits multiple convictions and punishments for "[o]ffenses which are degrees of the same offense as provided by statute." In Florida, this Court's most recent case addressing this exception, the Court looked to whether both crimes intend to punish the same primary evil....
...wd or lascivious exhibition; and the other prohibits lewd or lascivious touching. Thus, the two crimes are not merely degree variants of the same core offense and do not come within the exception to the requirement of separate convictions set out in section 775.021(4)(b)(2). The last exception to consider is in subsection 775.021(4)(b)(3), which applies to "[o]ffenses which are lesser offenses the statutory elements of which are subsumed by the greater offense." § 775.021(4)(b)(3), Fla....
...d not be convicted of both a violation of section
800.04(6)(a)(1), Florida Statutes, and section
800.04(5)(a), Florida Statutes, for the acts which occurred in the living room. However, we quash the district court's determination that application of section
775.021 prohibits convictions of both section
800.04(6)(a) (lewd and lascivious conduct) and section
800.04(7) (lewd and lascivious exhibition) for the acts that occurred in the bedroom....
...1987), but abrogated the following year by statutory amendment. See ch. 88-131, § 7, Laws of Fla. The statute does not mention any such test. It simply prohibits separate punishments for crimes that "are degrees of the same offense as provided by statute. " § 775.021(4)(b)(2), Fla....
...673,
74 L.Ed.2d 535 (1983), but merely a "rule of statutory construction" used to ascertain legislative intent when it has not been clearly manifested. Albernaz,
450 U.S. at 340,
101 S.Ct. 1137. *1177 In Florida, the Legislature has codified this test as a rule of statutory construction, see §
775.021(4), Fla....
...The statute explains that "[t]he 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. . . to determine legislative intent." Id. § 775.021(4)(b). Consistent with this objective, a defendant "shall be sentenced separately" for multiple offenses arising from one criminal episode as long as "each offense requires proof of an element that the other does not." Id. § 775.021(4)(a)....
...The Legislature does not intend to allow separate sentencing for related offenses that (1) "require identical elements of proof," (2) "are degrees of the same offense as provided by statute," or (3) "are lesser offenses the statutory elements of which are subsumed by the greater offense." Id. § 775.021(4)(b)....
...Continuing a strange but steady tradition in our caselaw, the majority interprets the degree-variant exception to mean that separate punishments cannot be imposed where "both crimes intend to punish the same primary evil." Majority op. at 1175. I consider this interpretation strange because, in amending section
775.021 in 1988, the Legislature clearly intended to abrogate our 1987 decision in Carawan,
515 So.2d at 161, which applied that test....
...lature did not intend to impose multiple punishments." Id. at 168. We have acknowledged more than once that the Legislature subsequently rejected this holding. See Boler v. State,
678 So.2d 319, 322 (Fla.1996) (explaining that "the 1988 amendment of section
775.021(4) was intended to override our previous decision in Carawan "); State v....
...in Carawan "). Nevertheless, rather than simply applying the plain language of the statute, we continue to apply the "same evil" test. The statute itself creates an exception for crimes that "are degrees of the same offense as provided by statute. " § 775.021(4)(b)(2), Fla....
...[5] It is in such cases, and only such cases, that the exception was intended to apply. That is why in Gordon v. State,
780 So.2d 17 (Fla.2001), after expressing concern that "[e]xtended to its logical extreme, a broad reading of Sirmons and the [degree-variant] exception would render section
775.021 a nullity," id....
...In Sirmons, we classified two crimes as degree variants because they were "based on the same core offense."
634 So.2d at 154. Three dissenters, in an opinion by Justice Grimes, warned that "[t]he effect of this decision is to slide back into the Carawan analysis which the Legislature rejected in its 1988 amendment to section
775.021." Id....
...ysis." State v. Florida,
894 So.2d 941, 950 (Fla.2005) (Pariente, C.J., dissenting). In his specially concurring opinion in this case, Justice Cantero agrees with the majority's destination, but questions its route. He would limit the application of section
775.021(4)(b)(2), Florida Statutes (2005), which precludes separate convictions of "[o]ffenses which *1180 are degrees of the same offense as provided by statute" for a defendant's act or acts in a single episode, to statutory offenses in which the Legislature has made a degree relationship explicit....
...eption. However, it yields the same illogical resultsmultiple convictions for what is at heart a single crime. Therefore, I cannot sign on for the voyage. Instead, we should return to the "core offense" analysis employed by the Court in construing section 775.021(4)(b)(2) in Sirmons v....
...In Florida, the Court affirmed convictions of aggravated battery and attempted second-degree murder for the act of firing a single gunshot that struck and injured the victim. Applying the "primary evil" test from Gordon v. State,
780 So.2d 17 (Fla.2001), to section
775.021(4)(b)(2), the majority concluded that the crime of attempted murder punishes the potential to cause death, whereas the crime of aggravated battery punishes an actual, nonconsensual touching or striking. Florida,
894 So.2d at 949. Justice Cantero concurred in the majority opinion in Florida, but now questions its "primary evil" test under section
775.021(4)(b)(2)....
...In my dissenting opinion in Florida, I acknowledged that my views had changed since I concurred in approving multiple convictions under the "primary evil" analysis in Gordon.
894 So.2d at 951 (Pariente, C.J., dissenting). I noted that Gordon departed from our precedent applying section
775.021(4)(b)(2), which provides an exception for degrees of the same offense as provided by statute to the Legislature's intent to authorize convictions and sentences for each offense committed in a criminal episode....
...ed in Justice Kogan's concurring opinion in Sirmons. Florida,
894 So.2d at 950-51. I determined that where the two convictions are for offenses that are merely aggravated forms of the same underlying offense, only a single conviction is proper under section
775.021(4)(b)(2)....
...making up this crime is essentially the same. Paul's convictions of lewd or lascivious molestation, conduct (two counts), and exhibition are thus merely degree variants of this core crime. Relying on the Legislature's limitation of the exception in section 775.021(4)(b)(2) to "[o]ffenses which are degrees of the same offense as provided by statute " (emphasis supplied), Justice Cantero would confine the analysis to statutory offenses both those in which the degree relationship is obvious, suc...
...___,
126 S.Ct. 2294,
164 L.Ed.2d 820 (2006). Courts are obligated to apply statutory language that is clear and unambiguous according to its plain meaning. Montgomery v. State,
897 So.2d 1282, 1285 (Fla. 2005). The divergent judicial interpretations given section
775.021(4)(b)(2) by the Court in cases such as Sirmons and Gordon, and now by Justice Cantero in this case, reflect an innate ambiguity in the statutory language. I cannot resolve this ambiguity in section
775.021(4)(b)(2) in favor of a construction that would authorize convictions for either murder or attempted murder and an aggravated battery inherent in the murder or attempted murder....
...Nor can I construe this provision to permit the equally illogical result of separate convictions *1182 for a progression of lewd or lascivious acts in a single episode that violate separate subsections of section
800.04. Therefore, I would return to the Sirmons line of precedent and an interpretation of section
775.021(4)(b)(2) that exempts from the presumption of multiple convictions those statutory offenses that are degree variants of a common core offense....
...I agree with the majority that Paul's conduct in the living room, in which he touched the victim's genital area outside his clothing and kissed his neck, constituted one offense of "lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age" under the "separate elements" test in section
775.021(4)(a), Florida Statutes (2005). I also agree that Paul's acts in the bedroom of exposing his penis and rubbing his penis on the victim's stomach violated sections
800.04(6)(a) and
800.04(7), which have different elements, necessitating analysis under the three exceptions in section
775.021(4)(b) to the legislative preference for separate convictions....
...I dissent in part because the majority, employing the flawed "primary evil" analysis of Florida and Gordon rather than the "core offense" analysis of the Sirmons line of cases, does not recognize that these violations constitute only one additional offense under section 775.021(4)(b)(2)....
CopyCited 48 times | Published | Supreme Court of Florida | 2001 WL 359697
...It did not and this court should not. Rife,
733 So.2d at 543 n. 2. To the extent, however, that there is any ambiguity as to legislative intent created by the confluence of these statutes, the default principle in construing criminal statutes is codified in section
775.021(1), Florida Statutes (1997)....
...See Hayes,
750 So.2d at 3. "The rules of statutory construction require courts to strictly construe criminal statutes, and that `when the language is susceptible to differing constructions, [the statute] shall be construed most favorably to the accused.'" Id. (quoting section
775.021(1)); see also McLaughlin,
721 So.2d at 1172....
CopyCited 46 times | Published | Florida 2nd District Court of Appeal | 1998 WL 210760
775.23(2) and/or as defined in Florida Statute §
775.21 as amended July 1, 1996." Collie raises five issues
CopyCited 45 times | Published | Supreme Court of Florida | 11 Fla. L. Weekly 328
...In Palmer, we found error in the trial court's imposition of consecutive mandatory minimums for each of thirteen robbery counts, totalling thirty-nine years, when the robberies had taken place in the same manner at one place and time. Even in Palmer, however, we noted that the language of section 775.021(4), Florida Statutes (1981), granted the trial court discretion to impose separate sentences, either concurrently or consecutively, for each separate criminal offense arising out of a single criminal episode. See § 775.021(4), Fla....
CopyCited 43 times | Published | Supreme Court of Florida | 1998 WL 849542
...At the very least, under the analysis in the cases set out above, the language and purpose of the statute is ambiguous and susceptible to different interpretations. And, of course, both this Court and the legislature have mandated that criminal statutes be strictly construed most favorably to the accused. See § 775.021(1), Fla....
...Jones,
280 So.2d 431 (Fla.1973) (district courts of appeal may state their reasons for advocating that the supreme court recede from established precedent, but are bound to follow such precedent until overruled). In dicta, the Wallace court suggests that the legislature's adoption in 1988 of section
775.021(4)(b), Florida Statutes, had effectively overruled the holdings in Grappin and Watts.
689 So.2d at 1162-63. The state here relies on that dicta to support its argument that the Grappin/Watts "a/any test" is no longer good law. .... It seems to us that section
775.021(4)(b) was intended merely to make clear that multiple punishments are to be imposed for separate offenses regardless of whether they all arose out of a single act....
...ds the proper unit of prosecution to be when it uses ambiguous language, i.e., whether the language used is intended to make multiple acts occurring at the same time one offense or separate offenses. Accordingly, we do not agree that the adoption of section 775.021(4)(b) has any bearing on the continued vitality of the Grappin/Watts "a/any test" as a means by which to arrive at an answer to such questions....
CopyCited 42 times | Published | Court of Appeals for the Eleventh Circuit | 1987 U.S. App. LEXIS 7974
...The question facing the court therefore is what punishment the Florida legislature authorized for a single criminal transaction involving both felony murder and the underlying felony of robbery. 8 The Florida legislature has explicitly indicated its intent on this issue in § 775.021(4), Fla.Stat....
...on conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed for each criminal offense, excluding lesser included offenses, committed during said criminal episode ... § 775.021(4), Fla.Stat....
...Although our opinions have not been entirely consistent on whether double jeopardy forbids double convictions as well as double sentencing, the absence of double jeopardy and Blockburger constraints in this situation returns our attention to an analysis of legislative intent. Section 775.021(4), of course, expressly bars only multiple sentences....
...at 1061. Bell was not the last word on this issue, however. In State v. Baker,
456 So.2d 419, 422-23 (Fla.1984) the Florida Supreme Court refined its holding in Bell , limiting it to "necessarily lesser included offenses.” "[T]he statutory language [of §
775.021(4) ] refers only to necessarily lesser included offenses,” and does not include permissibly lesser included offenses, offenses that may or may not be included in the offense charged depending upon the accusatory pleading and the evidence presented at trial....
CopyCited 39 times | Published | Supreme Court of Florida
...Pinder (and, therefore, the double jeopardy clause) as authority for its holding, the district court in its opinion used certain language that was reminiscent of the judicially created "single transaction rule." The "single transaction rule," however, has been legislatively eliminated from the law of Florida. § 775.021(4), Fla....
...ing a felony is not a lesser included offense of robbery while armed but, rather, was intended by the legislature as a separate offense to be separately prosecuted and punished even where based on a single act or closely connected group of acts. [5] § 775.021(4), Fla....
...missible. See, e.g., Albernaz v. United States,
450 U.S. 333,
101 S.Ct. 1137,
67 L.Ed.2d 275 (1981); Harris v. United States,
359 U.S. 19,
79 S.Ct. 560,
3 L.Ed.2d 597 (1959); Gore v. United States,
357 U.S. 386,
78 S.Ct. 1280,
2 L.Ed.2d 1405 (1958). Section
775.021(4), set out in footnote 3 above, mandates separate prosecutions and punishments whenever an act or group or series of acts violates more than one statutory provision....
...g, in a prosecution of an offense based on a single act or factual event, prosecution and punishment for another statutory offense constituting a less serious verdict alternative. See Bell v. State,
437 So.2d 1057 (Fla. 1983). Thus, the exception in section
775.021(4) expressed the commonly understood notion that, for example, one who is alleged to have committed battery with a weapon will not be punished, tried, or charged cumulatively for both aggravated battery and simple battery. On such a charge of aggravated battery, the jury has the option of finding that no weapon was used in the battery and *558 accordingly returning a verdict of simple battery. See Brown v. State,
206 So.2d 377 (Fla. 1968). Thus the exception in section
775.021(4) referred to a well-understood legal concept and was not intended to preclude separate prosecution and punishment of separate statutory crimes arising in the same course of events or from a single act....
...The distinguishing factor may have to do with the vexatious and oppressive nature of successive prosecutions of separate statutory offenses having the same constituent statutory elements and based on the same act or factual event. See generally North Carolina v. Pearce,
395 U.S. 711,
89 S.Ct. 2072,
23 L.Ed.2d 656 (1969). [3] Section
775.021(4), provides as follows: (4) Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentence...
...This distinction between the two offenses defined in section
790.07(2) might make a difference under the Blockburger rule. State v. Monroe was disapproved to the extent of inconsistency in Bell v. State,
437 So.2d 1057 (Fla. 1983). [6] The recent amendment of section
775.021(4), however, has specifically adopted the Blockburger rule as the test for determining whether statutory offenses with common constituent elements are separate offenses or "the same offense." Ch....
...1137,
67 L.Ed.2d 275 (1981), and Whalen v. United States,
445 U.S. 684,
100 S.Ct. 1432,
63 L.Ed.2d 715 (1980), as holding that the question was purely one of legislative intent. However, we went on to find that the exception of "lesser included offenses" in section
775.021(4) operated to prevent a separate sentence for the underlying felony because it was found to be a necessarily lesser included offense of the crime of felony murder....
...State,
437 So.2d 1057 (Fla. 1983), however, we held that a "lesser included offense" is a verdict alternative and not a separate offense for which a separate prosecution may be undertaken and a separate conviction imposed. We thus remedied the problem of section
775.021(4) and the double jeopardy clause being "at cross-purposes." Bell v....
CopyCited 39 times | Published | Supreme Court of Florida
...State,
780 So.2d 17, 19-20 (Fla.2001). Under Blockburger, dual convictions are authorized only if each offense contains an element that the other does not. See id. at 20; Gaber v. State,
684 So.2d 189, 192 (Fla.1996). The Blockburger test is codified in section
775.021(4)(a), Florida Statutes (2004). Section
775.021(4) provides in full: (4)(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 s...
...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. Under section 775.021(4)(a) and Blockburger, multiple convictions for an act or acts in a criminal episode are unauthorized if each offense does not contain at least one element distinct from the other offenses. Under section 775.021(4)(b), multiple convictions are unauthorized if the offenses fall within one of the three statutory exceptions to the requirement of separate convictions and sentences. [2] To apply section 775.021(4), we must determine the elements of the two offenses....
...he defendant's act of shooting the victim during a robbery. See
780 So.2d at 18, 25. We concluded that each offense contained an element not contained in the others, and that none of the three exceptions to the presumption of multiple convictions in section
775.021(4)(b) applied....
...he intentional infliction of bodily harm for aggravated battery, making the elements congruent. The State responds that although the act may be the same, the elements of the crimes differ. The State is correct. Under the Blockburger test codified in section 775.021(4)(a), attempted second-degree murder and aggravated battery with a deadly weapon each has an element distinct from the other....
...to constitute aggravated battery. See Schirmer,
837 So.2d at 589. Thus, even apart from the additional elements of the law enforcement officer victim in count VI and the use of a firearm in count VII, the offenses are separate under Blockburger and section
775.021(4)(a)....
...Victim contact is not a required element of *947 proof for attempted second-degree murder; the requirement of attempted second-degree murder that the defendant's act could have caused death is not a required element of aggravated battery. The respondent does not argue that dual convictions are unauthorized under section 775.021(4)(b)(1). Leaving aside section 775.021(4)(b)(2) for the moment, the next exception we consider is in subsection (4)(b)(3), which applies to "[o]ffenses which are lesser offenses the statutory elements of which are subsumed by the greater offense." The respondent asserts th...
...ts of the lesser offense are always subsumed within the greater, without regard to the charging document or evidence at trial. See State v. McCloud,
577 So.2d 939, 941 (Fla.1991) (holding that "an offense is a lesser-included offense for purposes of section
775.021(4) only if the greater offense necessarily includes the lesser offense")....
...sistent with the stabbing being committed as part of the attempted second degree murder." 725 So.2d at 421. The Fifth District in Schirmer expressly declined to follow Gresham, concluding, in accord with this Court's precedent, that the exception in section
775.021(4)(b)(3) applies only to Category 1 or necessarily lesser included offenses, in which the pleadings and evidence are irrelevant. See Schirmer,
837 So.2d at 588-89. [3] The Fifth District's conclusion that section
775.021(4)(b)(3) does not preclude dual convictions of aggravated battery and attempted second-degree murder is correct. The final potential statutory bar to dual convictions that must be addressed is section
775.021(4)(b)(2), which is not discussed by either the Fourth District in this case or the Fifth District in Schirmer....
...The relationship between aggravated battery and attempted homicide is different than that between aggravated battery and actual, not attempted, homicide. Id. at 173 (Shaw, J., dissenting), quoted in Gordon,
780 So.2d at 23. Gordon controls our application of section
775.021(4)(b)(2) to the convictions of both aggravated battery on a LEO in count VI and attempted second-degree murder with a firearm in count VII....
...The evil of battery omits lethal potential, and the evil of attempted second-degree murder omits victim contact. Thus, the two crimes are not merely degree variants of the same core offense, and therefore do not come within the exception to the requirement of separate convictions set out in section 775.021(4)(b)(2)....
...Accordingly, the offenses of aggravated battery on a law enforcement officer and attempted second-degree murder with a firearm do not violate the constitutional ban on double jeopardy and are not exempt from the requirement of separate convictions under section 775.021(4), Florida Statutes....
...In Gordon, this Court approved a district court decision affirming convictions of attempted first-degree murder, aggravated battery causing great bodily harm, and felony causing bodily injury for the defendant's act of shooting the victim during a robbery attempt. See
780 So.2d at 18, 25. Applying the exception in section
775.021(4)(b)(2), Florida Statutes (2004), to the statement of legislative preference that a defendant be convicted for each crime committed in a criminal episode, we adopted language from Justice Shaw's dissenting opinion in Carawan v....
...e is that it may inflict death." See id., quoted in Gordon,
780 So.2d at 23. This Court therefore concluded in Gordon that the crimes were "not `degree variants' of the same underlying offense" for which dual convictions are unauthorized pursuant to section
775.021(4)(b)(2).
780 So.2d at 25. Gordon's focus on a "primary evil" in applying section
775.021(4)(b)(2) was a departure from our precedent construing and applying the provision. In Sirmons v. State,
634 So.2d 153, 154 (Fla.1994), this Court had held that convictions of robbery with a weapon and grand theft of an automobile were impermissible under section
775.021(4)(b)(2) because the offenses were "merely degree variants of the core offense of theft." We relied on previous decisions in which we had found double jeopardy violations for dual convictions of other crimes which were also aggravated forms of theft....
...ssion of contraband, and homicide are the type of core offenses upon which other criminal charges are based. The Court in Gordon then stated: Extended to its logical extreme, a broad reading of Sirmons and the second statutory exception would render section 775.021 a nullity....
...Indeed, the plethora *951 of criminal offenses is undoubtedly derived from a limited number of "core" crimes. In no uncertain terms, the Legislature specifically expressed its intent that criminal defendants should be convicted and sentenced for every crime committed during the course of one criminal episode. See § 775.021(4)(b)....
...and theft, where the nature of the crime is often defined by degree of the violation, are consistent with the limited statutory exception. However, extension of this exception to multiple convictions for attempted first-degree murder, aggravated battery, and felony causing bodily injury would contravene the plain meaning of section
775.021.
780 So.2d at 23. Although I concurred in the per curiam opinion in Gordon, I now conclude that section
775.021(4)(b)(2) should not be applied so restrictively. Nothing in the language of the provision supports limiting this exception to any specific list of core offenses. Indeed, other courts have extended section
775.021(4)(b)(2) beyond the four core offenses identified by Justice Kogan....
...as as its core violation of the duty not to lie), review denied,
848 So.2d 1154 (Fla.2003). However, where the two convictions are for offenses that are merely aggravated forms of the same underlying offense, only a single conviction is proper under section
775.021(4)(b)(2)....
...2d at 154, was improper. [4] The "primary evil" analysis applied in Gordon in lieu of determining whether the crimes had the same core offense reinvigorated a *952 concept that should have been put to rest with the 1988 enactment of the amendment to section 775.021(4), the Legislature's response to Carawan....
...ation in that case that the statutory offenses of attempted manslaughter and aggravated battery "addressed essentially the same evil."
515 So.2d at 170. Justice Shaw was obviously not referring to the 1988 legislation abrogating Carawan contained in section
775.021(4)(b)(2), Florida Statutes. See generally State v. Smith,
547 So.2d 613, 617 (Fla.1989) (acknowledging that Carawan was overridden by in chapter 88-131, section 7, Laws of Florida). The 1988 amendment to section
775.021(4) and its abrogation of Carawan shifted the focus away from whether two offenses address the same evil....
...child from the state contrary to a court order were invalid because they "punish the same basic crime"). Therefore, I conclude that the Court's double jeopardy analysis in Gordon is contrary to Sirmons and Anderson, and therefore a misapplication of section 775.021(4)(b)(2)....
...f human life. When there is no victim contact, attempted murder is an aggravated form of attempted battery. [7] Consequently, attempted second-degree murder and aggravated battery are merely degree variants of the core offense of battery pursuant to section 775.021(4)(b)(2)....
...other to allow multiple convictions for what is essentially the same crime. Accordingly, I would recede from Gordon's holding that dual convictions of attempted first-degree murder and aggravated battery causing great bodily harm are permitted under section 775.021(4)(b)(2) for firing a single shot that strikes a victim but does not result in death. In this case, I would hold that the conviction of aggravated battery on a law enforcement officer in count VI, on which sentence was withheld, must be vacated pursuant to a correct application of section 775.021(4)(b)(2) to the offenses here....
CopyCited 36 times | Published | Supreme Court of Florida
...She suggests that the phrase may or may not include vicarious possession, and argues that for this precise reason we are obliged to construe the statute strictly to exclude vicarious possession in favor of the accused. She basically relies on Section 775.021(1), Florida Statutes (1975), [5] and on State v....
...OVERTON, C.J., SUNDBERG and HATCHETT, JJ., concur. KARL, J., dissents. NOTES [1] Earnest v. State,
342 So.2d 1024 (Fla. 1st DCA 1977). [2] §
775.087(2), Fla. Stat. (1975). [3] We accept jurisdiction pursuant to Art. V, § 3(b)(3), Fla. Const. [4]
342 So.2d at 1025. [5] §
775.021(1), Fla....
CopyCited 34 times | Published | Supreme Court of Florida | 2005 WL 2095673
...Anderson,
695 So.2d 309, 311 (Fla.1997) ("Legislative intent is the polestar that guides our analysis in double jeopardy issues...."). Absent a clear statement of legislative intent to authorize separate punishments for two crimes, courts employ the Blockburger [4] test, as codified in section
775.021, Florida Statutes (1999), to determine whether separate offenses exist. See Gaber v. State,
684 So.2d 189, 192 (Fla.1996) ("[A]bsent an explicit statement of legislative intent to authorize separate punishments for two crimes, application of the Blockburger `same-elements' test pursuant to section
775.021(4) ... is the sole method of determining whether multiple punishments are double-jeopardy violations.") (footnote omitted). Section
775.021 provides: (4)(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 f...
...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. § 775.021, Fla....
...oes not. See State v. Craft,
685 So.2d 1292 (Fla.1996). If so, the offenses are considered separate offenses, and the defendant may be convicted and punished for each offense. In some cases, this inquiry has involved a straightforward application of section
775.021, that is, examining the statutory elements of each offense to determine whether the offenses may be considered separate....
...n offenses which are degrees of the same offense as provided by statute. This Court explained that construction of the second exception involves a two-step inquiry: whether the crimes constitute separate offenses under Blockburger, as codified in section 775.021(4)(a); and whether the crimes are "degree variants" or aggravated forms of the same core offense....
CopyCited 34 times | Published | Supreme Court of Florida
...He was sentenced to serve five years on each of the counts, to run concurrently, and to pay a fine of $50,000. The trial court denied petitioner's motion to vacate the sentence or set aside the adjudication of guilt on the sale and possession charges on the ground that section 775.021(4), Florida Statutes (1981), precludes multiple sentencing on lesser included offenses committed during the same criminal episode....
...The problem is that, while the state is not required to prove a violation of
893.13(1)(a) in order to prove trafficking in cocaine, proof of the former is sufficient to prove the second element of the latter. We are bound to conclude that, pursuant to the Blockburger test in section
775.021(4), trafficking and any of the three sections of
893.13 are separate offenses....
...datory minimum term of imprisonment of 5 calendar years and to pay a fine of $100,000. 3. Is 400 grams or more, such person shall be sentenced to a mandatory minimum term of imprisonment of 15 calendar years and to pay a fine of $250,000. [5] (4) of section 775.021, Florida Statutes, is amended to read: 775.021 Rules of construction....
...ly. 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. Ch. 83-156, § 1, Laws of Fla. (codified at § 775.021(4), Fla....
CopyCited 31 times | Published | Supreme Court of Florida | 2004 WL 524922
motion, the trial court held a hearing under section
775.21, Florida Statutes (Supp.1998) (the Florida
CopyCited 31 times | Published | Florida 1st District Court of Appeal | 2010 Fla. App. LEXIS 10529, 2010 WL 2813567
...If the charge did occur during the same transaction or episode, we must then determine if the convictions were predicated on distinct acts. If the charges are not predicated on distinct acts and have occurred within the same criminal episode, we must next decide if the charges survive a same elements test as defined by section 775.021, Florida Statutes (2008), commonly referred to as the Blockburger [1] analysis, which provides in pertinent part: (4)(a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or mor...
...Blockburger and its Exceptions Had distinct acts been found, the analysis would end here. However, because it is unclear if the charges were predicated on distinct acts, we must next engage in the Blockburger same elements test, i.e., whether each offense has an element that the other does not. § 775.021(4)(a), Fla. Stat. (2008). In section 775.021(4)(b), the Legislature made clear its intent to "convict and sentence for each criminal offense committed in the course of one criminal episode or transaction....
...r (1) "offenses which require identical elements of proof;" (2) "offenses which are degrees of the same offense as provided by statute;" or (3) "offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense." § 775.021(4)(b), Fla....
...offense does not. Thus, the offenses survive the initial inquiry of the Blockburger analysis. However, because the offenses constitute degrees of one another as that term has been recently defined in Valdes, they fall into the exception outlined in section 775.021(4)(b)(2), and reversal is required....
...e itself provides for an offense with multiple degrees." quoting Paul,
934 So.2d 1167 (Cantero J., concurring) (emphasis in original). The statute itself creates an exception for crimes that "are degrees of the same offense as provided by statute. " §
775.021(4)(b)(2), Fla....
CopyCited 31 times | Published | Supreme Court of Florida | 1996 WL 710895
...We resolve this conflict by holding that double jeopardy does not preclude separate convictions because grand theft and armed burglary have separate statutory elements. We reach this conclusion by giving plain meaning to the rule of statutory construction codified in section 775.021(4)(a), Florida Statutes (1993), which provides in relevant part that "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." § 775.021(4)(a), Fla.Stat....
...t the dual adjudications did not violate the prohibition against double jeopardy. Gaber. The district court concluded that each offense requires proof of an element that the other does not so that the offenses must be considered as separate based on section 775.021(4)(a), Florida Statutes (1993)....
...heft of a firearm is sufficient punishment and any further punishment constitutes double jeopardy. Gaber argues that under the facts of this case, the offense of theft of a firearm is subsumed in the greater offense of armed burglary, as provided in section 775.021(4)(b)3, Florida Statutes (1993). [3] The State responds that armed burglary and grand theft of a firearm are two completely separate offenses and thus may be subject to multiple punishment without violating principles of double-jeopardy protection. § 775.021(4)(a), Fla.Stat. (1993). Each offense requires different statutory elements of proof so that proving a violation of one does not necessarily prove a violation of the other. The State also argues that the statutory exception under section 775.021(4)(b)(3), Florida Statutes (1993), does not apply because grand theft of a firearm is not a lesser-included offense within the charge of armed burglary, even where the theft of a firearm is used to enhance the burglary to armed burglary. For the reasons expressed, we agree with the position the State advances. Under the plain meaning of section 775.021(4)(a), Florida Statutes (1993), a court is required to examine each of a defendant's convictions arising out of the same incident to determine whether "each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial." § 775.021(4)(a), Fla.Stat....
...In M.P., the defendant was charged with carrying a concealed weapon, which requires proof of the element of concealment, and possession of a firearm by a minor, which requires that the person possessing the weapon be under eighteen years of age. Id. Therefore, under section 775.021(4)(a), Florida Statutes (1993), we found in M.P....
...United States v. Dixon,
509 U.S. 688, 704,
113 S.Ct. 2849, 2860,
125 L.Ed.2d 556 (1993). Thus, absent an explicit statement of legislative intent to authorize separate punishments for two crimes, application of the Blockburger [4] "same-elements" test pursuant to section
775.021(4), Florida Statutes (1993), is the sole method of determining whether multiple punishments are double-jeopardy violations....
...As we discussed above, the elements of grand theft and armed burglary require separate proof, and thus Gaber's conviction for both offenses does not violate principles of double jeopardy. Finally, Gaber's argument that the charge of grand theft is a lesser-included offense is without merit. In section 775.021(4)(b), Florida Statutes (1993), the legislature created three exceptions to the Blockburger same-elements test. Gaber argues that his conviction falls under the third exception regarding lesser-included offenses. § 775.021(4)(b)(3), Fla.Stat....
...If two statutory offenses are found to be separate under Blockburger, then the lesser offense is not subsumed by the greater offense. Therefore, Gaber's charge of grand theft is not subsumed within his charge of armed burglary. [5] In sum, the legislature set forth its rule of statutory construction in section 775.021(4)(b), Florida Statutes (1993), which clearly states that "[t]he intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction." In the instant case, legi...
...intent to, either temporarily or permanently: (a) deprive the other person of a right to the property or a benefit therefrom." Under section
812.014(2)(c)3., Florida Statutes (1993), theft becomes grand theft if the property stolen is a firearm. [3] Section
775.021(4)(b)3, Florida Statutes (1993), excludes from the general rule of construction "[o]ffenses which are lesser offenses the statutory elements of which are subsumed by the greater offense." [4] Blockburger v....
...offenses were separate and distinct because "each provision require[d] proof of an additional fact which the other [did] not." Id. at 304,
52 S.Ct. at 182. The Blockburger test, also known as the "same-elements test," has been codified in Florida at section
775.021, Florida Statutes (1993), which contains three exceptions. §
775.021(4)(b)(1), (2), (3), Fla.Stat....
CopyCited 31 times | Published | Supreme Court of Florida | 1997 WL 476416
...king possession of cocaine and simple possession of a controlled substance.
676 So.2d at 1006. The court based its holding on its conclusion that the two charged offenses each contain an element that the other lacks, pursuant to the plain meaning of section
775.021(4)(a), Florida Statutes (1989), [3] and that the dual convictions do not fall under any of the three exceptions to the statute's rule of construction. §
775.021(4)(b), Fla....
...historical considerations which we found applicable to the theft statutes in Sirmons. The district court stated regarding McCloud: The supreme court has confronted double jeopardy claims in connection with the drug laws since the legislature amended section
775.021(4) in response to the court's Carawan decision. The leading case is State v. McCloud,
577 So.2d 939 (Fla.1991), where the dual convictions involved sale of cocaine and possession (or possession with intent to sell) of cocaine. In finding no double jeopardy violation, the court said: "Section
775.021(4)(b) of the Florida Statutes (Supp.1988) currently permits dual convictions and sentences for offenses based on one act, subject to certain enumerated exceptions. McCloud asserts that possession and sale of the same quantum of cocaine is an exception under the category of "subsumed" elements in subsection
775.021(4)(b)(3)....
...In other words, McCloud argues that he cannot be convicted of possession of cocaine and sale of the same cocaine because possession is a lesser-included offense of sale. "The state argues that possession is not a lesser-included offense of sale because under section 775.021(4) (codifying the test established in Blockburger v....
...o it reversed the possession conviction but affirmed the sale conviction. Cf. State v. Daophin,
533 So.2d 761 (Fla.1988) (holding that possession is not a lesser-included offense of delivery). "An offense is a lesser-included offense for purposes of section
775.021(4) only if the greater offense necessarily includes the lesser offense....
...ultiple drug convictions and punishments. Gibbs v. State,
676 So.2d at 1004-05 (footnote omitted) (subsequent histories omitted). The district court's analysis of the existing cases is clearly correct as to our adherence to the strict application of section
775.021(4), Florida Statutes (1989), which mandates that the analysis of the double jeopardy issue is to be done by a comparison of the statutory elements of a crime....
...As correctly referenced by the district court below, we held in McCloud that statutes prohibiting sale and alternatively prohibiting possession contain different elements for purposes of double jeopardy analysis. McCloud,
577 So.2d at 941. We concluded that, pursuant to section
775.021(4)(a), Florida Statutes (1989), we were precluded from examining the evidence to determine whether McCloud possessed and sold the same quantum of cocaine such that possession would have been a lesser-included offense of sale....
...(a), Florida Statutes (1995)), provides in relevant part: It is unlawful for any person to be in actual or constructive possession of a controlled substance.... Any person who violates this provision is guilty of a felony of the third degree.... [3] Section 775.021(4)(a), Florida Statutes (1989), provides: 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...
...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. [4] Section 775.021(4)(b), Florida Statutes (1989), provides: 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....
CopyCited 30 times | Published | Supreme Court of Florida | 12 Fla. L. Weekly 248
...(Ret.), concur. SHAW, J., dissents with an opinion. SHAW, Justice, dissenting. The majority's reliance on the accusatory pleadings and the evidence at trial to determine whether an offense is a lesser included offense of another is directly contrary to section 775.021(4), Florida Statutes (1983), and to our case law holding that it is only the statutory elements which determine whether offenses are separate or lesser included....
...arged greater offenses; if they are subsumed, the offenses are necessarily included, not permissively included. Brown. Thus, by definition, they are separate offenses from those charged and are subject to separate convictions and separate sentences. §
775.021(4), Fla. Stat. In my special opinion concurring in result only to Green v. State,
475 So.2d 235, 237 (Fla. 1985), I pointed out that the 1981 schedule of lesser included offenses had been statutorily invalidated by section
775.021(4), as amended by chapter 83-156, Laws of Florida, and that we should direct that category two offenses be deleted from the schedule of lesser included offenses....
...Moreover, the legislature has specifically prescribed the method of determining whether any two criminal offenses are separate: [O]ffenses 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. § 775.021(4) (emphasis supplied). There are only two mutually exclusive categories into which any two given offenses may be placed under section 775.021(4)....
..., they are the same offense for purposes of *264 charging, and separate convictions or sentences are not permitted. The permissive lesser included offenses in our schedule of lesser included offenses are constitutionally invalid because, contrary to section 775.021(4), they usurp legislative prerogative by treating statutorily separate offenses as lesser included offenses....
...[4] The state exercises its prerogative by information or indictment which notifies the defendant of the specific statutes he is charged with violating. This charge includes the greater cited offense and all necessarily included offenses as defined by section 775.021(4). If the state wishes to charge the so-called permissive lesser included offenses as separate offenses, it is entitled to do so under section 775.021(4)....
...nal Procedure 3.510. An attempt consists of one or more but not all of the statutory elements of a completed offense. Thus, by definition, all attempts are a necessarily included, not permissively included, lesser offense of the completed offense. §§
775.021(4) and
777.04, Fla....
...We are dealing with an unconstitutional concept, not with a mere procedural flaw. I would immediately discontinue the use of permissively lesser included offenses and direct that the entire schedule of lesser included offenses (categories one and two) and rules 3.490 and 3.510(b) be brought into consonance with section 775.021(4)....
...[2] See also Judge Cowart's dissent to Baker v. State,
425 So.2d 36 (Fla. 5th DCA 1982), quashed in part by
456 So.2d 419 (Fla. 1984), which showed that whatever validity it once had, the category of permissive lesser included offenses was nullified by the enactment of §
775.021(4) repudiating the single transaction rule....
CopyCited 30 times | Published | Supreme Court of Florida | 12 Fla. L. Weekly 424
...icted of violating section
800.04, Florida Statutes (1983), based on a lesser included offense theory. The statutory elements of section
800.04, as they existed in 1983, are not subsumed within those of section
794.011 and the offenses are separate. §
775.021(4), Fla....
...In other words, inclusion of the phrase prohibits conviction of both offenses for the same conduct. It follows that, as amended, section
800.04 is now a necessarily lesser included offense of section
794.011, Florida Statutes (1985). The reason this necessarily follows is that we know from section
775.021(4) that all separate offenses are subject to separate convictions and sentences, and, if two offenses are not separate, then one must be necessarily included in the other and separate convictions and sentences are prohibited....
CopyCited 29 times | Published | Supreme Court of Florida | 1998 WL 394091
...It is a cardinal rule of statutory construction, known as the rule of lenity, that a criminal statute shall be "strictly construed," and where a statute is "susceptible of differing constructions, it shall be construed most favorably to the accused." § 775.021(1), Fla....
...State,
576 So.2d 1310, 1312 (Fla.1991). The rule of lenity applies "not only to interpretations of the substantive ambit of criminal prohibitions, but also to the penalties they impose." Carawan v. State,
515 So.2d 161, 165 (Fla.1987), superseded by statute on other grounds, §
775.021(4), Fla....
...This is not the language the legislature utilized in either subsection 921.001(5) or 921.0014(2). "One of the most fundamental principles of Florida law is that penal statutes must be strictly construed according to their letter." Perkins,
576 So.2d at 1312. Because of the rule of lenity, codified in section
775.021(1), the judiciary does not possess the prerogative to rewrite a criminal statute to the disadvantage of the defendant....
CopyCited 27 times | Published | Supreme Court of Florida | 34 Fla. L. Weekly Supp. 41, 2009 Fla. LEXIS 250, 2009 WL 137514
...nnilingus, and sexual battery for fellatio were invalid because the State failed to prove that three sexual acts were separate transactions. The Fourth District ruled that they were separate because each required different elements of proof, quoting section 775.021(4), Florida Statutes (1983), which provides that separate criminal offenses in the course of one criminal transaction or episode are separate criminal offenses....
...We agree that sexual acts of a separate character and type requiring different elements of proof, such as those proscribed in the sexual battery statute, are distinct criminal acts that the Florida Legislature has decided warrant multiple punishments. *136 See § 775.021(4)(a), Fla....
CopyCited 26 times | Published | Florida 4th District Court of Appeal | 1999 WL 966743
...775.084 or any other provision of law." We conclude that this section overrides the mandatory duty to sentence a qualifying defendant as a prison releasee reoffender under section
775.082(8)(d), where the court elects to hand down a harsher sentence as a habitual offender. Furthermore, section
775.021(4)(b) states: 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.......
CopyCited 26 times | Published | Supreme Court of Florida | 2007 WL 1437467
...Paul,
934 So.2d 1167, 1173 (Fla.2006) (similar facts). Reeves concedes that if he had received standard CPC sentences for the four offenses committed in these two episodes, the trial court would have had the discretion to impose his sentences consecutively, resulting in a twenty-year sentence. See §
775.021(4), Fla. Stat. (1997); Lifred v. State,
643 So.2d 94, 96 (Fla. 4th DCA 1994) (holding that section
775.021(4), Florida Statutes, generally grants judges "discretion to impose separate sentences, either concurrently or consecutively, for each separate criminal offense arising out of a single criminal transaction or episode")....
...to allow judges to impose greater punishments than those provided for in the PRR statute. Moreover, nothing in the PRR statute can be construed as restricting a trial judge's general discretion to impose sentences consecutively or concurrently. See § 775.021(4), Fla....
...er consecutively to his PRR sentence for resisting a law enforcement officer with violence. Thus, Reeves' twenty-year overall sentence is legal. It is so ordered. LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, and CANTERO, JJ., concur. NOTES [1] Section 775.021(4)(a), Florida Statutes (1997), states: 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...
CopyCited 26 times | Published | Supreme Court of Florida | 1997 WL 211582
...crimes ... .... and who had in his possession a "firearm"... shall be sentenced to a minimum term of imprisonment of 3 calendar years. §
775.087, Fla. Stat. (1993). The above section is silent concerning the stacking of mandatory minimum terms, and section
775.021, Florida Statutes (1993), entitled "Rules of construction," offers little additional guidance: (4)(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. §
775.021, Fla....
CopyCited 24 times | Published | Supreme Court of Florida | 41 Fla. L. Weekly Supp. 399, 2016 Fla. LEXIS 2075
...This construction is also favored by another canon of statutory construction, the rule of lenity. “[W]hen criminal statutes are subject to competing, albeit reasonable, interpretations, they must be ‘strictly construed .., most favorably to the accused.’ ” Polite v. State,
973 So.2d 1107, 1111 (Fla.2007) (quoting §
775.021(1), Fla. Stat. (2002)). This extremely important statutory canon is codified in section
775.021(1), Florida Statutes (2012), which provides that, “[t]he 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.” §
775.021(1), Fla....
CopyCited 24 times | Published | Florida 1st District Court of Appeal | 2017 WL 2374401, 2017 Fla. App. LEXIS 7886
...the convictions were predicated on distinct acts.” Id. Third, “[i]f the charges are not predicated on distinct acts and have occurred within the same criminal episode, we must next decide if the charges survive a same elements test as defined by section 775.021, Florida Statutes [ (2013) ], commonly referred to as the Blockburger analysis.” Id....
...ng during a single criminal episode, the reviewing court must apply the third step of the analysis, same elements test. In this step, the court must determine whether each of the charged offenses requires proof of an element that the other does not. § 775.021(4)(a), Fla....
...But three statutory exceptions to that rule must be considered, to wit: 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. § 775.021(4), Fla....
CopyCited 22 times | Published | Supreme Court of Florida | 2002 WL 87367
...The First District reversed Ward's armed carjacking conviction, concluding that "there was only one `forceful taking.' All of the victim's property was taken as part of the same criminal transaction or episode, without any temporal or geographic break." Id. at 729-30. After applying the Blockburger [2] test, codified in section 775.021(4)(a), Florida Statutes (1995), for determining whether convictions for multiple crimes stemming from one criminal episode violated double jeopardy, the First District noted that the State conceded that armed carjacking and armed robbery contain the same statutory elements....
...QUINCE, J., concurs in result only. PARIENTE, J., dissents with an opinion. PARIENTE, J., dissenting. I respectfully dissent because, in my opinion, I believe that today's majority opinion improperly disregards the Blockburger [4] *205 test codified in section 775.021(4), Florida Statutes (1997)....
...Therefore, the majority would conclude that the Double Jeopardy Clause is not implicated under the circumstances. However, for the reasons explained below, I fear that the majority has circumvented the double jeopardy protections articulated in Blockburger and codified in section 775.021(4)....
..."
284 U.S. at 304,
52 S.Ct. 180 (citations omitted) (emphasis supplied). Thus, it becomes necessary to apply the Blockburger test when, as in this case, two distinct statutory provisions are involved in the same criminal act, transaction or episode. Section
775.021 codifies the *206 Blockburger test. [5] Section
775.021(4)(b) provides a method to guide courts when determining if a defendant may be separately charged and convicted of criminal offenses that arise in the course of one criminal episode or transaction....
...In Gordon v. State,
780 So.2d 17, 19-20 (Fla.2001), this Court recently reiterated the principle that "` [a]bsent a clear statement of legislative intent to authorize separate punishments for two crimes,' courts employ the Blockburger test, as codified in section
775.021, Florida Statutes (1997), to determine whether separate offenses exist." See also Gaber v. State,
684 So.2d 189, 192 (Fla.1996) ("[A]bsent an explicit statement of legislative intent to authorize separate punishments for two crimes, application of the Blockburger `same-elements' test pursuant to section
775.021(4)......
...nt criminal statutes that arise out of the same criminal act or transaction. See Missouri v. Hunter,
459 U.S. 359, 367-68,
103 S.Ct. 673,
74 L.Ed.2d 535 (1983). Thus, this Court must apply the legislatively adopted rules of construction set forth in section
775.021(4)(b) to determine whether Cruller can be punished separately for robbery and carjacking, where the offenses are predicated on a single underlying criminal transaction....
...ney or other property which may be the subject of larceny," §
812.13, Fla. Stat.; whereas, carjacking is limited to "the taking of a motor vehicle which may be the subject of larceny." §
812.133, Fla. Stat. Pursuant to the statutory analysis under section
775.021(4), the robbery and carjacking statutes do not each require proof of an element that the other statute does not. Thus, robbery and carjacking are not separate offenses pursuant to the legislatively-mandated test for legislative intent set forth in section
775.021(4)(b)....
...slature that it intended to authorize separate punishments for carjacking and robbery; hence, there is no need to employ the Blockburger test in the instant case. [4] Blockburger v. United States,
284 U.S. 299,
52 S.Ct. 180,
76 L.Ed. 306 (1932). [5] Section
775.021(4), Florida Statutes (1995), provides: (4)(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, sh...
CopyCited 22 times | Published | Supreme Court of Florida
...ghter. There is no double jeopardy problem because the Blockburger test [2] has been met. The burglary with assault on the daughter was a distinct and separate crime and distinguishes this case from State v. Hegstrom,
401 So.2d 1343 (Fla. 1981). See §
775.021(4), Fla....
...Separate sentences in this situation are clearly improper under State v. Hegstrom,
401 So.2d 1343 (Fla. 1981). While the crimes are distinct and the separate convictions may stand, sentence should be imposed only for the more serious crime of felony murder. The underlying felony is a lesser included offense under section
775.021(4), Florida Statutes (1979), as we have construed it. The majority resolves this issue by saying that there is no double jeopardy problem. Appellant, however, presents no double jeopardy claim but, rather, contends that the separate sentence for the underlying felony violates the intent of section
775.021(4) as construed by this Court in State v....
...Thus the majority focuses on the particular facts of this case in holding that the enhanced burglary conviction required proof of an element not needed to support the felony murder conviction. This takes us back to the kind of reasoning the courts were using prior to the enactment of section
775.021(4), which abrogated the singletransaction rule. See Borges v. State,
415 So.2d 1265 (Fla. 1982); Johnson v. State,
366 So.2d 418 (Fla. 1978). The burglary conviction is the underlying felony upon which the murder conviction rests. Therefore, under section
775.021(4) as interpreted in Hegstrom, there should be no separate punishment for the burglary....
CopyCited 21 times | Published | Supreme Court of Florida | 2005 WL 243274
constitutionality of the Florida Sexual Predators Act, section
775.21, Florida Statutes (2003). In Milks v. State
CopyCited 21 times | Published | Supreme Court of Florida | 1996 WL 734518
...ate punishments. M.P.,
682 So.2d at 80-82. However, even without such a specific legislative statement, the legislature has expressed its intent "to convict and sentence for each criminal offense committed in the course of one criminal episode." See §
775.021(4)(b), Fla. Stat. (1995). Section
775.021(4)(a) includes a codification of the Blockburger [1] test, sometimes referred to as the same-elements test, which "inquires whether each offense contains an element not contained in the other; if not, they are the same offense and double jeopardy bars subsequent punishment or prosecution." Blockburger,
284 U.S. at 304,
52 S.Ct. at 182. In applying section
775.021 to a single criminal transaction or episode, we look to see whether the episode constitutes more than one separate criminal offense....
CopyCited 20 times | Published | Supreme Court of Florida | 1990 WL 32483
...In Palmer, the defendant walked into a funeral parlor during a wake and robbed those in attendance. The trial court imposed three-year mandatory minimum sentences to run consecutively on each of thirteen consecutive sentences for robbery, for a total of thirty-nine years without eligibility for parole. We recognized that section 775.021(4), Florida Statutes (1981), requires separate sentences for separate offenses arising from a single criminal transaction or episode and allows the trial court to order the sentences served concurrently or consecutively....
...places. Id. The decisions in Palmer and Murray were based on the perceived legislative intent in enacting section
775.087(2), Florida Statutes. [1] In Palmer, the Court rejected the state's argument that this section, when read in pari materia with section
775.021(4), [2] allows the "stacking" of mandatory three-year minimum sentences....
...rs when the convictions were for offenses arising from incidents occurring at the same time and place during a continuous course of criminal conduct. We also concluded that the legislature did not intend such a result when it added subsection (4) to section 775.021....
...We hold that the legislature intended that the minimum mandatory time to be served before becoming eligible for parole from a conviction of first-degree murder may be imposed either consecutively or concurrently, in the trial court's discretion, for each and every homicide. See § 775.021(4), Fla....
...firefighter while the officer or firefighter is engaged in the lawful performance of his duties and who had in his possession a "firearm," as defined in s.
790.001(6), ... shall be sentenced to a minimum term of imprisonment of 3 calendar years. [2] Section
775.021(4), Florida Statutes (1985), provides: (4) Whoever, in the course of one criminal transaction or episode, commits separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal o...
...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. [3] Although not applicable to the present decision, the legislature has recently amended section 775.021(4), Florida Statutes....
CopyCited 20 times | Published | Florida 2nd District Court of Appeal | 1990 WL 80800
...673, 681-82,
74 L.Ed.2d 535, 547 (1983) (Marshall, J., dissenting). We do not need to reach this constitutional issue because it is clear that the Florida Statutes do not authorize multiple convictions in *521 cases in which an additional punishment would be improper. Section
775.021(4), Florida Statutes (Supp....
...or prior offenses, and thereby impermissibly punishing the defendant. Fla. R.Crim.P. 3.701. Accordingly, we hold that trial courts are not permitted to enter an adjudication of guilt for an offense when a sentence could not legally be imposed under section 775.021(4), Florida Statutes (Supp....
...1981) (addressing amendments to the schedule of lesser included offenses). All of the DUI elements fall within the greater offense of DUI manslaughter. §
316.193, Fla. Stat. (Supp. 1988). Mr. Kurtz cannot be convicted of both DUI and DUI manslaughter arising from the same act. See §
775.021(4), Fla....
...1988); see also Miller v. State,
509 So.2d 1387 (Fla. 4th DCA 1987). III. THE DUAL ADJUDICATIONS FOR MANSLAUGHTER. Our analysis of the homicide is complicated by the fact that it occurred a few weeks after the effective date of the amendment to the rule of lenity. §
775.021(4)(a), Fla....
...We confess that we have experienced considerable difficulty in discerning the *522 correct analysis for this issue. Intuitively, one senses that a single wrongful death should justify only a single conviction and sentence for manslaughter. On the other hand, the recent amendment to the rule of lenity, section 775.021(4)(a), Florida Statutes (Supp....
...ses before the courts would be obligated to convict and sentence for both crimes arising from a single death. Thus, even though the two crimes were not identical for purposes of a Blockburger [9] analysis and were "separate" offenses for purposes of section 775.021(4), Florida Statutes (1983), Houser still required a clearer intent from the legislature to treat the two statutory crimes as two separate offenses. Section 775.021(4)(a), Florida Statutes (Supp....
...This intent does not apply in cases that fall into three categories: 1) offenses with "identical elements of proof," 2) offenses which are "degrees of the same offense as provided by statute," and 3) offenses "which are lesser offenses the statutory elements of which are subsumed by the greater offense." § 775.021(4)(b), Fla....
...with many precedents over many years which hold that one death equates to one homicide. [11] The legislature *523 did not proceed to swiftly overrule those cases as it did with Carawan. Nothing in the legislative history concerning the amendment to section 775.021 has been presented to us which would suggest that the legislature intended to overrule Houser and its predecessors....
...Thus, we choose to follow Houser. We certify the following question to be of great public importance: WHETHER A DEFENDANT CAN BE CONVICTED AND SENTENCED FOR DUI MANSLAUGHTER AND MANSLAUGHTER WITH CULPABLE NEGLIGENCE ARISING OUT OF ONE DEATH IN LIGHT OF SECTION 775.021, FLORIDA STATUTES (SUPP....
CopyCited 20 times | Published | Supreme Court of Florida
...ntends to authorize separate punishments.”
Valdes, 3 So. 3d at 1069. Where “there is no clear statement of legislative intent to
authorize or to prohibit separate punishments,” courts employ the Blockburger 8
same-elements test, codified in section 775.021(4), Florida Statutes (2018), to
determine if there is a double jeopardy violation....
CopyCited 19 times | Published | Florida 5th District Court of Appeal | 2004 WL 2254537
...If the Legislature did not clearly express *484 its intention to authorize separate punishments, the courts must resort to the test of statutory construction established in Blockburger v. United States,
284 U.S. 299,
52 S.Ct. 180,
76 L.Ed. 306 (1932), now codified in section
775.021(4), Florida Statutes (2002)....
...us to conclude that there is no clear legislative intent to authorize two separate punishments for acts of lewd and lascivious behavior alleged to be in violation of the statute. Moreover, our application of the Blockburger [2] analysis codified in section 775.021(4) does not lead us to conclude that each act in violation of the statute is a separate offense....
CopyCited 19 times | Published | Florida 5th District Court of Appeal
...Gibson,
452 So.2d 553 (Fla. 1984), the supreme court held that a defendant could be convicted and punished for both the firearm offense (§
790.07(2), Fla. Stat.) and the underlying felony. In footnote 6 in Gibson the supreme court observed that the recent amendment of section
775.021(4), Florida Statutes, specifically adopted the Blockburger rule as the test for determining whether statutory offenses with common constituent elements are separate offenses (authorizing separate prosecutions, trials, convictions and...
...e same offense" within the constitutional double jeopardy prohibition against being twice placed in jeopardy for "the same offense." As noted in that footnote and the following footnote, the amendment made it clear that the legislature intended that section 775.021(4), Florida Statutes, be construed to be in align with the Blockburger construction of the constitutional double jeopardy clauses....
...3d DCA 1982), and Burke v. State,
415 So.2d 753 (Fla. 3d DCA 1982)). The dissent in Baker agreed that Baker could be constitutionally convicted of both offenses but argued Baker could also be sentenced for both offenses under the legislative intent embodied in section
775.021(4), Florida Statutes....
...ancient traditional judicial construction of the double jeopardy clause, the supreme court should have approved Jackson, Bogard and Alvarez and disapproved Baker, Marshall and Burke and held that under constitutional double jeopardy as well as under section 775.021(4), Florida Statutes, as amended, a person could not be charged, prosecuted, tried, convicted or punished for both the statutory firearm offense (§ 790.072, Fla....
...[2] The effect of this alignment is that if a defendant can be constitutionally tried for an offense because such offense is substantively different from some other similar or related offense (as determined by the so-called Blockburger test), then section 775.021(4), Florida Statutes, mandates that a sentence be imposed upon a conviction for such offense. If the alignment and construction of the statute and the constitution is true and correct, the converse of this proposition must also be true and correct, i.e., if a defendant cannot be sentenced under section 775.021(4), Florida Statutes, for an offense, then he cannot be constitutionally convicted for that offense....
CopyCited 19 times | Published | Supreme Court of Florida | 2002 WL 87371
...Further, Knight argues that section
775.082(8)(a)2.a. is ambiguous because it is susceptible to different interpretations and it should thus be construed in the manner most favorable to the accused as provided for under the statutory lenity rule set out in section
775.021(1), Florida Statutes (1997)....
CopyCited 18 times | Published | Supreme Court of Florida | 13 Fla. L. Weekly 591
...The statutory elements of reckless driving include disregard for the safety of persons or property. §
316.192, Fla. Stat. (1985). Each offense contains a statutory element not present in the other which by statutory definition means they are separate offenses subject to separate convictions and punishment. §
775.021(4), Fla. Stat. (1985). The conclusion of the majority, and the court below, that reckless driving is a lesser included offense of vehicular homicide is thus by statutory definition erroneous. Application of section
775.021(4) ends the inquiry and resolves the case....
...Respondent was not entitled to a lesser included instruction because reckless driving is a separate offense from, and not a lesser included offense of, vehicular homicide. The correctness of the above analysis is confirmed by recent legislative action. Chapter 88-131, section 7, Laws of Florida, amends section 775.021(4) to read as follows (changes are underlined): (4)(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...
...Missouri v. Hunter,
459 U.S. 359, 368-69,
103 S.Ct. 673, 679-80,
74 L.Ed.2d 535 (1983). See also State v. Enmund,
476 So.2d 165 (Fla. 1985). As the quotation above shows, by codifying the rule of Blockburger v. United States,
284 U.S. 299 (1932), in section
775.021(4), the Florida Legislature has established a statutory double jeopardy clause which grants an accused greater protection than that offered by the double jeopardy clause of the United States and Florida Constitutions. Second, because reckless driving is a separate offense subject to separate convictions and punishment under section
775.021(4), there is no need to resort to Martin to show that there is no right to a lesser included instruction....
...Bloom,
497 So.2d 2, 3 (Fla. 1986). The statutory elements of permissive lesser included offenses, as defined by Brown v. State,
206 So.2d 377, 383 (Fla. 1968), are not subsumed within the charged greater offense and are thus separate offenses. Under section
775.021(4), a court is prohibited from adding a lesser separate offense to the charged greater offense by mislabeling it as a "permissive" lesser included offense and instructing the jury that it may convict in the alternative. Ohio v. Johnson,
467 U.S. 493,
104 S.Ct. 2536,
81 L.Ed.2d 425 (1984); Bloom. The rationale of the majority here and in Martin is sound, assuming that the lesser offense is truly a necessarily lesser included offense as defined by section
775.021(4)....
...the jury "pardon" him. This is no part of the jury trial guaranteed by the Constitution. State v. Jess,
523 So.2d 1268, 1269 (Fla. 5th DCA 1988) (footnote omitted). [5] The legislature, at least in part, has responded to the above urging by amending section
775.021(4) to proscribe, except for attempts, the presentation of category two, permissive lesser included offenses, as alternative jury verdicts....
...In the Matter of the Use By the Trial Courts of the Standard Jury Instructions in Criminal Cases and the Standard Jury Instructions in Misdemeanor Cases,
431 So.2d 594, 598 (Fla. 1981). Accordingly, I would take this opportunity to amend the jury instructions and recede from all confusing case law which is contrary to section
775.021(4), as amended....
...In addition, rule 3.510(b) should be amended to remove the contradiction with rule 3.510(a) [6] by adopting the rule of Sparf, *344 Sansone, Roberts, and Martin. This amendment would require only that we delete the words "a necessarily included offense or" from rule 3.510(b). One other aspect of section 775.021(4) deserves comment....
...ogic, and justice. However, there are other instances, not involving underlying felonies, where conviction and punishment for both a homicide and an attendant felony may not be consistent with logic and justice even though it is consistent with law, section 775.021(4)....
...r). I recognize that few prosecutors would separately charge battery or aggravated battery under these circumstances and the question may be more theoretical than actual. Nevertheless, I would recommend that the legislature add a fourth exception to section 775.021(4)(b) ruling out the possibility of such separate convictions and sentences....
...death of, or great bodily harm to, another." §
782.071, Fla. Stat. (1985). Reckless driving, a misdemeanor, is "driv[ing] any vehicle in willful or wanton disregard for the safety of persons or property." §
316.192, Fla. Stat. (1985). [1] The new §
775.021(4)(b) does not change the substantive meaning of §
775.021(4)(a). It simply explains the meaning of
775.021(4)(a) and lists the only three instances where an offense may be treated as a lesser included offense, i.e., an offense which is not separate from the charged greater offense and not subject to separate conviction and separate punishment. [2] In Carawan v. State,
515 So.2d 161 (Fla. 1987), we relied on a perceived distinction between "act" and "acts" and the rule of lenity in §
775.021(1), Fla. Stat. (1985), to hold that the legislature did not intend separate convictions and separate sentences for two separate offenses as stated in §
775.021(4), Fla. Stat. (1985). The amendment expressly rejects our interpretation by making it clear that we are to strictly apply §
775.021(4) without regard for "act" or "acts" and the rule of lenity....
...t separate offenses will receive separate convictions and separate punishments, bars further use of category two, permissive lesser included offenses, except for attempts, as alternatives to the charged offense. The three types of offenses listed in § 775.021(4)(b) are the only lesser included offenses which may be presented as alternative verdicts for the jury to consider. [3] Chikitus was actually overridden in 1983 when Ch. 83-156, Laws of Fla. was enacted, substantially amending § 775.021(4) to define the method of identifying separate and lesser included offenses. Theretofore, because of a misperception of the double jeopardy clause, the legislature had exempted lesser included offenses from the operations of § 775.021(4), Fla....
CopyCited 18 times | Published | Florida 3rd District Court of Appeal | 2003 WL 22399573
defendant a "sexual predator," in accordance with section
775.21, Florida Statutes (1999), the Florida Sexual
CopyCited 18 times | Published | Supreme Court of Florida | 11 Fla. L. Weekly 124
...hment for each, if a comparison of the statutory elements, without regard to the facts as alleged in the information or as adduced at trial, reveals that each offense requires proof of an element that the other does not. Carpenter,
417 So.2d at 988; §
775.021(4), Fla....
...Therefore, we again conclude that these are separate offenses. Where, based on their statutory elements, offenses are separate and distinct, *416 the intent of the legislature clearly is to provide for separate convictions and punishments. State v. Baker,
452 So.2d 927, 929 (Fla. 1984); §
775.021(4), Fla....
CopyCited 18 times | Published | Supreme Court of Florida | 1996 WL 154126
...The Blockburger test, sometimes referred to as the same-elements test, "inquires whether each offense contains an element not contained in the other; if not, they are the `same offence' and double jeopardy bars additional punishment and successive prosecution." Id. The Blockburger test, has been codified in Florida at section 775.021, Florida Statutes (1995), which provides: (4)(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,...
...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. For double jeopardy analysis, in applying section 775.021 to a single criminal transaction or episode, we look to see whether the episode constitutes more than one separate criminal offense....
CopyCited 17 times | Published | Supreme Court of Florida | 10 Fla. L. Weekly 467
...ay or may not be included depending on the accusatory pleading and the evidence at trial. The schedule of lesser included offenses inaccurately shows third-degree felony murder as a category two lesser included offense of first-degree felony murder. Section 775.021(4), Florida Statutes (1981), excluded lesser included offenses from its operation, leaving it to the courts to define lesser included offenses; we did so by promulgating the schedule of lesser included offenses in 1981. However, chapter 83-156, Laws of Florida [2] has since deleted the exclusion of lesser included offense from the operations of section 775.021(4), Florida Statutes (1983)....
...Implicitly, if each does not contain a unique element, then one is a lesser included offense of the other. The effect of this deletion is to withdraw from the courts the authority to define lesser included offenses in a manner contrary to the statutory provisions of section 775.021(4). This has the practical impact of nullifying all the category two (permissive) lesser included offenses of the schedule. Under section 775.021(4) offenses are either separate or lesser included, based on the statutory elements....
...First, there was no evidence introduced to support a theory of first-degree felony murder. None of the ten enumerated felonies of first-degree murder are arguably present. Second, if the statutory elements of section
790.19 and the ten enumerated felonies under first-degree felony murder are tested in accordance with section
775.021(4), Florida Statutes (1983), Blockburger test, then section
790.19 is a separate offense from all of the ten enumerated felonies and cannot be a lesser included offense of first-degree murder. The district court was correct in limiting its consideration to premeditated murder. In my opinion, the schedule of lesser included offenses has been outdated or overruled by section
775.021(4) and the cumulative effect of various holdings by the United States Supreme Court which recognize the very nearly unlimited authority of the legislative branch to define offenses without violating the double jeopardy clause of the fifth amendment to the United States Constitution....
...United States,
450 U.S. 333,
101 S.Ct. 1137,
67 L.Ed.2d 275 (1981); Whalen v. United States,
445 U.S. 684,
100 S.Ct. 1432,
63 L.Ed.2d 715 (1980). Until such time as we are able to revise the schedule of lesser included offenses to bring it into consonance with section
775.021(4), we should direct the trial courts to delete category two lesser included offenses from the schedule of lesser included offenses and to look to the statutory elements to determine if offenses are lesser included or separate. NOTES [*] We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. [1] Blockburger v. United States,
284 U.S. 299,
52 S.Ct. 180,
76 L.Ed. 306 (1932). The legislature has adopted this test in section
775.021(4), Florida Statutes (1983). [2] In pertinent part, chapter 83-156 reads as follows (overstrike indicates deletions, underline, new provisions):
775.021 Rules of construction....
CopyCited 17 times | Published | Supreme Court of Florida | 1995 WL 500396
...He was sentenced to seventy-five years on each armed robbery count. In addition, the court sentenced him to three years minimum mandatory on each count of armed robbery. [1] On appeal, the State argued that when section
775.087(2), [2] Florida Statutes (1981), and section
775.021(4), [3] Florida Statutes (1981), were read together, they permitted the stacking of consecutive mandatory three-year minimum sentences....
...Daniels was charged with separate offenses arising from one criminal episode. This Court held that Daniels' minimum mandatory sentences arising from crimes committed during one criminal episode could only be imposed concurrently and not consecutively. In conclusion, we rejected the State's argument that section 775.021, Florida Statutes (Supp. 1988), required that minimum mandatory sentences be imposed consecutively and said: In the first place, our opinion in Palmer rejected the contention that section 775.021(4), Florida Statutes (1981), which was worded substantially the same as section 775.021(4)(a), Florida Statutes (Supp. 1988), permitted the stacking of consecutive minimum mandatory sentences. The subsequent addition of subsection (b) to section 775.021(4) was designed to overrule this Court's decision in Carawan v....
...minimum mandatory sentences, since both of these minimum mandatory sentences are enhancements. Also, like Daniels, the crimes for which Jackson was convicted do not contain a provision for a minimum mandatory sentence. Finally, the State argues that section 775.021(4), Florida Statutes (1993), which gives the trial court discretion to impose sentencing either consecutively or concurrently, applies to all criminal offenses because section 775.021(2) specifically states: "The provisions of this chapter are applicable to offenses defined by other statutes, unless the code otherwise provides." Thus, the State claims that because the possession-offirearm statute at issue here does...
...ces 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. § 775.021(4)(a), Fla....
...In its relevant part, this subparagraph states: 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. § 775.021(4)(b), Fla....
CopyCited 16 times | Published | Florida 2nd District Court of Appeal | 2015 Fla. App. LEXIS 14131, 2015 WL 5618273
...Moreover,
because the statutory elements of solicitation are entirely
subsumed by the statutory elements of traveling after
solicitation, the offenses are the same for purposes of the
Blockburger same-elements test codified in section
775.021(4), Florida Statutes.
Id....
CopyCited 16 times | Published | Supreme Court of Florida | 1992 WL 324894
...pardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Missouri v. Hunter,
459 U.S. 359, 366,
103 S.Ct. 673, 678,
74 L.Ed.2d 535 (1983). Our legislature expressed its intent in section
775.021(4), Florida Statutes (1989), which provides: (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 ......
...§
810.06, Fla. Stat. (1989); Estevez v. State,
189 So.2d 830 (Fla. 2d DCA 1966), cert. dismissed,
200 So.2d 807 (Fla. 1967); see Fla.Std.Jury Instr. (Crim.) at 138. Each of these crimes requires proof of a statutory element that the other does not. Therefore, section
775.021(b) appears to dictate that Jones could be convicted of both crimes....
...He would have committed the crime except that [someone prevented him from committing the crime of (crime charged).] [he failed.] Fla.Std.Jury Instr. (Crim.) at 55. [2] The dictates of Carawan v. State,
515 So.2d 161 (Fla. 1987), no longer control the interpretation of section
775.021(4)....
CopyCited 16 times | Published | Supreme Court of Florida | 2007 WL 1285836
...He claims that the rules regarding the forfeiture of fees are ambiguous and, therefore, the rules should be construed in favor of the accused, i.e., St. Louis should not be subject to this sanction. We disagree. Typically, the rule of lenity, as codified in section
775.021, Florida Statutes (2006), only applies in the criminal context. See, e.g., Jones v. State,
728 So.2d 788 (Fla. 1st DCA 1999). The rule is applicable where the language of a criminal statute is susceptible to differing interpretations, thus allowing for construction in favor of the accused. Id. §
775.021(1). Further, section
775.021(3) provides that "[t]his section does not affect the power of a court to punish for contempt or to employ any sanction authorized by law for the enforcement of an order or a civil judgment or decree." (Emphasis added.) Bar disciplinar...
CopyCited 16 times | Published | Supreme Court of Florida | 1992 WL 110898
...f the charge contained in the information or nothing at all, that option is not his."). While continuing to maintain that Johnson was properly convicted of aggravated battery, the State also takes the position that the 1988 amendment to section *221 775.021(4), Florida Statutes (1987), had the effect of eliminating category two permissive lesser included offenses. [1] In chapter 88-131, Laws of Florida, the legislature made the following changes in section 775.021(4): (4) (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 ea...
...es under which the defendant could not be convicted of two crimes arising out of the same transaction even though each contained an element not contained in the other. The purpose of chapter 88-131 was to overrule our opinion in Carawan. As amended, section 775.021(4) makes it clear that a defendant may be convicted of two or more criminal offenses arising out of the same transaction as long as each criminal offense contains at least one separate element. Necessarily lesser included offenses were listed in section 775.021(4)(b)3 as an exception to the stated legislative intent to convict for each criminal offense committed in the course of one criminal transaction because by definition necessarily lesser included offenses do not have any elements which are not also contained in the greater offense....
CopyCited 16 times | Published | Florida 1st District Court of Appeal | 1998 WL 233360
...on. However, relying on dicta found in Wallace v. State,
689 So.2d 1159 (Fla. 4th DCA), review granted,
699 So.2d 1377 (Fla.1997), the state argues that the Grappin/Watts "a/any test" has since been legislatively overruled by the adoption in 1988 of section
775.021(4)(b), Florida Statutes....
...Jones,
280 So.2d 431 (Fla.1973) (district courts of appeal may state their reasons for advocating that the supreme court recede from established precedent, but are bound to follow such precedent until overruled). In dicta, the Wallace court suggests that the legislature's adoption in 1988 of section
775.021(4)(b), Florida Statutes, had effectively overruled the holdings in Grappin and Watts.
689 So.2d at 1162-63. The state here relies on that dicta to support its argument that the Grappin/Watts "a/any test" is no longer good law. Section
775.021(4)(b) has remained unchanged since its enactment in 1988....
...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. As the court pointed out in State v. Smith,
547 So.2d 613 (Fla.1989), the intent behind the legislature's adoption of section
775.021(4)(b) was to overrule the court's earlier holding in Carawan v. State,
515 So.2d 161 (Fla.1987), that multiple punishments were not permissible for two or more offenses arising out of a single act. According to the court, section
775.021(4)(b) removed the previous ambiguity in the statute regarding legislative intent....
...306 (1932), was to be used to determine whether offenses are separate. However, as the court noted, the addition of paragraph (4)(b) also made it clear that the legislature "d[id] not intend multiple punishment for the same offense."
547 So.2d at 616. It seems to us that section
775.021(4)(b) was intended merely to make clear that multiple punishments are to be imposed for separate offenses regardless of whether they all arose out of a single act....
...ds the proper unit of prosecution to be when it uses ambiguous language, i.e., whether the language used is intended to make multiple acts occurring at the same time one offense or separate offenses. Accordingly, we do not agree that the adoption of section 775.021(4)(b) has any bearing on the continued vitality of the Grappin/Watts "a/any test" as a means by which to arrive at an answer to such questions....
...disregard controlling precedent of the supreme court. Hoffman v. Jones,
280 So.2d 431 (Fla.1973); Shands Teaching Hospital & Clinics, Inc. v. Smith,
480 So.2d 1366 (Fla. 1st DCA 1985), approved,
497 So.2d 644 (Fla.1986). We find no such authority in section
775.021(4)(b)....
CopyCited 15 times | Published | Supreme Court of Florida
...1st DCA 1981), held that respondent's sentence for petit theft must be vacated because both petit theft and grand theft of a firearm are defined in the same statute, section
812.014, Florida Statutes (1979). In Thomas, the district court interpreted that part of section
775.021(4), Florida Statutes (1979), which states that "[w]hoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses... ." The district court in Thomas construed that portion of section
775.021(4) which refers to "two or more criminal statutes" to mean that the statute did not extend to instances of multiple violations of a single statute and held that "[u]nless distinct statutory provisions are involved, it is not appropriate to apply the legislative intent test of Blockburger v....
...to commit burglary or trespass, (3) possession of a firearm by a person convicted of a felony, and (4) carrying a concealed weapon. All of the offenses in Borges were committed in a single criminal episode. We held that the legislature, by enacting section 775.021(4), "intended to authorize multiple convictions and separate sentences when two or more separate criminal offenses are violated as part of a single criminal transaction, except for lesser included offenses......
CopyCited 15 times | Published | Florida 5th District Court of Appeal | 2007 WL 485988
...State,
780 So.2d 17, 19 (Fla.2001) (quoting M.P. v. State,
682 So.2d 79, 81 (Fla.1996)). *958 Section
800.04 contains no clear statement of legislative intent. See State v. Paul,
934 So.2d 1167, 1172 (Fla.2006). Thus, we employ the two-part Blockburger [2] test, codified at section
775.021(4)(a), Florida Statutes, to determine whether separate offenses exist....
...if each offense does not contain at least one element distinct from the other offenses. The second part provides that even if each of the offenses has an element that the other does not, the court must determine if any of the exceptions set forth in section
775.021(4)(b) applies and precludes separate convictions and sentences. Gordon,
780 So.2d at 19-20; see §
775.021(4)(a), Fla....
...ndant paused, reflected, and formed a new criminal intent each time he touched alleged victim during the sexual encounter). Further, in order for multiple convictions to be permitted under subsections (4)(a) and (6)(a) of section
800.04, pursuant to section
775.021(4)(a), i.e., the "same elements" *960 test, each offense is considered 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." §
775.021(4)(a), Fla....
CopyCited 15 times | Published | Supreme Court of Florida
...On appeal, the cross-petitioner argued, inter alia, that the trial judge's imposition of separate sentences for each offense when both offenses arose out of a single transaction constituted error. The District Court rejected cross-petitioner's argument, holding that Section 775.021(4), Florida Statutes (Supp. 1976), which permits a separate sentence to be imposed for each criminal offense arising from a single act or transaction, was controlling and the imposition of the two sentences was not error. The basis of the District Court's holding that Section 775.021(4), Florida Statutes (Supp....
...1976), applied was the court's belief that the statute became effective on October 1, 1975, and, thus, was the applicable law when the cross-petitioner committed the offenses charged on November 3, 1975. An examination of Ch. 76-66, § 2, Laws of Florida, reveals that the effective date of Section 775.021(4), Florida Statutes (Supp. 1976), is October 1, 1976. Also, both the 1976 supplement to the Florida Statutes (1975) and the 1977 supplement to Florida Statutes Annotated recite the effective date of Section 775.021(4), Florida Statutes (Supp. 1976), as being October 1, 1976. Therefore, it is apparent, and this fact is conceded by cross-respondent in its brief, that the District Court was wrong in ruling that Section 775.021(4), Florida Statutes (Supp....
...he decisions in Montgomery v. State, supra, and Jackson v. State, supra, which held that upon the conviction of two or more offenses arising out of the same transaction, an individual could only be sentenced for the higher of such offenses. Although Section 775.021(4), Florida Statutes (Supp....
CopyCited 14 times | Published | Florida 2nd District Court of Appeal | 2005 WL 2372723
prior conviction, which he does not have. See §
775.21(4). At the plea hearing, the trial court discussed
CopyCited 14 times | Published | Florida 5th District Court of Appeal | 2003 WL 22213294
...2)(a)1., Florida Statutes (2002), for possession of a firearm during the commission of the underlying offense. We conclude that an ambiguity in that statute requires that we resolve this issue in Appellant's favor under lenity principles embodied in section 775.021(1), Florida Statutes (2002)....
...ar minimum would apply to "actual possession," and a three-year minimum would apply to either "actual" or constructive possession, an obvious contradiction. We conclude, therefore, that an ambiguity exists that must be resolved in Appellant's favor. § 775.021, Fla....
CopyCited 14 times | Published | Florida 4th District Court of Appeal | 2004 WL 2451643
...Here, appellant was charged with violating a domestic violence injunction pursuant to section
741.31, Florida Statutes (2000); however, the difference between the statutes for double jeopardy analysis is insubstantial. Under both statutes, the injunction is violated by simple battery. Section
775.021(4), Florida Statutes (2000), incorporates the Blockburger [1] test for determining whether the legislature intended that a court can impose multiple punishments for offenses arising from the same criminal episode. Section
775.021(4) provides: (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 f...
CopyCited 14 times | Published | Florida 2nd District Court of Appeal | 2014 WL 1047074, 2014 Fla. App. LEXIS 3971
...The legislative intent may “be explicitly stated in a statute.” M.P. v. State,
682 So.2d 79, 81 (Fla.1996). If there is no explicit legislative intent to allow separate punishments for two crimes arising out of the same criminal transaction, courts must apply the Blockburger 1 test as codified in section
775.021(4), Florida Statutes (2011), to determine whether the legislature intended to allow separate punishments....
...t to allow for convictions under both the credit card statute and the armed robbery statute for an armed robbery of a purse containing a credit card). *1141 There being no explicit statement of intent, we must proceed to a Blockburger analysis under section 775.021(4)....
...ffenses committed in the course of one criminal transaction or episode. Id. The exception that Shelley argues applies in this case is for “[ojffenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.” § 775.021(4)(b)(3)....
CopyCited 14 times | Published | Supreme Court of Florida | 1988 WL 59164
...1982) (where statute establishes maximum probationary sentence of three years, defendant convicted simultaneously of two separate felonies and sentenced to three years probation in each must serve the probationary time concurrently rather than consecutively). Finally, we are unpersuaded by the state's suggestion that section 775.021(4), Florida Statutes (1985), mandates a different result. Although section 775.021(4) directs that a trial judge may order separate sentences to be served concurrently or consecutively, section 775.021(2), Florida Statutes, states that "[t]he provisions of this chapter are applicable to offenses defined by other statutes, unless the code otherwise provides." Here, the Youthful Offender Act expressly directs that its provisions should be applied in lieu of other penalties....
CopyCited 14 times | Published | Florida 4th District Court of Appeal | 1995 WL 1640
...Appellant could properly be convicted of both robbery and battery, regardless of the victim's age. The legislature has clearly set forth its intent to punish a defendant for all criminal offenses which occurred in the course of one criminal transaction or episode. Section 775.021(4)(b), Florida Statutes (1991), provides in pertinent part: (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....
...and sentences for offenses based on one act, subject to certain enumerated exceptions." State v. McCloud,
577 So.2d 939, 940 (Fla. 1991). State v. Smith,
547 So.2d 613 (Fla. 1989), provides a critical analysis of the legislature's intent in amending section
775.021 to reflect the above. The statute was revised to include a specific statement of legislative intent on the question of whether a single act could be the basis for multiple convictions. Smith,
547 So.2d at 615. The supreme court, interpreting section
775.021, concluded the following: (1) ......
...olved. (2) ... Absent a statutory degree crime or a contrary clear and specific statement of legislative intent in the particular criminal offense statutes, all criminal offenses containing unique statutory elements shall be separately punished. (3) Section
775.021(4)(a) should be strictly applied without judicial gloss. (4) ... [T]he statutory element test shall be used for determining whether offenses are the same or separate. Id. at 616 (footnotes omitted). Section
775.021(4)(a), Florida Statutes (1991), specifically provides that, "offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the *276 proof adduced at trial." See also McCloud,
577 So.2d at 941 (for purposes of §
775.021(4), an offense is a lesser included offense only if the greater offense "necessarily" includes the lesser offense); Brown v....
CopyCited 14 times | Published | Florida 4th District Court of Appeal | 1999 WL 17813
...REVERSED AS TO CONVICTION FOR AGGRAVATED BATTERY. STONE, C.J., and STEVENSON, J., concur. NOTES [1] We reject defendant's contentions as to all other issues. [2] See Blockburger v. United States,
284 U.S. 299,
52 S.Ct. 180,
76 L.Ed. 306 (1932). [3] See §
775.021(4)(a), Fla....
CopyCited 14 times | Published | Florida 4th District Court of Appeal
...We are equally cognizant of our recent holding in Haynes v. State,
377 So.2d 771 (Fla. 4th DCA 1979). However, Haynes hinged on a finding of a Brown category four, not an application of the single transaction rule. After the rendering of most of the above cited cases, Florida enacted Section
775.021(4) effective October of 1976 which reads as follows: Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of...
...However, our own Supreme Court very recently decided in White v. State,
377 So.2d 1149 (Fla. 1979) that one convicted of robbery and the display of a firearm during the commission of that same robbery cannot be sentenced for both crimes. The opinion makes no mention whatever of Section
775.021(4), but we have independently determined that the record lodged in our Supreme Court reveals that the robbery in White was committed on December 7, 1974, before the statute was enacted....
...ctivate a Brown category four lesser included offense. [2] Despite this available distinction, the White decision chooses as the premise for its conclusion not a Brown category lesser included offense but two prior cases decided before the advent of Section 775.021(4) which are predicated on the single transaction rule. This troubles us. *1049 Accordingly, deeming the matter to be of great public importance we hereby certify the following questions to the Supreme Court, (1) HAS THE ADVENT OF FLORIDA STATUTE 775.021(4) DONE AWAY WITH THE SINGLE TRANSACTION RULE? (2) IS CATEGORY 4 OF BROWN V....
...ONS AND SENTENCES ARE AFFIRMED. BERANEK and HURLEY, JJ., concur specially with opinion. HURLEY, Judge, specially concurring. I concur in the analysis and decision of the court, but write separately to express the view that (1), with the enactment of Section 775.021(4), Florida Statutes (1977), the single transaction rule is no longer extant in Florida, and (2), the definition of a lesser included offense as set forth in category 4 of Brown v....
...Thus, the court in Simmons properly employed a long-standing rule of statutory construction and crafted the single transaction rule. The legislative landscape was dramatically altered, however, on October 1, 1976 and again with minor revision on August 2, 1977, when the Florida Legislature enacted Section 775.021(4), Florida Statutes (1977), which states: Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively. Section 775.021(4) embodies a deliberate legislative decision to take a fresh course in the field of sentencing....
...rom the question of what punishments the Legislative Branch intended to be imposed. Whelan v. United States, supra,
445 U.S. at 697,
100 S.Ct. at 1441 (Blackmun, J., concurring in the judgment). Turning again to Florida's enactment, it is clear that Section
775.021(4), Florida Statutes (1977), does not alter the traditional discretionary function of the trial court in deciding whether to adjudicate a defendant or, once adjudicated, whether the sentences are to be served concurrently or consecutively....
...However, once the court has determined to adjudicate and sentence, the statute imposes a mandatory requirement *1051 that the defendant "be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode." This is the essence of the legislative mandate. Section 775.021(4) represents the considered judgment of the Florida Legislature to exercise its prerogative in the area of sentencing. It constitutes a renunciation of the single transaction rule, and viewed against the analytical backdrop of Whelan v. United States, supra, it comports with the Double Jeopardy Clause of the Fifth Amendment. II Section 775.021(4) utilizes the phrase "lesser included offenses," a term defined by Brown v....
...ords from one count of an information only to charge what would have been the lesser included offense in a separate count. See e.g., Portee v. State, supra. However, since the defendant in the case at bar was sentenced in accord with Florida Statute 775.021(4), and because he failed to demonstrate that any offense herein is a "lesser included offense" either as alleged or as proved I join in the judgment of the court....
...ately to comment on the complexity which the courts seem compelled to impress upon this area of the law. I frankly admit that Whalen v. United States, supra , and Illinois v. Vitale, supra , do not clear up this area at all for me. It does seem that Section 775.021(4), Florida Statutes (1977), abrogates the "single transaction rule" and replaces it with a rule of "lesser included offenses" as a limitation on cumulative sentencing for different facets of the same crime....
...A defendant who carries a firearm while committing a burglary should not be subject to a sentence for armed burglary and an additional sentence for carrying a concealed firearm depending entirely upon the wording of the information. Frankly, I would prefer that armed burglars keep their guns concealed. Were it not for Section 775.021(4), Florida Statutes (1977), I would hold the defendant was properly convicted and sentenced separately for the crimes of (1) burglary with a dangerous weapon, (2) possession of burglary tools (the tools were not the weapon), and (3)...
CopyCited 14 times | Published | Supreme Court of Florida | 12 Fla. L. Weekly 7
...adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively. 775.021(4), Fla. Stat. (1981). The district court took the view that grand theft was a lesser included offense of robbery, which would exclude it from the operation of section 775.021(4)....
...e contrary.
443 So.2d at 239. This reasoning was erroneous for two reasons. First, the district court erred in emphasizing what the evidence showed "in the instant case." Second, the district court ignored the "clear legislative intent" expressed in section
775.021(4)....
...Hunter,
459 U.S. at 365,
103 S.Ct. at 677. The Florida Legislature has simplified immeasurably the task of Florida courts vis a vis double jeopardy, separate offenses, same offenses, and lesser included offenses by statutorily adopting the Blockburger rule as section
775.021(4), Florida Statutes (1983)....
...The legislature has, in effect, statutorily adopted a double jeopardy clause for single trials which gives defendants greater rights than those afforded by Missouri v. Hunter . If we follow the statute, we will have little, if any, occasion to reach constitutional issues of double jeopardy in the single trial setting. Section 775.021(4) makes it relatively simple to determine whether two offenses are separate, the same, or whether one is a lesser included offense of the other....
...[2] If two offenses contain precisely the same statutory elements, they are the same offense; if the statutory elements of one offense are subsumed within a second offense containing one or more additional statutory elements, then the former is a lesser included offense of the latter and is not a separate offense under section 775.021(4)....
CopyCited 14 times | Published | Supreme Court of Florida | 2008 WL 3926789
sexual predator designation imposed pursuant to section
775.21(5), Florida Statutes (2003), may be raised
CopyCited 13 times | Published | Florida 4th District Court of Appeal | 1998 WL 634782
...3d DCA 1995), receded from on other grounds, Grene v. State,
702 So.2d 510 (Fla. 3d DCA 1996). A defendant may be punished for separate criminal offenses arising out of the same criminal episode where each offense requires proof of an element that the other does not. See §
775.021(4)(a), Fla....
...The Laines court concluded that the defendant's acts could only constitute a violation of the second-degree murder statute where "the defendant killed a single victim with a series of rapid-fire violent acts in a single transaction, all of which contributed to the victim's death." Id. at 1249. Despite the amendment to section 775.021(4), the Laines court reasoned that the legislature did not intend to create a separate offense for every murderous blow that a defendant inflicted upon a deceased in a single incident. Id. at 1249. It further explained: Stated differently, a sentence for aggravated battery in this case is not authorized by Section 775.021(4)(a), Florida Statutes (1993), and is, accordingly, barred by double jeopardy because there was no evidence adduced at trial that the defendant "in the course of one criminal transaction or episode, commit[ted] an act or acts which constitute ... [the] separate criminal offense[]" of aggravated battery. Sec. 775.021(4)(a), Fla....
CopyCited 13 times | Published | Florida 5th District Court of Appeal | 1991 WL 175219
...Thompson appeals from his convictions and sentences for fraudulent sale of a counterfeit controlled substance, [1] and felony petit theft. [2] He argues both charges arose out of the same acts, and that this double conviction should be barred by section *493 775.021(4)(a) and (b), Fla....
...e highest courts of the state and nation. The Florida Legislature has announced its intent that there should be separate and multiple convictions for each statutory offense that is committed during the course of a criminal transaction or episode. In section 775.021(4)(b) the Legislature set out basically only two exceptions to this policy....
...Fraudulent sale requires a completed sale of a particular item (counterfeit contraband). Felony petit theft requires proof of prior petit thefts, and the wrongful obtaining of property worth less than $300. Thus, as in the sale and possession of the same bits of rock cocaine, Blockburger or section 775.021(4)(a) and (b) do not bar multiple convictions in the same prosecution....
...In this case there was one fraudulent sale prosecuted under the fact-specific statute. The general statutory offense (felony petit theft) may have been superseded by passage of the specific statute, for this fact situation, although this issue is not before us. [9] However, we hold section 775.021(4)(b) bars concurrent prosecution for the general theft crime together with the specific crime....
CopyCited 13 times | Published | Florida 5th District Court of Appeal | 1995 WL 680446
...n, or is armed or arms himself. Thus the battery element of a first degree burglary crime can be viewed either as an enhancement factor of that crime, necessarily included in it, or as a species of a degree of the same crime of burglary. Pursuant to section 775.021(4)(b), the Florida Legislature has expressly stated its intent not to impose multiple punishments for: (1) offenses which require identical elements of proof....
...In addition, the Florida Supreme Court has not yet applied Florida's double jeopardy provision to bar multiple convictions in the context of a single prosecution. See Smith,
547 So.2d at 613. At this point, these kinds of issues are resolved by applying section
775.021, and other applicable statutes, to determine what the Legislature intended....
CopyCited 13 times | Published | Florida 2nd District Court of Appeal | 1998 WL 279232
that designated him a sexual predator under section
775.21-.23, Florida Statutes (1993). We affirm. This
CopyCited 13 times | Published | Florida 5th District Court of Appeal | 2003 WL 21294060
qualify for sentencing as a sexual predator under section
775.21, Florida Statutes (1999), and that it was error
CopyCited 13 times | Published | Florida 2nd District Court of Appeal | 2004 WL 351149
...quires proof of a fact which the other does not. Missouri v. Hunter,
459 U.S. at 366,
103 S.Ct. 673. "Absent a clear statement of legislative intent to authorize separate punishments for two crimes, courts employ the Blockburger test, as codified in section
775.021, Florida Statutes (1997), to determine whether separate offenses exist." Gordon v....
...similar argument, Gordon highlights the principle that convictions for both premeditated murder and felony murder are impermissible when only one death occurred. See Goss v. State,
398 So.2d 998, 999 (Fla. 5th DCA 1981). We have held repeatedly that section
775.021 did not abrogate our previous pronouncements concerning punishments for singular homicides....
CopyCited 13 times | Published | Florida 5th District Court of Appeal | 1994 WL 41838
...efendant and the statute is ambiguous and susceptible of two interpretations, one to the detriment of the defendant and one to the benefit of the defendant, the court is required to use the interpretation that is to the benefit of the defendant. See § 775.021(1), Fla....
CopyCited 13 times | Published | Florida 1st District Court of Appeal
...punishments for different offenses arising out of the same criminal
transaction as long as the Legislature intends to authorize
separate punishments.” Id. at 854. And to determine whether the
Legislature authorized separate punishments for robbery and
theft, it looked to section 775.021, which provides that “[t]he intent
of the Legislature is to convict and sentence for each criminal
offense committed in the course of one criminal episode or
transaction.” § 775.021(4)(b), Fla. Stat. The Legislature provided
three “[e]xceptions to this rule of construction,” one of which Sims
contends is applicable here: “Offenses which are lesser offenses the
statutory elements of which are subsumed by the greater offense.”
Id. § 775.021(4)(b)3.
In McKinney, the court rejected the argument that grand theft
and robbery fit in this exception....
CopyCited 13 times | Published | Florida 5th District Court of Appeal | 2001 WL 929927
the Florida Sexual Predators Act (the Act), section
775.21, Florida Statutes (2000). Kelly appeals his
CopyCited 12 times | Published | Florida 1st District Court of Appeal | 2009 Fla. App. LEXIS 14398, 2009 WL 3047390
...The Fifth Amendment guarantee against double jeopardy protects a defendant from, among other things, multiple punishments for the same offense. See Capron v. State,
948 So.2d 954, 957 (Fla. 5th DCA 2007). Offenses are considered separate if they pass the two-pronged test of section
775.021(4)(a), Florida Statutes (2008). First, each offense must "require[] proof of an element that the other does not." §
775.021(4)(a). Second, even if the charges contain different elements, to be considered separate offenses none of the exceptions contained in section
775.021(4)(b) can apply....
...Furthermore, the definition of material "harmful to a minor" is different, and considerably broader, than the enumerated activities needed for lewd or lascivious exhibition. Since the offenses contain different statutory elements, it must next be determined if any of the exceptions listed in section 775.021(4)(b) apply. Section 775.021(4)(b) lists three exceptions to the rule that offenses containing distinct elements warrant separate punishments....
CopyCited 12 times | Published | Florida 5th District Court of Appeal | 2003 WL 22259423
designated him as a sexual predator pursuant to section
775.21(4)(a). He raises two points on appeal: *1167
CopyCited 12 times | Published | Florida 3rd District Court of Appeal | 1994 Fla. App. LEXIS 9786, 1994 WL 552475
...the marijuana trafficking charge as, without dispute, the conspiracy charge contains different statutory elements than the trafficking charge and is neither a lesser degree offense nor a necessarily included offense under the trafficking charge. § 775.021(4)(a), (b), Fla....
CopyCited 12 times | Published | Supreme Court of Florida | 1996 WL 580315
...While the statutes at issue in the instant case do not contain such a specific legislative statement, the legislature has expressed its intent "to convict and sentence for each criminal offense committed in the course of one criminal episode." See §
775.021(4)(b), Fla. Stat. (1991). Section
775.021(4) is a codification of the Blockburger test, sometimes referred to as the same-elements test, which inquires whether each offense contains an element not contained in the other; if not, they are the same offense and double jeopardy bars subsequent punishment or prosecution. Blockburger v. United States,
284 U.S. 299, 304,
52 S.Ct. 180, 182,
76 L.Ed. 306 (1932). As this Court explained in State v. Johnson,
676 So.2d 408 (Fla.1996), in applying section
775.021(4) to a single criminal transaction or episode, we look to see whether the episode constitutes more than one separate criminal offense....
CopyCited 12 times | Published | Florida 3rd District Court of Appeal | 1995 WL 353512
...Stat.] and aggravated battery [§
784.045(1)(a), (2), Fla. Stat.] the two offenses for which the defendant was sentenced below each requires proof of an element that the other does not [2] and, accordingly, there is no double jeopardy bar under Section
775.021(4)(a), Florida Statutes (1993), as interpreted in State v. Smith,
547 So.2d 613 (Fla. 1989), to convicting and sentencing a defendant who "in the course of one criminal transaction or episode, commits an act or acts which constitute," §
775.021(4)(a), Fla....
...e, as it is clear that the defendant killed a single victim with a series of rapid-fire violent acts in a single transaction, all of which contributed to the victim's death. Because no one of these acts can be characterized as an aggravated battery, Section 775.021(4), Florida Statutes (1993), does not authorize a separate sentence for such an offense....
...t the legislature did not intend to punish a single [criminal] homicide under two different statutes." Houser v. State,
474 So.2d 1193, 1197 (Fla. 1985) (emphasis added). This result is still good law notwithstanding the subsequent 1988 amendment to Section
775.021(4), Florida Statutes (1993)....
...r one statute namely, the second-degree murder statute; the defendant's sentence under the aggravated battery statute therefore cannot stand. Houser; Chapman. Stated differently, a sentence for aggravated battery in this case is not authorized by Section 775.021(4)(a), Florida Statutes (1993), and is, accordingly, barred by double jeopardy because there was no evidence adduced at trial that the defendant "in the course of one criminal transaction or episode, commit[ted] an act or acts which constitute ... [the] separate criminal offense[]" of aggravated battery. § 775.021(4)(a), Fla....
...* * * * * * Q: Doctor Rao, you testified that there was a series of blunt trauma wounds to the head, is that correct? A: That's correct. Q: Would these blunt trauma wounds in and of themselves be sufficient to cause death? A: No. (Tr. 197-202). Under subsection 775.021(4)(a), Florida Statutes (1991) "[w]hoever, 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......
...Second degree murder requires proof of death and aggravated battery requires proof of specific *1252 intent to cause great bodily harm, permanent disability or permanent disfigurement. In State v. Smith,
547 So.2d 613 (Fla. 1989) the Florida Supreme Court reviewed the 1988 legislative amendment of subsection
775.021(4), Florida Statutes, in response to the court's decision in Carawan v....
...two different statutes and concluded that a rule of lenity controlled and prohibited multiple punishments for two offenses, predicated on a single underlying act, even if each contained a unique statutory element and were separate offenses under subsection
775.021(4). In the session immediately following the issuance of Carawan, the legislature responded to the decision by amending subsection
775.021(4)(a). Smith,
547 So.2d at 615. The amendment contained a statement of legislative intent that made it abundantly clear that the legislature did not agree with the court's interpretation of subsection
775.021(4)(a) [1] as set out in Carawan. Smith laid out the specific areas of disagreement: (1) The legislature rejects the distinction drawn between act or acts. Multiple punishment shall be imposed for separate offenses even if only one act is involved. (2) ... Subsection
775.021(4)(a) is the specific, clear and precise statement of legislative intent referred to in Carawan as the controlling polestar....
...tes, all criminal offenses containing unique statutory elements shall be separately punished. (3) The subsection should be strictly applied without judicial gloss. (4) By listing the three instances when multiple punishments shall not be imposed, subsection 775.021(4)(a) eliminates the need to assume that the legislature does not intend multiple punishment for the same offense....
...ous. Carawan v. State,
515 So.2d 161, 165 (Fla. 1987); Holly v. Auld,
450 So.2d 217, 219 (Fla. 1984); Reino v. State,
352 So.2d 853, 860 (Fla. 1977); Rinker Materials Corp. v. North Miami,
286 So.2d 552, 554 (Fla. 1973). The legislature stated in subsection
775.021(4) that the statutory test shall be the means for determining whether offenses are same or separate, regardless of the proof adduced at trial....
...The proof adduced at the trial in this cause showed that the gunshot to the abdomen was the fatal injury and the head trauma was only incidental. While we may not like the outcome, this is the result we are compelled to reach under State v. Smith and subsection 775.021(4)(a)....
...Laines has been adjudicated guilty of one death by a count for second degree murder. He has been adjudicated guilty of the non-fatal head lacerations by a count for aggravated battery. I believe that the extremely clear statement by the legislature in subsection 775.021(4)(a), as explained by the Florida Supreme Court in Smith, requires that we affirm the separate convictions and sentences in this case....
CopyCited 12 times | Published | Court of Appeals for the Eleventh Circuit | 1988 U.S. App. LEXIS 14858, 1988 WL 106040
...in section
777.04(4)(b), petitioner ought to have been fully aware that his solicitation was criminal 1 . We conclude that petitioner was not denied due process. Next petitioner contends that he should have been afforded the protection of Fla. Stat. §
775.021 (1) (1981). Under that section, Florida provides that criminal statutes are to be construed in favor of the accused. Petitioner argues that since the statute might be read as vague, section
775.021(1) entitles him to have the statute read and voided as too vague....
CopyCited 12 times | Published | Florida 2nd District Court of Appeal | 2003 WL 2002765
the Florida Sexual Predators Act (the Act), section
775.21, Florida Statutes (2000). He argues that the
CopyCited 12 times | Published | Florida 5th District Court of Appeal
...1st DCA 1980), where the appellant argued that he could not be simultaneously convicted and sentenced of possession of a short-barreled shotgun and possession of a firearm by a previously convicted felon, it was held that neither offense could be considered as lesser included in the other for the purposes of section 775.021(4), since on each count the State was required to allege and prove an element not necessary for the conviction of the other count: in respect to the first count, that the shotgun was short-barreled, and in respect to the second count, that appellant was a convicted felon....
...The crimes are not the same and there is no error on this point. Appellant having failed to demonstrate error, the judgment and sentence are AFFIRMED. COBB and SHARP, JJ., concur. NOTES [1] §
806.13, Fla. Stat. (1979). [2] §
790.19, Fla. Stat. (1979). [3] §
775.021(4), Fla....
CopyCited 12 times | Published | Florida 5th District Court of Appeal
...Further recitation of the sordid facts would serve no purpose in consideration of the merits of this appeal. Appellant contends that the activity occurring while defendant was driving and after coming to a stop occurred during one continuous course of events. He contends that Section 775.021, Florida Statutes (1979) [1] requires there to be a violation of two separate statutes before he can be held guilty of separate offenses....
...ding movement or confinement that is inconsequential or inherent in the nature of the felony. In the case before us, the abduction was neither inconsequential nor inherent in either sexual battery. AFFIRMED. ORFINGER and COBB, JJ., concur. NOTES [1] § 775.021(4) Florida Statutes....
CopyCited 12 times | Published | Florida 5th District Court of Appeal | 2000 WL 707177
...See Crawford,
662 So.2d at 1017. The defendant appealed his convictions arguing that he was improperly convicted of both crimes because only one battery was committed. Upon review, a panel of this court agreed, concluding that pursuant to paragraph
775.021(4)(b) of the Florida Statutes (1993), it was improper to convict the defendant on both charges....
...We now, upon en banc consideration, recede from Crawford based upon our conclusion that there is no statutory or constitutional bar to the entry of convictions for both aggravated battery and burglary with a battery arising out of the same criminal episode. [3] Section
775.021(4)(b), Florida Statutes (1997), states that it is the intent of the Legislature to convict and sentence a defendant for each offense he commits during the course of a single criminal episode. Thus, the Legislature clearly intended to separately punish burglary as enhanced and battery as enhanced. See §§
810.02(1), (2)(a),
784.045(1)(a), Fla. Stat. *420 (1997). That does not end our inquiry, however. Section
775.021(4)(b) lists three exceptions to this rule of construction under which the offenses at issue must be tested....
...The statute prohibits convictions for both offenses if the offenses 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. See § 775.021(4)(b)1.,2.,3., Fla....
...3d DCA 1999), directly holds, that when a general verdict makes it impossible for the court to determine which of two options the jury determined to exist, the court must construe the verdict as finding the option most favorable to the defendant. This is consistent with the policy behind section 775.021(11), Florida Statutes....
...Further, while I agree with the majority that we should reconsider Crawford, I would uphold Crawford because I believe it correctly states the law and would hold that a conviction of aggravated battery and burglary with a battery would constitute double jeopardy. In Crawford, this court held that it was a violation of section 775.021(4)(b), Florida Statutes, to convict both for burglary with a battery and for aggravated battery arising out of the same criminal episode when the aggravated battery was in fact the battery relied on for the greater charge....
...h a battery, a first degree felony punishable by life in prison. What it cannot do under Blockburger, I submit, is to punish the same battery as part of an aggravated battery conviction and again as an enhancement of burglary conviction. By enacting section 775.021(4)(b), the legislature has made it clear that although it wants every truly separate offense committed by the defendant during any criminal episode to be punished, it does not want to impose multiple punishments for the same offense...
...separate independent offense. In that event the primary substantive offense (i.e., burglary) has encompassed, and thereby subsumed, the constituent offense (i.e., battery, whatever its degree) as one of its elements. It is clear from the language of section 775.021(4)(b), Florida's "Blockburger statute," [1] that it does not authorize successive punishments for necessarily lesser included offenses....
...Indeed, I do not believe we have jurisdiction to do so. [2] *427 I would affirm the result reached by the trial judge. W. SHARP, J., dissenting. For the reasons expressed in Crawford v. State,
662 So.2d 1016 (Fla. 5th DCA 1995), I respectfully dissent. Section
775.021(4)(b) bars convictions/punishments for offenses which require identical elements of proof, and offenses which are degrees of the same offense as provided by statute....
...But battery is a lesser included offense, and hence is subsumed in the greater offense. [2] If it is the same battery, it should not be available to serve as the basis for an additional conviction under the Blockburger test, which I think the legislature intended to incorporate in section 775.021(4)(2)....
...Of course, a finding that Mr. Reardon committed the burglary while armed would neither trigger Crawford concerns nor raise the specter of double jeopardy because both aggravated battery and armed burglary obviously contain elements not common to the other. See § 775.021(4), Fla....
...if the crime charged incorporates by reference other offenses, then all such incorporated offenses become "elements" of the greater offense and a conviction of the greater offense bars further prosecution of the incorporated offenses. The purpose of section 775.021(4)(b)3 seems to be to adopt this concept....
...a weapon or committed a batteryor both. There is no basis in the record to suggest that the jury found neither element; they said that they found one or the other or both, and that finding has not been challenged on appeal by either party. [1] See § 775.021(4); Duhart v....
CopyCited 12 times | Published | Supreme Court of Florida | 2003 WL 252117
...the person or custody of another, with the intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear. Section 775.021(4)(b), Florida Statutes (1997), entitled "Rules of construction," expressly states: 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...
...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. Because the respondent's convictions for false imprisonment and robbery do not meet the exceptions listed in section 775.021(4)(b), the convictions are separate criminal offenses committed in the course of one criminal episode....
...Moreover, even if there were elements of factual proof common to two or more of the crimes, it is not clear that this would entitle respondents to the relief they seek since the matter of what statutory crimes were committed by the respondents' acts is purely one of legislative intent. See 775.021(4), Fla....
...defendants from multiple convictions and punishments for the same offense." Gordon v. State,
780 So.2d 17, 19 (Fla.2001). Application of the test announced in Blockburger v. United States,
284 U.S. 299,
52 S.Ct. 180,
76 L.Ed. 306 (1932), codified in section
775.021, reveals that the Double Jeopardy Clause is not violated because the statutory elements of false imprisonment are different from the elements of robbery....
CopyCited 12 times | Published | Supreme Court of Florida | 1994 WL 26997
...Const. Based on our opinion in Sirmons v. State,
634 So.2d 153 (Fla. 1994), we find that the two offenses at issue here are aggravated forms of a single underlying offense distinguished only by degree factors. Multiple punishments thus are not allowed. Section
775.021(4)(b)2., Fla....
CopyCited 12 times | Published | Florida 2nd District Court of Appeal
...Appellant gave the marijuana to the driver and after it was inspected, one of the undercover agents paid appellant $20.00. *315 To determine whether the trial court violated the single transaction rule when it imposed separate sentences for each offense, we look to section 775.021(4), Florida Statutes (1977), which provides: Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, s...
...o crimes committed in a single transaction and each of the crimes is a facet of the same transaction, it has been held repeatedly that sentence should be imposed for only one of the crimes, being that of the highest offense charged. The enactment of section 775.021(4) substantially limited the application of the common law single transaction rule....
...possession and sale of a single marijuana cigarette. A single judgment was entered by the trial judge and appellant was sentenced to one year in prison. The judgment did not provide whether the sentence was for one or both convictions. We held that section 775.021(4) required a separate judgment and sentence to be imposed for each offense....
...1st DCA 1979), and Drayton v. State,
372 So.2d 983 (Fla.3d DCA 1979). While those cases would at first appear to support his position, we are convinced that they involve an application of the single transaction rule as it existed prior to the enactment of section
775.021(4). In the Drayton case the defendant was charged in separate counts with the sale and possession of cocaine. He was found guilty on each count and sentenced to two separate five-year terms of imprisonment. The court, without reference to section
775.021(4), held that the two convictions would not support separate sentences. The three cases cited in support of this holding were all decided before the enactment of Section
775.021(4). In Williams v. State the defendant sold marijuana to a police informant. He was convicted for both the sale and the possession of the marijuana and sentenced to five years in prison for each offense. The court, also without reference to section
775.021(4), held that Williams should have only been sentenced for the sale of the marijuana....
...The Jackson decision was unquestionably grounded upon the pre-1977 common law version of the single transaction rule. Because we believe that the cases cited by the appellant in support of his position do not involve an application of the current single transaction rule, we decline to follow them. Rather, we hold that section 775.021(4) requires that separate sentences be imposed where a defendant is convicted of both the sale and possession of marijuana, unless the possession is a lesser included offense of the sale....
CopyCited 12 times | Published | Florida 2nd District Court of Appeal | 2003 WL 1785916
declared Gunn to be a sexual predator pursuant to section
775.21, Florida Statutes (1999). The standard of review
CopyCited 12 times | Published | Florida 5th District Court of Appeal | 1989 WL 41186
...titution does no more than prevent the sentencing court (in one trial setting) from prescribing greater punishment than the state legislature intended. Missouri v. Hunter, supra,
459 U.S. at 366,
103 S.Ct. at 678. That intent is clearly set forth in section
775.021(4)(b), Florida Statutes (Supp....
...(18 Wall.) 163, 173,
21 L.Ed.2d 872 (1873). See Carawan, at 163, 164. Despite this language, Carawan was not decided on an interpretation of the Florida Constitution, but rather on the basis of the Florida Supreme's Court's statutory construction of sections
775.021(1) and (4), Florida Statutes (1985). In its analysis the court employed the "rule of lenity." The lenity analysis has been specifically repudiated by the Florida Legislature with the enactment of section 7, Chapter 88-131, Laws of Florida, now codified as section
775.021(4)(b), Florida Statutes (Supp....
...AFFIRMED in part; REVERSED in part; REMANDED. DANIEL, J., concurs. SHARP, C.J., concurs specially with opinion. SHARP, Chief Judge, concurring specially. While I agree with most of the majority opinion, I would stop with the Blockburger test as spelled out by section 775.021(1) and *803 (4)....
...tions in contrast with the United States Supreme Court's interpretation of the Fifth Amendment in Missouri v. Hunter,
459 U.S. 359,
103 S.Ct. 673,
74 L.Ed.2d 535 (1983). Whether some lenity doctrine broader than the Blockburger test as adopted by section
775.021(1) and (4) may bar multiple prosecutions for two criminal offenses (as defined by Blockburger ) in a single trial remains to be seen....
CopyCited 12 times | Published | Florida 4th District Court of Appeal | 1992 WL 63110
...4th DCA 1976); Haupt v. State,
499 So.2d 16 (Fla. 2d DCA 1986); Duff v. Southern Bell Tel. & Tel. Co.,
386 So.2d 253 (Fla. 5th DCA 1980); Chance v. State,
382 So.2d 801 (Fla. 1st DCA 1980). The state also argues that the amendment of Florida Statute Section
775.021(4) modified the applicable law....
CopyCited 11 times | Published | Supreme Court of Florida | 12 Fla. L. Weekly 454
...Thus, in Carawan we recognized that "[i]t would be absurd indeed to apply Blockburger ... in a way that actually defeats what reason and logic dictate to be the intent."
515 So.2d at 167. Where there is any reasonable basis for concluding that multiple punishments were not intended, the rule of lenity in section
775.021(1), Florida Statutes (1983), [3] forbids the courts from presuming that multiple punishments are authorized....
...We distinguish "act" from "transaction," the latter being a series of related acts. Our decisions here and in Carawan are limited exclusively to multiple punishments arising from a single act. [2] Blockburger v. United States,
284 U.S. 299,
52 S.Ct. 180,
76 L.Ed. 306 (1932). The Blockburger rule has been codified in section
775.021(4), Florida Statutes (1983). [3] Section
775.021(1) provides: The provisions of this [criminal] 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....
CopyCited 11 times | Published | Supreme Court of Florida | 2001 WL 1839147
...found beyond a reasonable doubt that Minas withdrew consent for Jimenez to remain in her home when he brutally beat and stabbed her numerous times. Id. In Delgado v. State,
776 So.2d 233, 240 (Fla.2000), this Court receded from Jimenez and held: In section
775.021(1), Florida Statutes (1997), the Legislature mandated that courts use the following rule of construction: The provisions of this [criminal] code and offenses defined by other statutes shall be strictly construed; when the language is...
CopyCited 11 times | Published | Florida 4th District Court of Appeal | 2003 WL 22082192
Enforcement for the duration of his or her life. §
775.21(6), Fla. Stat. (2001). With respect to procedural
CopyCited 11 times | Published | Florida 3rd District Court of Appeal | 2010 Fla. App. LEXIS 16541, 2010 WL 4259815
...ple convictions are prohibited. Blockburger v. U.S.,
284 U.S. 299,
52 S.Ct. 180,
76 L.Ed. 306 (1932); Carawan v. State,
515 So.2d 161, 165 (Fla.1987); Houser v. State,
474 So.2d 1193, 1196 (Fla.1985). The Legislature codified the Blockburger test in section
775.021(4), Florida Statutes (1983), and amended it in 1988, to add subsection (b) which states: (b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transac...
...hicle arising from a singular shooting incident that did not result in death. Thus, the Valdes court did not determine the double jeopardy consequences of dual homicide convictions arising from a single death. Moreover, after the Legislature amended section 775.021(4), the Florida Supreme Court did not overrule Houser....
CopyCited 11 times | Published | Supreme Court of Florida | 1994 WL 81776
...ommission of a felony, to wit: attempted first-degree murder, when he also received an enhanced sentence for carrying a firearm during the commission of a robbery where both crimes took place during the same criminal episode. Id. The court held that section 775.021(4)(a), Florida Statutes (1991), prohibited looking at the charging document to determine that the "felony" element of use of a firearm in the commission of a felony was attempted premeditated murder and not armed robbery or any other *1061 felony....
...Had the attempted murder been committed at a distinct separate time or place, then Brown could have been convicted of both attempted murder and the use of the firearm because the attempted murder was not enhanced by the use of the firearm. NOTES [1] Section 775.021(4)(a), Florida Statutes (1991), says in relevant part: [O]ffenses 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....
CopyCited 11 times | Published | Florida 4th District Court of Appeal | 1996 WL 332908
...Tringali, Assistant Attorney General, West Palm Beach, for appellee. GUNTHER, Chief Judge. We reverse and vacate appellant's conviction of and sentence for burglary. All of the elements of burglary are included in the offense of home invasion robbery, of which appellant was also convicted. See § 775.021(4)(b)1 Fla....
CopyCited 11 times | Published | Florida 1st District Court of Appeal | 1991 WL 10381
...ving the scene of an accident, and 2) in denial of his motion for judgment of acquittal as to the vehicular homicide charge. We affirm all three convictions and the sentences for vehicular homicide and driving without a license. However, pursuant to section 775.021(4), Florida Statutes (1988), we vacate the sentence for leaving the scene of an accident....
...lined to "burden" the trial court with such a proceeding as "the result ... inevitably must be to vacate the sentence... ." In 1988 the legislature responded to the supreme court's decision in Carawan v. State,
515 So.2d 161 (Fla. 1987), by amending section
775.021(4), Florida Statutes, to disavow the principle of lenity and express the legislative intent to convict and sentence for each criminal offense predicated upon each act or acts committed within any criminal transaction....
...[1] The state argues that multiple sentences are permissible because the two statutes contain distinct elements, as section
782.071(2) requires a predicate vehicular homicide, whereas section
316.027 does not. But this does not end the necessary inquiry in this case, for while the offenses thus do not qualify for the section
775.021(4)(b)1 "identical elements" exception from multiple sentencing, they may still qualify for the (b)3 exception for offenses "which are lesser offenses the statutory elements of which are subsumed by the greater offense." As in Donovan,...
CopyCited 11 times | Published | Florida 1st District Court of Appeal | 1994 WL 47131
...hat once Parker had completed the offenses of sexual battery, kidnapping, and burglary inside the home and removed himself from the house, he then formed a separate and distinct intent to commit *74 arson and attempted murder. The state points to subsection 775.021(4), Florida Statutes (Supp....
...Parker counters that the state has confused the concepts of different criminal acts for purposes of a double jeopardy analysis and separate criminal acts for purposes of a Daniels/Palmer analysis. We agree with Parker that the supreme court in Daniels and Palmer expressly rejected the state's argument that subsection 775.021(4) controls....
...te incidents occurring at separate times and places." Id. at 4. Recently, in Daniels, the supreme court had occasion to answer a certified question on a related issue, which it reworded to ask whether a trial court has "the discretion under sections
775.021(4) and
775.084, Florida Statutes (1988), to impose consecutive fifteen-year minimum mandatory sentences for first-degree felonies committed by an habitual violent felony offender arising from a single criminal episode[.]"
595 So.2d at 953....
...1990), as well as by focusing on whether there was a single victim or multiple victims, e.g., Woods. Palmer indicates that when making this determination, whether separate sentences *76 may be imposed for separate offenses occurring in the same criminal transaction or episode under subsection 775.021(4) is neither controlling nor relevant....
...For the same reasons that we distinguish the rule in Daniels and Palmer from the circumstances herein, we hold that neither Brooks nor Hale mandates reversal. [2] In Daniels, the supreme court held: We cannot accept the State's contention that consecutive minimum mandatories are required because of the provisions of section 775.021, Florida Statutes (Supp. 1988). In the first place, our opinion in Palmer rejected the contention that section 775.021(4), Florida Statutes (1981), which was worded substantially the same as section 775.021(4)(a), Florida Statutes (Supp. 1988), permitted the stacking of consecutive minimum mandatory sentences. The subsequent addition of subsection (b) to section 775.021(4) [footnote omitted] was designed to overrule this Court's decision in Carawan v....
CopyCited 10 times | Published | Florida 4th District Court of Appeal | 1994 WL 539190
...sentence imposing a consecutive mandatory minimum term to be unlawful, the circumstances here are particularly compelling for a *96 second review. See Smith v. State,
487 So.2d 1088 (Fla. 5th DCA 1986). We start with the proposition that pursuant to section
775.021(4), Florida Statutes (1989), a trial court has discretion to impose separate sentences, either concurrently or consecutively, for each separate criminal offense arising out of a single criminal transaction or episode....
...We next consider the limitation on a trial court's authority to impose consecutive three year mandatory minimums for crimes involving use of a firearm. The supreme court, first discussing this issue in Palmer v. State,
438 So.2d 1 (Fla. 1983), declined to read section
775.021(4) in pari materia with section
775.087(2) [4] and thus, refused to construe section
775.021(4) as providing unlimited authority to impose consecutive mandatory minimums for multiple crimes within one criminal episode. While the supreme court upheld the thirteen consecutive sentences for thirteen separate armed robberies resulting in a 975 year term pursuant to section
775.021(4), it rejected the stacking of consecutive mandatory minimums for each of the thirteen robbery counts, totalling thirty-nine years, where the robberies had taken place in the same manner and at one time and place....
...Codefendant Rahming filed a second appeal after resentencing, raising for the first time the legality of the consecutive mandatory minimums. This court issued its opinion in Rahming v. State,
616 So.2d 1232 (Fla. 4th DCA 1993), subsequent to defendant's first appeal. [3] Section
775.021(4), Fla....
CopyCited 10 times | Published | Florida 4th District Court of Appeal | 2001 WL 1202791
...[2] The courts may have been concerned in Wallace, Vasquez and Gresham that allowing separate convictions could theoretically result in a defendant being separately convicted for each punch or kick. Separate convictions can, of course, result in consecutive sentences, see section 775.021, Florida Statutes, and therefore disparate punishment depending on whether a brawl was continuous or included brief intermissions.
CopyCited 10 times | Published | Supreme Court of Florida
...State the First District Court of Appeal also found error in convicting a person for both the sale and the possession of the same substance. Conversely, the Second District Court of Appeal in Fundak v. State,
362 So.2d 295 (Fla. 2d DCA 1978), citing section
775.021, Florida Statutes (1977), ruled that it is proper to impose sentences for both possession and sale. [1] Neither the first district nor the third district has cited this section in their opinions. In Borges v. State,
415 So.2d 1265 (Fla. 1982), this Court held that the enactment of subsection
775.021(4) [2] is controlling and that when two statutory violations occur during a single episode it is proper to impose sentence separately for each violation unless one was a lesser included offense of the other....
...Accordingly, we approve the instant decision and disapprove Drayton and Williams. [5] It is so ordered. ALDERMAN, C.J., and ADKINS, BOYD, OVERTON and EHRLICH, JJ., concur. NOTES [1] Fundak was the authority for the holding in the instant case. [2] § 775.021(4) reads as follows: Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately...
CopyCited 10 times | Published | Florida 4th District Court of Appeal | 2005 WL 715733
...scontinuing the attack. He was convicted of both sexual battery and attempted sexual battery. We concluded that because attempted sexual battery is a lesser included offense of sexual battery, the defendant could not be convicted of both pursuant to section 775.021(4)(b), Florida Statutes, when the acts occurred during the same criminal episode....
CopyCited 10 times | Published | Florida 4th District Court of Appeal | 1996 WL 332345
...We agree with the state and recede from anything in Jackson and Lundy to the contrary. Under Blockburger [2] analysis, it is constitutional for the state to prosecute offenses separately even though they arise from a single transaction or episode. State v. Smith,
547 So.2d 613 (Fla.1989); section
775.021(4), Florida Statutes (1995)....
...The district court's opinion reasoned: "The Florida Legislature has announced its intent that there should be separate and multiple convictions for each statutory offense that is committed during the course of a criminal transaction or episode. In section 775.021(4)(b) the Legislature set out basically only two exceptions to this policy....
...Fraudulent sale requires a completed sale of a particular item (counterfeit contraband). Felony petit theft requires proof of prior petit thefts, and the wrongful obtaining of property worth less than $300. Thus, as in the sale and possession of the same bits of rock cocaine, Blockburger or section 775.021(4)(a) and (b) do not bar multiple convictions in the same prosecution....
...In this case there was one fraudulent sale prosecuted under the fact-specific statute. The general statutory offense (felony petit theft) may have been superseded by passage of the specific statute, for this fact situation, although this issue is not before us. However, we hold section 775.021(4)(b) bars concurrent prosecution for the general theft crime together with the specific crime....
...In sum, both offenses are aggravated forms of the same underlying offense distinguished only by degree factors. Thus, Sirmons' dual convictions based on the same core offense cannot stand."
634 So.2d at 154. The supreme court has confronted double jeopardy claims in connection with the drug laws since the legislature amended section
775.021(4) in response to the court's Carawan decision. [3] The leading case is State v. McCloud,
577 So.2d 939 (Fla.1991), where the dual convictions involved sale of cocaine and possession (or possession with intent to sell) of cocaine. In finding no double jeopardy violation, the court said: "Section
775.021(4)(b) of the Florida Statutes (Supp.1988) currently permits dual convictions and sentences for offenses based on one act, subject to certain enumerated exceptions. McCloud asserts that possession and sale of the same quantum of cocaine is an exception under the category of "subsumed" elements in subsection
775.021(4)(b)(3)....
...In other words, McCloud argues that he cannot be convicted of possession of cocaine and sale of the same cocaine because possession is a lesser-included offense of sale. " The state argues that possession is not a lesser-included offense of sale because under section 775.021(4) (codifying the test established in Blockburger v....
...it reversed the possession conviction but affirmed the sale conviction. Cf. State v. Daophin,
533 So.2d 761 (Fla.1988) (holding that possession is not a lesser-included offense of delivery). " An offense is a lesser-included offense for purposes of section
775.021(4) only if the greater offense necessarily includes the lesser offense....
...ug convictions and punishments. As the court did in the cases discussed, we look to the legislative expression of intent to determine whether crimes are separate, on the one hand, or essentially degrees or lesser included offenses of a single crime. Section 775.021(4)(b) provides: "(4)(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 separ...
...Although, as the majority opinion correctly recognizes, the possession in this case does violate two separate and distinct statutes, I would apply the reasoning used by Justice Kogan in his concurring opinion in Sirmons, to conclude that the legislature intended to apply the statutory exceptions in section 775.021(4) to permissive lesser included offenses; here to simple possession, as a permissive lesser of trafficking (by possession)....
...If "the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not." Ibid. Rutledge v. United States, ___ U.S. at ___,
116 S.Ct. at 1245. Section
775.021, Florida Statutes (1995) expresses the legislature's intent that a defendant be sentenced "separately" for "separate" criminal offenses arising from one criminal transaction....
...e has codified the Blockburger test. Id. at 616. For the purpose 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. § 775.021(4)(a), Fla. Stat. (1995). Florida applies the Blockburger test more strictly than the United States Supreme Court. Consequently, a finding of "separate" offenses under section 775.021(4)(a) are a rarity....
...[8] To the extent that McCloud authorizes separate convictions and sentences for violations of the same statutory provision, it deviates from Blockburger and its progeny, which typically involve totally separate statutory provisions. Florida has found that two offenses can be "separate" under section 775.021(4)(a) even though they are based on the same subsection of the same statute....
...The possession charge contains no element that is not part of the trafficking charge. Proof of a possession of cocaine charge requires proof of no additional fact that trafficking in cocaine does not require. Using a traditional Blockburger approach, the two statutes here at issue are not "separate" within the meaning of section 775.021(4)(a)....
...other. An unlawful marihuana user's receipt of a firearm would not violate section 1202(a); an illegal alien's receipt of a firearm would not transgress section 922(h). But for McCloud, I would find no separate crimes under Blockburger as adopted by section 775.021(4)(a), and would agree with Justice Kogan's concurring opinion in Sirmons that section 775.021(4)(b) 3 contemplates permissive lesser included offenses....
CopyCited 10 times | Published | Supreme Court of Florida | 36 Fla. L. Weekly Supp. 270, 2011 Fla. LEXIS 1345, 2011 WL 2375217
...), *854 and alleges that these convictions violate the proscription against double jeopardy. "Absent a clear statement of legislative intent to authorize separate punishments for two crimes, courts employ the Blockburger [ [2] ] test, as codified in section
775.021, Florida Statutes, to determine whether separate offenses exist." McKinney,
24 So.3d at 683 (footnote omitted)....
...but rather, `seeks only to prevent courts either from allowing multiple prosecutions or from imposing multiple punishments for a single, legislatively defined offense.'") (quoting State v. Hegstrom,
401 So.2d 1343, 1345 (Fla.1981)). In its entirety, section
775.021(4) provides: (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 f...
...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. § 775.021(4), Fla. Stat. (2009). McKinney alleges that each of the exceptions provided in paragraph (b) apply to his convictions. We disagree. Originally, we interpreted section 775.021(4)(b) to exempt offenses that arose from the same "core offense" or "primary evil," but in Valdes, we determined that this line of reasoning was no longer tenable. McKinney first alleges that his offenses violate double jeopardy because they are essentially degree variants of one another as described in section 775.021(4)(b)2....
...ed difficult to apply and strayed from the plain language of the statute, we adopted the approach provided in Justice Cantero's special concurrence in State v. Paul,
934 So.2d 1167 *855 (Fla.2006). Valdes,
3 So.3d at 1068. In so doing, we held "that section
775.021(4)(b)(2), Florida Statutes (2008), prohibits `separate punishments for crimes arising from the same criminal transaction only when the statute itself provides for an offense with multiple degrees.'" Valdes,
3 So.3d at 1068 (quoting Paul,
934 So.2d at 1176 (Cantero, J., specially concurring))....
...rom the plain meaning of the statute." Id. at 1075. We further stated: By applying the "primary evil" gloss to the second statutory exception, we have added words that were not written by the Legislature in enacting the double jeopardy exceptions of section 775.021(4) and specifically subsection (4)(b)(2)....
...State,
803 So.2d 695, 699 (Fla.2001)). The court rejected McKinney's contention that robbery and theft are simply aggravated forms of the same underlying offense. The court noted that while until recently precedent supported McKinney's argument, our ruling in Valdes made clear that section
775.021(4)(b)2....
..."prohibits separate punishments only when a criminal statute provides for variations in degree in the same offense." McKinney,
24 So.3d at 684 (citing Valdes,
3 So.3d at 1076). Because, "[b]y statute, robbery is not a degree of theft nor is theft a degree of robbery," the court concluded that "section
775.021(4)(b)2. does not prohibit McKinney's convictions for robbery with a firearm and grand theft." McKinney,
24 So.3d at 684. We agree. Next, we address McKinney's contention that his convictions are exempt under section
775.021(4)(b)1....
...proof that the other does not. Robbery requires that the State show that "force, violence, assault, or putting in fear was used in the course of the taking," and grand theft requires that the State show the value of the property taken. Accordingly, section 775.021(4)(b)1 is inapplicable. Additionally, because neither offense is wholly subsumed by the other, neither is a necessarily included offense of the other. Therefore, section 775.021(4)(b)3....
...ty *858 to abrogate it, or any miscarriage of justice, in Valdes v. State,
3 So.3d 1067 (Fla.2009), this Court departed from decades of well-established law and prescribed that courts adhere to the strict tenets of the Blockburger test enumerated in section
775.021(4), Florida Statutes (2009), when deciding double jeopardy challenges....
...Under that approach, a court would initially search for legislative intent through an examination of the express wording of the statutes at issue. See id. at 165. If that wording did not illustrate the Legislature's intent, a court would then invoke the Blockburger test, as codified in section
775.021(4), to help discern the intent. See id. at 167. "Subsection
775.021(4) was to be treated as an ` aid ' in determining legislative intent, not as a specific, clear, and precise statement of such intent." Valdes,
3 So.3d at 1072 (emphasis added). Along with section
775.021(4)'s directives, a court was to consider whether the two statutory offenses at issue concerned the "same evil." Carawan,
515 So.2d at 168. In accord with the rule of lenity, even if two statutory offenses "contain[ed] a unique statutory element and [were] separate under subsection
775.021(4)," if the two offenses concerned the same evil, double jeopardy guarded against multiple punishments for those offenses....
CopyCited 10 times | Published | Florida 4th District Court of Appeal | 2000 WL 873331
appellant to be a sexual predator pursuant to section
775.21(4)(a), Florida Statutes (1999).[1] On August
CopyCited 10 times | Published | Florida 4th District Court of Appeal | 1992 WL 161482
...rs when the convictions were for offenses arising from incidents occurring at the same time and place during a continuous course of criminal conduct. We also concluded that the legislature did not intend such a result when it added subsection (4) to section 775.021....
...We hold that the legislature intended that the minimum mandatory time to be served before becoming eligible for parole from a conviction of first-degree murder may be imposed either consecutively or concurrently, in the trial court's discretion, for each and every homicide. See § 775.021(4), Fla....
...s contain identical language regarding mandatory punishment. For either offense, the defendant "shall be required to serve no less than twenty-five years before becoming eligible for parole." It seems clear that the legislature intended, pursuant to section 775.021(4), Florida Statutes (Supp....
CopyCited 10 times | Published | Supreme Court of Florida | 1993 WL 25109
...n exception directly relevant here. Under the statute, two offenses occurring as a result of a single act cannot be separately convicted and sentenced if they are "lesser offenses the statutory elements of which are subsumed by the greater offense." § 775.021(4)(b)3., Fla....
...ateness" test by definition are subsumed within the statutory elements of the greater offense, meaning that it is a necessarily lesser included offense. Id. at 925-26. It is obvious that the legislature codified Blockburger within the language of subsection
775.021(4)(a), Florida Statutes (1991). Smith,
547 So.2d at 615. That being the case, it would violate established rules of construction for us to hold that the exception contained in subsection
775.021(4)(b)3. (quoted above) merely duplicates the Blockburger test itself, codified in subsection
775.021(4)(a)....
...[2] Thus, the statutory language quoted in the text above is an obvious and express exception to the statutory requirement that "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." § 775.021(4)(a), Fla....
...r each criminal offense committed in the course of one criminal episode or transaction... . Exceptions to this rule of construction are: ... . 3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense. § 775.021(4)(b), Fla....
CopyCited 10 times | Published | Florida 4th District Court of Appeal | 2001 WL 1575734
...lascivious exhibition, in violation of s.
800.04; 4. A violation of s. 796.03 or s.
796.04, relating to prostitution, upon the child; or 5. Exploitation of the child or allowing the child to be exploited, in violation of s.
450.151. (b) Pursuant to s.
775.021(4), nothing contained herein shall be construed to prohibit the imposition of separate judgments and sentences for the first degree offense described in paragraph (a) and for each separate offense enumerated in subparagraphs (a)1.-5....
CopyCited 9 times | Published | Florida 5th District Court of Appeal | 1998 WL 654083
...State,
679 So.2d 340 (Fla. 1st DCA 1996), where Bowers was convicted of home invasion robbery and burglary with an assault for the same act of home invasion. The court there held that the burglary charge was subsumed by the offense of home invasion robbery. In §
775.021(4)(b), Fla....
...were improper. The opinion noted that regardless of whether burglary with a battery is viewed as an enhanced degree of the crime of burglary, or subsumes any battery charge based on the same factual act, multiple convictions would be improper under section 775.021(4)(b), Florida Statutes....
...s not relevant to prove the robbery. We conclude that no double jeopardy violations appear in appellant's convictions for burglary with an assault or battery and robbery. AFFIRMED. HARRIS, J., concurs. THOMPSON, J., concurs in result only. NOTES [1] Section 775.021(4)(b) reads as follows: "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....
CopyCited 9 times | Published | Florida 3rd District Court of Appeal | 1999 WL 743518
of a designation as a sexual predator under section
775.21, Florida Statutes (Supp.1996). We affirm the
CopyCited 9 times | Published | Supreme Court of Florida | 2005 WL 2779476
including the lifetime employment restrictions in section
775.21(10)(b), Florida Statutes (2000), could be imposed
CopyCited 9 times | Published | Florida 1st District Court of Appeal | 2010 Fla. App. LEXIS 17922, 2010 WL 4723042
...The state correctly concedes error because the indictment did not charge separate acts of possession and the offense of possession of a firearm by a convicted felon was a lesser offense the elements of which were subsumed by the greater offense of possession of a firearm by a violent career criminal. See § 775.021(4)(b)3., Fla....
CopyCited 9 times | Published | Florida 5th District Court of Appeal | 2002 WL 31626143
...This requirement exists because dual convictions meeting the Blockburger test may still be impermissible when the offenses are considered "degree variants of the same core offense." Id. at 22. [7] A two step inquiry is required to determine whether the second exception of the Blockburger test found in section 775.021(4)(b), Florida Statutes (2001) would allow a dual conviction in the instant case. The two step analysis requires inquiry to determine: (1) whether the crimes constitute separate offenses under Blockburger as codified in section 775.021(4)(a); and, if so, (2) whether the crimes are "degree variants" or aggravated forms of the same core offense....
...nvictions for both crimes for the same act committed during a criminal event constitute a double jeopardy violation. We also reach this conclusion greatly influenced by the strong language employed in the Gordon opinion: We have held repeatedly that section 775.021 did not abrogate our previous pronouncements concerning punishments for singular homicides....
...We affirm the conviction for the primary offense of attempted felony murder, a category 10 offense together with the convictions for attempted armed robbery and conspiracy to commit robbery. We remand for preparation of a new scoresheet and re-sentencing. In view of the legislative requirement of section
775.021 to punish each offense that passes the Blockburger test, the requirements of Gordon and the conviction under the relatively new crime created by section
782.051(1), we certify the following question to be one of great public importanc...
...nse contains an element not contained in the other; if not, they are the same offense and double jeopardy bars subsequent punishment or prosecution." The Blockburger test, with exceptions to the basic principle above, has been codified in Florida in section 775.021(4)....
...*949 Thus, a person can be convicted of either attempted first degree or attempted second degree murder, and attempted felony murder because attempted felony murder is neither a lesser included (or a "subsumed") offense of the offense of attempted murder, nor a degree of a homicide offense. [4] § 775.021(4)(b)(2) & (3), Fla....
CopyCited 9 times | Published | Florida 1st District Court of Appeal
...ave 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 judgme...
...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 *507 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....
...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....
...Thomas, whether subsections 1 and 3 of section *509
812.014(2)(b) "each contain[s] a complete description of the offense, together with the applicable punishment," so constituting "two or more criminal statutes" within the meaning and application of section
775.021(4), supra n....
...Davis,
656 F.2d 153 (5th Cir.1981), for example, the court considered "whether Congress intended to allow consecutive sentencing for a simultaneous possession of two types of drugs," under 21 U.S.C. § 841 (a)(1). In Florida, that precise question presumably would be answered by reference to section
775.021(4), supra n. 2, and in this court by the Thomas inquiry,
405 So.2d 1017, whether the offenses are proscribed by "two or more criminal statutes." The problem of separate sentencing so discussed in Davis, absent a statute such as
775.021(4), is conceptually not different from the question here concerning the singularity or duality of offenses....
...of any article or thing declared by this section to be contraband, except as authorized by the officer in charge of such correctional institution. (2) Whoever violates any provision of this section is guilty of a felony of the third degree... . [2] § 775.021(4), Fla....
...alysis required would seem to be the same, absent double jeopardy considerations, on the question of two judgments in respect to each knife. [4] Bell,
437 So.2d at 1058: As we have stated before, the explicit exclusion of lesser included offenses in section
775.021(4) makes clear that the legislature does not intend separate convictions and punishments for two or more statutorily defined offenses when in fact only one crime has been committed....
CopyCited 9 times | Published | Florida 2nd District Court of Appeal | 1990 WL 21424
...State,
528 So.2d 910 (Fla. 2d DCA 1988), approved sub nom, State v. Smith,
547 So.2d 613 (Fla. 1989) (also denying retroactive application of the relevant statute as amended). We turn now to the July 5, 1988, crimes. Because they were committed after the effective date of section
775.021, Florida Statutes (1988), the statute, as amended, applies to them....
...In its amended version, the legislature has clarified its intent by mandating separate convictions and sentences for each criminal offense committed in one criminal episode unless the crimes fit into *315 one of three enumerated exceptions outlined in section 775.021(4)(b)....
...Accordingly, we certify the following question to the supreme court as one of great public importance: WHEN A DOUBLE JEOPARDY VIOLATION IS ALLEGED BASED ON THE CRIMES OF SALE AND POSSESSION (OR POSSESSION WITH INTENT TO SELL) OF THE SAME QUANTUM OF CONTRABAND AND THE CRIMES OCCURRED AFTER THE EFFECTIVE DATE OF SECTION 775.021, FLORIDA STATUTES (SUPP....
CopyCited 9 times | Published | Florida 5th District Court of Appeal
...Trials, convictions and sentences for both such greater offense and such lesser included offenses are always barred by the double jeopardy clauses of the state and federal constitutions. The exclusion of such true lesser included offenses from the requirement of section 775.021(4), Florida Statutes (1979), that a separate sentence be imposed on the conviction of each and every violation of a criminal statute, is merely a recognition of the fact that under the Blockburger test the federal double jeopardy clau...
...bars the trial and conviction (and therefore punishment) of both the greater offense and any lesser offense, all of the constituent elements of which are included in the elements of such greater offense. In the double jeopardy context and as used in section 775.021(4), Florida Statutes (1979), the phrase "lesser included offenses" has its true legal meaning and relates only to "a crime within a crime." "Lesser" means having a lesser number of constituent elements than the greater offense....
...Of course, if trials and convictions are constitutionally prohibited, the point is never reached where the validity of a separate sentence for one of two offenses can even be considered. More unfortunately though, in backing away from Pinder and the double jeopardy problem, Hegstrom backs into section 775.021(4), Florida Statutes (1979), and notices that while that statute mandates separate sentences for every conviction and adjudication of guilt for each criminal offense, it excludes lesser included offenses....
...1432,
63 L.Ed.2d 715 (1980). [3] Paradoxically, however, the same conclusion (that the underlying felony is NOT a necessarily lesser included offense of felony murder) should have led to the conclusion that the lesser included offense exclusion in section
775.021(4), Florida Statutes, did not apply, and a holding that the statute requires, rather than prohibits, a separate sentence as to the conviction relating to the underlying felony offense....
...tantive difference between crimes, re-enunciated and applied by the U.S. Supreme Court in Blockburger, was totally unnecessary in that landmark case. The Florida Supreme Court's interpretation of Florida law, such as its construction in Hegstrom, of section 775.021(4), Florida Statutes (1979), is binding on all other Florida state courts, but where the Florida Supreme Court's interpretation of the federal constitution conflicts with the United States Supreme Court's interpretation, the district courts of this state have consistently followed the federal interpretation....
CopyCited 9 times | Published | Florida 3rd District Court of Appeal | 1995 WL 119083
...armed robbery of the personal effects under section
812.13(2)(a), (b), Florida Statutes (1993), and the armed carjacking of a different item, the vehicle, which is forbidden by a different statute, section
812.133(2)(a), Florida Statutes (1993). See §
775.021, Fla....
CopyCited 9 times | Published | Supreme Court of Florida | 2007 WL 1836899
...criminal transaction, governed whether multiple convictions could result from the same criminal episode. See id. (citing Borges v. State,
415 So.2d 1265, 1266 (Fla.1982)). In 1976, however, the single transaction rule was legislatively replaced when section
775.021(4) of the Florida Statutes was enacted to read: (4) Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses during said criminal episode. . . . Ch. 76-66, § 1, at 115, Laws of Fla.; §
775.021(4), Fla....
...Stat. (Supp.1976). Nevertheless, it still remained within the province of the Legislature to define criminal offenses. If the Legislature clearly defined two offenses such that within a single event a violation of both could occur, the amendment to section
775.021 dictated that a defendant could be convicted and sentenced for both offenses. If, however, the statutory language with respect to the definition of an offense was ambiguous, the rule of lenity, earlier codified in the original passage of section
775.021, dictated that the ambiguity "be construed most favorably to the accused." §
775.021(1), Fla. Stat. (Supp.1974); see also Carawan v. State,
515 So.2d 161, 168 (Fla.1987) ("[W]e find that Florida's lenity requirement constitutes a rule of construction coequal to the Blockburger test codified in section
775.021(4).")....
...the various items enumerated under the theft statute for the purpose of allowing multiple convictions and sentences for each theft that occurs during the course of one criminal transaction. See id. In 1983, [2] the Florida Legislature again amended section 775.021(4), in an effort to expressly incorporate the test announced by the United States Supreme Court in Blockburger v....
...The 1983 amendment added the following language: 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. Ch. 83-156, § 1, at 556, Laws of Fla.; § 775.021(4), Fla....
...eplacement of "two or more criminal statutes" with "separate criminal offenses" demonstrates that the Legislature had determined that it was possible for multiple offenses to be defined within a single criminal statute. See id. The 1983 amendment to
775.021(4) enhanced the reasoning in the Getz opinion that different degrees of theft can be "separate criminal offenses" even though defined in the same statute. See Getz,
435 So.2d at 790-91; ch. 83-155, § 1, at 556, Laws of Fla.; §
775.021(4), Fla....
...the specific property stolen, that the other does not. See §
812.014, Fla. Stat. (2003). However, essential to an analysis in the instant matter and creating arguable confusion with regard to the Getz holding, the Florida Legislature again amended section
775.021(4) in 1988 to emphasize the preference for the Blockburger analysis over the rule of lenity, and listing exceptions to that general preference, as follows: (b) The intent of the Legislature is to convict and sentence for each criminal...
...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. Ch. 88-131, § 7, at 709-10, Laws of Fla.; §
775.021(4)(b), Fla. Stat. (Supp.1988); see also Gordon,
780 So.2d at 24 ("[T]he Legislature amended section
775.021, explicitly enunciating its intent that crimes be separately punished without regard to the rule of lenity....
...ansaction is whether the Legislature "intended to authorize separate punishments for the two crimes." Absent a clear statement of legislative intent to authorize separate punishments for two crimes, courts employ the Blockburger test, as codified in section 775.021, to determine whether separate offenses exist....
...Therefore, if the theft statute itself is a "clear statement of legislative intent" with regard to whether convictions and sentences for multiple theft offenses can result from a single criminal transaction, then resort to the analysis outlined in section 775.021(4) of the Florida Statutes, as urged by defendant Kelso in the instant matter, is inappropriate....
...intent that thefts of the various enumerated properties are to be charged and punished as separate offenses, even when the offenses arise out of the same criminal episode. Therefore, it is unnecessary to look to the rules of construction set out in section
775.021(4), and the assertions of Kelso stemming from the exceptions found in that statutory section must fail. Although we recognize that the 1988 amendment to section
775.021(4) creates concern because section
812.014 describes the theft of the various enumerated properties in terms of degree, and the exception to the preference for separate convictions and sentences listed in section
775.021(4)(b)(2) is for "offenses which are degrees of the same offense as provided by statute," the assertions of Kelso in the instant matter ultimately fail because section
812.014 offers a clear statement of legislative intent, thereby negating the need to look to the rules of construction found in section
775.021 to determine whether convictions for multiple degrees of theft arising from the same criminal episode are permitted....
...If the interpretation we have afforded this section today is misdirected, we are confident our Legislature will review the pertinent legislation and take any action it deems appropriate. CONCLUSION We hold that the opinion of this Court in Getz remains the controlling law following *283 the 1988 amendment to section
775.021 because section
812.014 constitutes a clear expression of legislative intent that thefts of the various enumerated properties under the statute be punished separately, even when the offenses arise from the same criminal episode....
...QUINCE, J., concurs in result only. ANSTEAD, J., dissents. PARIENTE, J., concurring. I concur with the majority because the Court decided this issue in State v. Getz,
435 So.2d 789 (Fla.1983). I write to elaborate on the majority's explanation as to why section
775.021(4)(b), Florida Statutes (2006), has no effect on the holding in Getz or this case....
...Only where no clear intent exists does any other rule of construction come into play." Id. at 165. The Court noted that specifically, the "same elements" test of Blockburger v. United States,
284 U.S. 299,
52 S.Ct. 180,
76 L.Ed. 306 (1932), codified in section
775.021(4), and the "rule of lenity" contained in section
775.021(1), become relevant only when legislative intent is otherwise unclear....
...Offenses which require identical elements of proof. 2. Offenses which are degrees of the same offense as provided by statute. *284 3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense. Ch. 88-131, § 7, at 709-10, Laws of Fla. (codified at § 775.021(4)(b)). As the majority notes, this Court has repeatedly held that section 775.021(4)(b) overruled Carawan....
...Thus, even if we were to conclude that grand theft of a firearm and grand theft of property valued at $20,000 or more "are degrees of the same offense as provided by statute" within the meaning of section 75.021(4)(b)(2), we would have no occasion to resort to the rule of lenity in section 775.021(1) and no basis to conclude that multiple convictions constitute double jeopardy....
...ated above, section
812.014 has not been amended in any way that affects the analysis of the statute outlined by the Court in Getz. [2] Although the Getz opinion was released in July of 1983, subsequent to the effective date of the 1983 amendment to section
775.021(4), the opinion clearly cites to and relies on the 1979 version of the statutory subsection....
CopyCited 9 times | Published | Florida 5th District Court of Appeal | 1988 WL 54425
..., uses, threatens, or attempts to use any weapon or electric weapon or device or carries a concealed weapon is guilty of a felony of the third degree... . [5] Blockburger v. United States,
284 U.S. 299,
52 S.Ct. 180,
76 L.Ed. 306 (1932); codified at §
775.021(4), Fla. Stat. (1985). [6] §§
784.03(2),
784.045(2), Fla. Stat. (1985). [7] Codified at §
775.021(1), Fla....
CopyCited 9 times | Published | Florida 2nd District Court of Appeal | 2003 WL 21749043
...argument that the word "release" can be defined to mean only actual release from a state prison sentence. Where the language of a statute is susceptible of differing constructions, the language must be construed most favorably to the defendant. See § 775.021(1); Thomas v....
CopyCited 9 times | Published | Florida 5th District Court of Appeal | 2003 WL 21511315
qualified as a "sexual predator" pursuant to section
775.21(5)(d), Florida Statutes (2002), which includes
CopyCited 9 times | Published | Florida 5th District Court of Appeal | 2001 WL 60814
...8. Any fire extinguisher. 9. Any amount of citrus fruit consisting of 2,000 or more individual pieces of fruit. 10. Taken from a designated construction site identified by the posting of a sign as provided for in s.
810.09(2)(d). 11. Any stop sign. Section
775.021 indicates the Legislature's intention that the prosecution charge and convict a person for every separate crime he or she commits in a single offense....
...But multiple counts of grand theft of firearms are not involved in these burglaries and the state charged Wilson with the generic section
812.014(2)(c), not
812.014(2)(c)5. In any event, we are not certain that Grappin remains controlling law, since section
775.021, quoted above, was revised substantially following the Grappin decision, and the appropriateness of multiple charges in the same prosecution appears to be purely a legislative determination....
CopyCited 9 times | Published | Supreme Court of Florida | 1991 WL 25375
...State,
561 So.2d 314 (Fla.2d DCA 1990), to answer the following certified question of great public importance: When a double jeopardy violation is alleged based on the crimes of sale and possession (or possession with intent to sell) of the same quantum of contraband and the crimes occurred after the effective date of section
775.021, Florida Statutes (Supp....
CopyCited 9 times | Published | Florida 1st District Court of Appeal | 1999 WL 89933
..." because a plain reading of section
90.803(23) reveals that "the corroboration must relate to the crime charged, not some other incident." Appellant argues, further, that, to the extent section
90.803(23) is subject *791 to differing constructions, section
775.021(1), Florida Statutes (1997), requires that we strictly construe it, in a light most favorable to him. We find appellant's arguments unpersuasive. Section
775.021(1) has no bearing upon the construction of section
90.803(23) for the simple reason that, by its terms, section
775.021(1) applies only to statutes which define criminal offenses, and section
90.803(23) is not such a statute....
CopyCited 9 times | Published | Florida 1st District Court of Appeal | 2006 WL 3796177
...Concerning the issue of double jeopardy, settled precedent establishes that an appellant may not be charged with two separate offenses premised on his possession of the same contraband found in differing packages in the same location when the contraband is seized as part of the same search. § 775.021(4), Fla....
CopyCited 9 times | Published | Florida 5th District Court of Appeal | 1990 WL 37488
...[3] There appears no reason to so liberally construe the Florida Constitution in this case. Although not specifically raised on appeal, the dissent also urges that the conviction and sentence for possession should be reversed based on legislative intent as expressed in section 775.021(4)(b)....
...The count of the information charging sale or delivery of cocaine makes no reference to possession. See Portee v. State,
392 So.2d 314 (Fla. 2d DCA 1981) approved,
447 So.2d 219 (Fla. 1984). It appears, therefore, under the present law of this state, that section
775.021(4)(b) is inapplicable because possession is not a lesser included offense of sale or delivery of cocaine....
...ion and sale or delivery. Decisions in this state can be divided time-wise, into three categories: (1) those decided before Carawan v. State,
515 So.2d 161 (Fla. 1987), (2) those decided after Carawan and before amendment, effective July 1, 1988, of section
775.021(4), Florida Statutes, and (3) those decided after the 1988 amendment to section
775.021(4)....
...nstitutional separation of powers doctrine, the interpretation of the constitution is an exclusive judicial function which the judiciary should not abrogate in favor of the legislature. If the legislature intends to substitute a statutory enactment (§ 775.021(4), Fla....
...tion that the legislature contemplated this situation. Therefore, a separate charge of possession at a distinctly different time from a delivery or sale could, by careful drafting of a charging document, be differentiated from either event crime. In section 775.021(4)(b), the legislature has explained that in section 775.021(4)(a), the legislature has intended to adopt a "rule of construction" so as to cause a defendant to be convicted and sentenced for each separate criminal offense although committed by a single act (and apparently in disregard of the f...
...t two such offenses may constitute "the same offense" within the meaning of that phrase in the constitutional double jeopardy clause.) However, the legislature has expressly provided three exceptions to its rule of construction. The third exception (§ 775.021(4)(b)3.) is: Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense....
...luded within (subsumed by) the greater offense of "delivery," and as "delivery" is a separate offense, all of the statutory elements of which are included within ("subsumed by") the greater offense of "selling," it would appear from the amendment of section 775.021(4) by Ch....
...ect to separate convictions and separate punishments. [7] The majority opinion relies on State v. Smith,
547 So.2d 613 (Fla. 1989), as authority for affirming. The only holding with stare decisis authority in that case was that the 1988 amendment to section
775.021(4), Florida Statutes, [widely acclaimed to have been enacted in order to reverse Carawan v....
...14, 1990), in which the Second District relying on its decision in Gordon v. State,
528 So.2d 910 (Fla. 2d DCA 1988), approved sub nom State v. Smith,
547 So.2d 613 (Fla. 1989), held that as to crimes occurring after July 1, 1988, (the effective date of section
775.021, Florida Statutes (1988)), the legislature did not intend separate convictions for both the offense of possession and the offense of sale as to the same quantum of contraband....
...McCloud and reverse the possession offense in this case. NOTES [1] Neither Roberts v. State,
557 So.2d 685 (Fla. 5th DCA 1990) nor McKinney v. State,
559 So.2d 621 (Fla. 3d DCA 1990) are applicable to this case because those offenses occurred prior to the effective date of the amendment to section
775.021(4) Florida Statutes....
...[7] This is exactly the same result that should have been reached by constitutional double jeopardy analysis prior to Carawan and also under the rationale in Carawan without propping up the double jeopardy analysis in Carawan by alluding to the rule of lenity in criminal cases codified by the legislature in section 775.021(1), Florida Statutes, and without attempting to synthesize the double jeopardy analysis in Carawan with the federal view of "legislative intent" as set forth in Missouri v....
CopyCited 9 times | Published | Florida 4th District Court of Appeal | 1991 WL 44997
...Webster's New Collegiate Dictionary (1981) defines "elementary school" as "a school usu. including the first six or the first eight grades." Therefore, in light of the fact that penal statutes must be construed strictly in favor of the accused, State v. Jackson,
526 So.2d 58 (Fla. 1988); section
775.021(1), Florida Statutes, we hold that section
893.13(1)(e) does not apply to kindergartens or preschools....
CopyCited 9 times | Published | Florida 4th District Court of Appeal | 1991 WL 58523
...ouble jeopardy. Previously the Florida courts held that dual convictions for both DWI manslaughter and vehicular homicide for a single death violated double jeopardy. Houser v. State,
474 So.2d 1193 (Fla. 1985). But in light of certain amendments to section
775.021, Fla. Stat. (Supp. 1988) this court reversed the conviction and certified to the Florida Supreme Court the question of whether a defendant can now be convicted and sentenced for both of these offenses. Section
775.021 now provides: 4)(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 separatel...
...The state's motion for rehearing now urges the court to reconsider its ruling and to affirm the convictions. Upon reflection we agree with the state and affirm Murphy's dual convictions for DUI manslaughter and vehicular homicide. None of the three exceptions listed in section 775.021(4) is applicable here....
...He further explained that "While becoming intoxicated might be a reckless act in itself it is not reckless operation of a motor vehicle; they are two different acts."
465 So.2d at 1313. Thus, we conclude that because none of the exceptions listed in section
775.021(4) is applicable in the case at bar, and because each of the offenses contains elements which the other does not, Murphy could be convicted of both DUI manslaughter and vehicular homicide. However like the Second District in Kurtz v. State,
564 So.2d 519 (Fla. 2d DCA 1990) we are concerned about this interpretation of section
775.021(4) and we elect to certify the following question to the Florida Supreme Court: WHETHER A DEFENDANT CAN BE CONVICTED AND SENTENCED FOR DUI MANSLAUGHTER AND VEHICULAR HOMICIDE ARISING OUT OF ONE DEATH IN LIGHT OF SECTION
775.021, FLORIDA STATUTES (SUPP....
CopyCited 9 times | Published | Florida 5th District Court of Appeal | 12 Fla. L. Weekly 1065
...y. Hence we vacate the sentence and conviction for aggravated battery.
476 So.2d at 177. Curiously, the supreme court had issued State v. Snowden,
476 So.2d 191 (Fla. 1985), the day before Mills, noting in the opinion the passage of the amendment to section
775.021(4), Florida Statutes (1983), which incorporated the Blockburger [3] test: This section now clearly expresses legislative intent that there be separate convictions and sentences for separate criminal *640 offenses "if each offense requ...
...at trial."
476 So.2d at 191. See also Vause v. State,
476 So.2d 141 (Fla. 1985), Shaw, J., concurring. Thus, within a span of one day, the supreme court issued Snowden, which states that the legislative intent as to multiple punishments is found in section
775.021(4), applying the strict Blockburger test, and Mills, which relies on a general theory of legislative intent, with a result contrary to the Blockburger test, as a basis for support....
...rmance of that conviction and sentence.
487 So.2d at 1038. The court approved the reversal of the aggravated battery conviction, while upholding the attempted first-degree murder charge. No mention is made in Boivin of legislative intent pursuant to section
775.021(4)....
...However, The Florida Supreme Court has effectively rejected the Boivin rationale in State v. Rodriquez,
500 So.2d 120 (Fla. 1986). There, the court held that the "legislative intent" referred to in Missouri v. Hunter is to be determined in Florida pursuant to section
775.021(4) i.e., in accordance with the Blockburger test rather than on the basis of an ad hoc visceral search for legislative intent....
...t elements, the court found a legislative intent to uphold separate convictions. Thus, Rodriquez marks a return to the supreme court's initial opinion in Boivin, and to its footnote in Snowden, which requires legislative intent to be established via section 775.021(4) and the Blockburger test....
...It also logically follows that the legislature does not intend that one and the same simple act (or degrees of the same substantive act) be punished twice under two or more separate criminal statutes. This construction of legislative intent is expressed in section 775.021(4), Florida Statutes, and is in accord *641 with the established rule of statutory construction that penal statutes are to be construed most favorably to the accused, which latter principle is recognized by judicial precedent and expressly by the legislature in section 775.021(1), Florida Statutes....
CopyCited 8 times | Published | Florida 4th District Court of Appeal | 1994 WL 524298
...We therefore answer the second certified question in the negative as well. Based on the foregoing, this case is hereby reversed and remanded for proceedings not inconsistent with this opinion. DELL, C.J., and HERSEY, J., concur. NOTES [1] The Blockburger "same elements" test was codified in Florida under section
775.021(4), Florida Statutes (1977). See also Borges v. State,
415 So.2d 1265 (Fla. 1982). It essentially remains unchanged today. See §
775.021(4), Fla....
CopyCited 8 times | Published | Florida 5th District Court of Appeal | 1992 WL 235340
...State,
474 So.2d 1193 (Fla. 1985); Stancato v. State,
526 So.2d 723 (Fla. 3d DCA 1988); Vela v. State,
450 So.2d 305 (Fla. 5th DCA 1984). This court has concluded that the rule that there is only one homicide conviction for a single death survives the statutory amendment to section
775.021(4)....
CopyCited 8 times | Published | Florida 2nd District Court of Appeal | 2013 WL 5539337, 2013 Fla. App. LEXIS 16012
...rican Heritage Dictionary of the English Language 81 (4th ed. 2000). Thus, by definition the word “any” is linguistically ambiguous. In the face of this ambiguity, we are required to construe the statute in the manner most favorable to Bell, see § 775.021(1), Fla....
CopyCited 8 times | Published | Florida 2nd District Court of Appeal | 2000 WL 1595953
Coblentz was a sexual predator pursuant to section
775.21(4)(c), Florida Statutes (1997). We assume from
CopyCited 8 times | Published | Florida 4th District Court of Appeal | 2005 WL 3116097
...Torres outside with another man and proceeded to stab her causing severe injuries. These facts were the basis of the attempted second degree murder with a weapon. A trial judge may sentence a criminal defendant to concurrent or consecutive sentences. See § 775.021(4)(a), Fla....
CopyCited 8 times | Published | Florida 5th District Court of Appeal | 2001 WL 314524
...ss v. State,
720 So.2d 1113, 1113 (Fla. 3rd DCA 1998); Bowers v. State,
679 So.2d 340, 341 (Fla. 1st DCA 1996). Convictions for both offenses, arising from the same incident, would violate Mendez's double jeopardy protection and the proscriptions of section
775.021(4)(b), Florida Statutes (1997)....
CopyCited 8 times | Published | Florida 4th District Court of Appeal | 2000 WL 294691
DCA 1998). Because the Sexual Predator Act, section
775.21 of the Florida Statutes, is similar to the
CopyCited 8 times | Published | Florida 3rd District Court of Appeal | 1989 WL 21414
...3d DCA 1988), in which we determined that this result is mandated by Carawan v. State,
515 So.2d 161 (Fla. 1987). See Brown v. State,
538 So.2d 116 (Fla. 5th DCA 1989) (Cowart, J., concurring specially). Moreover, we reject the state's argument that the amendment to section
775.021(4), Florida Statutes (1987), contained in Chapter 88-131, section 7, Laws of Florida, which was effective July 1, 1988, is indicative of a contrary previous legislative intent and therefore overrules Carawan even as to crimes, like...
CopyCited 8 times | Published | Florida 5th District Court of Appeal
...The legislature cannot, constitutionally, intend for a person to be convicted twice for what is substantively "the same offense" and, while the legislature could intend for a person to be punished but once when convicted of two different offenses it has evinced a contrary intent by the enactment of section 775.021(4), Florida Statutes (1983)....
...262 (1939); Monarca v. State,
412 So.2d 443 (Fla. 5th DCA 1982); Preston v. State,
397 So.2d 712 (Fla. 5th DCA 1981). See also Madry and Banks v. State,
448 So.2d 8 (Fla. 5th DCA 1984) and Hedges v. State,
448 So.2d 5 (Fla. 5th DCA 1984). Also see §
775.021(4), Fla....
CopyCited 8 times | Published | Florida 5th District Court of Appeal | 2004 WL 1227319
...ardy. The Florida Supreme Court answered this question in State v. McCloud,
577 So.2d 939 (Fla.1991). It concluded that there are situations in which a sale can occur without possession and thus possession is not an essential element of sale, citing section
775.021(4)(a), Florida Statutes....
CopyCited 8 times | Published | Florida 2nd District Court of Appeal | 1991 WL 272643
...onvicted of more than one of those offenses based on the same act. See, e.g., Carawan v. State,
515 So.2d 161 (Fla. 1987). However, if the statutes do not expressly proclaim an intent to create separate offenses, the "Rules of Construction" found in section
775.021, Florida Statutes *294 (1989), must be applied. [1] Section
775.021(4) provides: (4)(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 separatel...
...We vacate the lesser offenses of grand theft in counts 3, 5, 7, 11 and 12. State v. Barton,
523 So.2d 152 (Fla. 1988). We remand for resentencing on the RICO, organized fraud, and three remaining grand theft convictions. FRANK and ALTENBERND, JJ., concur. NOTES [1] The 1989 version of section
775.021 was effective on July 1, 1988....
CopyCited 8 times | Published | Florida 2nd District Court of Appeal | 2001 WL 1589646
...The issue now on appeal is whether a single death can support both of Ms. Lawrence's convictions. Under current law, these two convictions do not violate double jeopardy. See Blockburger v. United States,
284 U.S. 299,
52 S.Ct. 180,
76 L.Ed. 306 (1932). See also §
775.021(4)(b)(1), Fla....
...The two offenses each require proof of an element that the other does not. Compare §
316.193(3)(c)(3), Fla. Stat. (Supp.1998), with §
316.027(1)(b), .062(2), Fla. Stat. (1997). In addition, the two offenses are not degrees of the same offense, nor is one offense a lesser offense subsumed by the greater offense. §
775.021(4)(b)(2), (3)....
CopyCited 7 times | Published | Florida 5th District Court of Appeal | 1988 WL 91788
...After this petitioner's case was decided on plenary appeal our Supreme Court made its decision in Carawan v. State,
515 So.2d 161 (Fla. 1987) which would have affected this petitioner had it been the law when his appeal was considered. Carawan was not the law then and it is not the law now because the legislature has amended section
775.021(4) to permit multiple convictions for crimes arising out of a "single evil." In this case petitioner shot a single shot and was convicted and sentenced for attempted murder one, [3] shooting into an occupied building [4] and being a person engaged in a criminal offense with a weapon....
...[5] Nothing in Carawan makes it applicable to this case now, in our opinion, because it was not specifically retroactive to prior convictions, did not mention Vause which was directly on point and the legislature has spoken to make clear its intent in section 775.021(4), Florida Statutes....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 1997 WL 655969
designating him a sexual predator pursuant to section
775.21, Florida Statutes (Supp.1996). We dismiss this
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 1990 WL 61943
...We affirm the sentences with amendment. The only point raised by appellant that warrants discussion is the application of Carawan v. State,
515 So.2d 161 (Fla. 1987), to appellant's multiple convictions. Not only have Carawan and its progeny been superseded by statute see §
775.021(4), Fla....
CopyCited 7 times | Published | Supreme Court of Florida | 1998 WL 223437
...SEPARATELY CONVICTED AND PUNISHED FOR TRAFFICKING POSSESSION OF COCAINE AND SIMPLE POSSESSION OF A CONTROLLED SUBSTANCE FOR THE SAME QUANTITY OF COCAINE? Gibbs,
698 So.2d at 1206 (emphasis added). [6] Applying the test set out by the legislature in section
775.021(4)(a), Florida Statutes (1995), we answered that question in the negative because the elements of trafficking possession were no different from the elements of simple possession....
...In this case, the trial court instructed only on simple possession as a lesser included offense of both charges. Possession with intent to sell/deliver cocaine is neither a necessarily included lesser offense nor a permissive lesser included offense of trafficking. See § 775.021(4)(b)(3)....
...SHED FOR POSSESSION OF MARIJUANA WITH INTENT TO SELL AND SIMPLE POSSESSION OF THE SAME QUANTITY OF MARIJUANA? Paccione,
698 So.2d at 252 (emphasis added). [7] Blockburger v. United States,
284 U.S. 299,
52 S.Ct. 180,
76 L.Ed. 306 (1932) (codified at section
775.021(4)(a), Florida Statutes (1995)).
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 2003 WL 21202971
...e regarded as conclusive, absent a clearly expressed contrary legislative intent. Burris v. State,
825 So.2d 1034, 1036 (Fla. 5th DCA 2002), citing Russello v. United States,
464 U.S. 16, 20,
104 S.Ct. 296,
78 L.Ed.2d 17 (1983). Also, as required by section
775.021(1), Florida Statutes (2000), a strict construction must be accorded a penal statute, and when the language of the statute is susceptible of more than one construction, it is to be construed in a manner favorable to the accused....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 1998 WL 210767
section 775.23(2), Florida Statutes (1995) and/or section
775.21, Florida Statutes (Supp.1996). Pursuant to
CopyCited 7 times | Published | Florida 5th District Court of Appeal | 1992 WL 41471
...State,
549 So.2d 796 (Fla. 5th DCA 1989), noted: "The force that was used to take the victim's purse and was necessary to constitute the offense of robbery was the same force used to support the battery conviction." Rowe, at 1107. Based on these facts and pursuant to section
775.021(4)(b)(3), the court concluded that the battery conviction was a category two lesser included offense *1101 of robbery, that the statutory elements of battery were subsumed by the greater offense of robbery, and that convictions of both were improper....
...The Cave court stated in dictum: "Since a robbery may, but does not necessarily include an aggravated battery, the statutory offense of `robbery' does not `subsume' the crime of aggravated battery. Thus, the same act may be punishable as two different offenses under section 775.021(4)(a)." Cave, at 767. The court pointed out that the offenses were committed after July 1, 1988, the effective date of the amendment to section 775.021(4), Florida Statutes (Supp....
...The double jeopardy question raised in the instant case requires an analysis of legislative intent as enunciated in Carawan v. State,
515 So.2d 161 (Fla. 1987), since the incident giving rise to the convictions took place prior to the July 1, 1988, effective date of section
775.021(4), Florida Statutes (Supp....
...Blockburger requires comparison of the elements of the crimes of robbery and aggravated battery. If each has one element that the other does not have, then a presumption arises that the offenses are separate, a presumption that nevertheless can be defeated by evidence of a contrary legislative intent. Id.; § 775.021(1), Fla....
...It is even proper for legislatures to codify or implement constitutional rights. For example, the legislature has legislated statutory speedy trial rights [24] and the judiciary has adopted speedy trial procedural rule rights [25] that go beyond the related constitutional rights. [26] The so-called rule of lenity in section 775.021(1), Florida Statutes, is but a codification of case law relating to basic constitutional due process rights. Section 775.021(4), Florida Statutes, as it presently exists, [27] is but the Florida Legislature's opinion as to the scope of constitutional double jeopardy as it relates to the identity of offenses legal problem. Judicial interpretation of section 775.021(4), Florida Statutes, substituting that legislative opinion for judicial interpretation and construction of double jeopardy rights under the state constitution permits, and also constitutes, violation of the constitutional separation of powers clause....
...n of the rule, nor any amendment or repeal thereof, can in any manner reduce or defeat or adversely affect a constitutional right nor detract from it one dot, jot or tittle. These truths should be in the foreground of any judicial opinion construing section 775.021, Florida Statutes, as amended by Ch....
...[28] Carawan was a case involving construction of the constitutional double jeopardy clause. Unfortunately the opinion in that case also supported its conclusion in part by referring to the statutory codification of the legislature's views of due process and double jeopardy concepts contained in section 775.021, Florida Statutes....
...nt, Muszynski v. State,
392 So.2d 63 (Fla. 5th DCA 1981). See the close and careful analysis of Judge Altenbernd in Kurtz v. State,
564 So.2d 519 (Fla.2d DCA 1990) and the conclusion that notwithstanding that the limited language in the amendment of section
775.021(4)(a), Florida Statutes, would permit it, nevertheless a person could not be convicted for two overlapping statutory homicide offenses as to one death....
...ed compound property offense (the robbery). He may be charged and convicted of either, or neither, of the "greater" (compound) offenses, but not both and not one greater and also a lesser offense that is an inherent part of the greater offense. [17] § 775.021(4)(b)3., Fla....
...y nothing to do with the statutory penalties for the two offenses; Ray v. State,
403 So.2d 956 (Fla. 1981) and State v. Carpenter,
417 So.2d 986 (Fla. 1982) and other cases containing statements to the contrary notwithstanding. [20] The exception in section
775.021(4)(a), Florida Statutes (1988) as to offenses which are "degrees of the same offense as provided by statute" attempts to substitute form (i.e., only "lesser" offenses made degrees of one "greater" offense by statute ) for substance an...
...[21] See Barnhill v. State,
471 So.2d 160 (Fla. 5th DCA 1985) (jury question presented as to whether "force" was separate from attempted robbery). See also Cave v. State,
578 So.2d 766 (Fla. 1st DCA 1991), where the court in reliance on the amendment to section
775.021(4), Florida Statutes, (Ch....
...l law); Hankerson v. North Carolina,
432 U.S. 233,
97 S.Ct. 2339,
53 L.Ed.2d 306 (1977) ( Mullaney rule given retroactive in application). Constitutional due process in criminal cases is supported by the statutory codification of the rule of lenity (§
775.021, Fla....
...ndant is also charged. [24] §
918.015, Fla. Stat. [25] Florida Rules of Criminal Procedure 3.191 and 3.251. [26] Art. I, § 16, Florida Constitution; U.S. Const. amend VI and Barker v. Wingo,
407 U.S. 514,
92 S.Ct. 2182,
33 L.Ed.2d 101 (1973). [27] Section
775.021(4), Florida Statutes, was originally enacted to abolish the single transaction rule, a court created concept that in concept and result somewhat resembled, and was generally confused with, constitutional double jeopardy rights, see Baker v....
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 2001 WL 261598
...The issue before us is whether a trial court erred in disallowing a defendant from withdrawing a plea, pursuant to Florida Rule of Criminal Procedure 3.170( l ), because neither the trial court nor defense counsel informed him that upon conviction, he would be designated a "sexual predator" or "sexual offender" under section
775.021 or
943.0435, Florida Statutes (1999)....
...ERVIN, WEBSTER and LEWIS, JJ., concur. NOTES [1] The parties never clarify which reporting statute applies to Nelson. Our review of the provisions leads us to conclude that Nelson is required to be designated a sexual offender under section
943.0435, rather than sexual predator under section
775.021, because the terms of the latter do not apply to his convictions.
CopyCited 7 times | Published | Florida 4th District Court of Appeal | 1997 WL 348762
...no explanation for that anomaly. The role of judges, however, is not to concern ourselves with statutory anomalies in sentencing statutes unless they create constitutional defects or are ambiguous. Judges are bound, however, by the rule of lenity in section 775.021(1)....
...All of the crimes were committed in June 1995. The 1995 amendments to the sentencing guidelines that might otherwise have applied to this case were made effective October 1, 1995, or after the offenses were committed. See §§ 5 and 6, Ch. 95-184, Laws of Fla. [4] See § 775.021, Fla.Stat....
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 1998 WL 390560
...State,
608 So.2d 912 (Fla. 3d DCA 1992), is more reasonable than the one offered by my colleagues in the majority opinion. However, assuming that the statute can be reasonably interpreted both ways, we must construe the provision most favorably to the accused. See §
775.021(1), Fla.Stat....
CopyCited 7 times | Published | Supreme Court of Florida | 38 Fla. L. Weekly Supp. 581, 2013 WL 3466806, 2013 Fla. LEXIS 1429
...On the same day, the State Attorney for the Eleventh Judicial Circuit filed an information that charged Gil with a violation of the felony HTO statute. Gil subsequently filed a motion to dismiss the information on the basis that it violated Florida’s double jeopardy statute, section 775.021(4), Florida Statutes (2009), which provides: (4)(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 gui...
...In support of the claim, Gil relied upon Duff v. State,
942 So.2d 926 (Fla. 5th DCA 2006), in which the Fifth District held that dual convictions under the DWLS statute and the HTO statute violate the “degree variants” principle of double jeopardy under section
775.021(4)(b)(2), Florida Statutes....
...Paul,
934 So.2d 1167, 1176 (Fla.2006) (Cantero, J., specially concurring)). According to the State, the crimes of unlawful driving as a habitual traffic offender under section
322.34(5) and driving with a suspended license under section
322.34(2) do not satisfy the second exception delineated in section
775.021(4)(b)(2) because they are located in separate statutory provisions, neither offense is an aggravated form of the other, and the offenses are not degree variants of the same offense....
...ssue in this case. The Court’s plain language reading of the two statutes at issue, Fla. Stat. §
322.34 (5) and Fla. Stat. §
322.34 (2), lead this Court to find that prosecution of the Defendant for both of these charges would violate Fla. Stat. §
775.021 (4)(b)....
...2536 ,
81 L.Ed.2d 425 (1984); see also Valdes,
3 So.3d at 1075 (quoting Johnson). The Florida statute that governs double jeopardy is modeled after the test articulated by the United States Supreme Court in Blockburger v. United States,
284 U.S. 299 ,
52 S.Ct. 180 ,
76 L.Ed. 306 (1932). 3 Section
775.021, Florida Statutes (2009), provides: (4)(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...
...dge component. The HTO provision requires that the driver be designated a habitual traffic offender, while subsection (2) does not. Accordingly, dual prosecutions for these offenses are not barred under the “same elements” test articulated in subsection
775.021(4)(a). However, double jeopardy may still attach if subsections
322.34(2) and
322.34(5) satisfy one of the exceptions provided under subsection
775.021(4)(b)....
...ath. The evil of battery omits lethal potential, and the evil of attempted second-degree murder omits victim contact. Thus, the two crimes are not merely degree variants of the same core offense, and therefore do not come within the exception ... in section 775.021(4)(b)(2).”)....
...In receding from the “primary evil” test, the Court in Valdes explained: By applying the “primary evil” gloss to the second statutory exception, we have added words that were not written by the Legislature in enacting the double jeopardy exceptions of section 775.021(4) and specifically subsection (4)(b)(2)....
...only when a *794 criminal statute provides for variations in degree of the same offense, such that a defendant would be punished for a violation of two or more degrees of a single offense. Id. 4 The Court also concluded that the term “degree” in section 775.021(4)(b)(2) has a plain meaning — “a level based on the seriousness of an offense.” Id....
...offense is an aggravated form of the other; and they are clearly not degree variants of the same offense.” Id. at 1077 . Applying the test articulated in Valdes , we conclude that sections
322.34(2) and
322.34(5) qualify as variant offenses under section
775.021(4)(b)(2), Florida Statutes, and double jeopardy precludes the prosecution of Gil under the HTO provision in light of his prior conviction under the DWLS provision based on the same facts....
...In this case, Gil was adjudged guilty of and sentenced for a violation of section
322.34(2). The State cannot now charge him under subsection (5) because to do so would violate the principles of double jeopardy under the degree variant exception of section
775.021(4)(b)(2)....
CopyCited 7 times | Published | Florida 5th District Court of Appeal | 2009 WL 47020
...When a statute is clear and unambiguous, courts will not look behind the statute's plain language for legislative intent or resort to rules of statutory construction to ascertain such intent. Cherry v. State,
959 So.2d 702, 713 (Fla.2007). Alternatively, in considering criminal statutes, the rule of lenity contained in section
775.021(1), Florida Statutes, requires that any ambiguity or situation in which statutory language is susceptible to differing constructions must be resolved in favor of the person charged with an offense....
CopyCited 7 times | Published | Florida 4th District Court of Appeal | 1997 WL 30923
...ial court might decide to tack onto the probation or community control order. Penal statutes are to be strictly construed, and when language is susceptible to differing constructions, it must be construed in the manner most favorable to the accused. § 775.021(1), Fla....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 1998 WL 75001
...[2] Therefore, the two offenses required identical elements of proof, including the time frame in which they were committed. Accordingly, Marinelli is correct in his argument that the two offenses fail the Blockburger [3] test for double jeopardy, which is codified in section 775.021(4), Florida Statutes (1993)....
...or stalking. We do not reach the issue of whether two counts of aggravated stalking, allegedly occurring over the same time period, would violate double jeopardy. [3] Blockburger v. United States,
284 U.S. 299,
52 S.Ct. 180,
76 L.Ed. 306 (1932). [4] Section
775.021(4), Florida Statutes (1993), provides: (4)(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, sh...
CopyCited 7 times | Published | Florida 4th District Court of Appeal | 2007 WL 4338863
...State,
594 So.2d 318, 320 (Fla. 3d DCA 1992) (Gersten, J., dissenting in part). If I were the only one who entertained this construction, I would end this dissent here, but this appears to be a close question. If this statute is susceptible of different interpretations, section
775.021, Florida Statutes, our lenity statute, requires us to apply the interpretation favorable to the defendant. I recognize that the fact that appellate judges may have different interpretations of a statute does not, in and of itself, render a statute ambiguous, Hayes v. State,
750 So.2d 1, 3 (Fla.1999), but we are not required to ignore it, either. And section
775.021 is founded on the due process requirement that criminal statutes must apprise ordinary persons of common intelligence as to what is prohibited, Perkins v....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 2002 WL 31769268
...y. [2] At sentencing, the trial court dismissed the vehicular homicide count because it merged into the third-degree murder count as a lesser included offense. [3] The trial court did not err in sentencing House to consecutive terms of imprisonment. § 775.021(4)(a), Fla....
CopyCited 7 times | Published | Florida 5th District Court of Appeal | 2004 WL 1857604
...If the Legislature did not clearly express its intention to authorize separate punishments, the courts must resort to the test of statutory construction established in Blockburger v. United States,
284 U.S. 299,
52 S.Ct. 180,
76 L.Ed. 306 (1932), now codified in section
775.021(4), Florida Statutes (2001)....
...his mouth on the victim's breast. We do not discern any legislative intent to punish separately each act specified in section
800.04(5)(a) that is committed in the course of one criminal episode, and our analysis under the Blockburger test found in section
775.021(4) does not lead us to conclude that each act committed in one criminal episode is a separate offense....
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 1989 WL 97697
...ion 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] *689 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...
...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 ......
...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....
...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....
...ded 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)....
...e rule of lenity to resolve the conflict in favor of the defendants as required in Carawan. [5] I would also reject the state's argument for the retroactive application to Wheeler of the 1988 amendment (Chapter 88-131, section 7, Laws of Florida) of Section 775.021 by which amendment the legislature apparently sought to vitiate Carawan....
...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." (changes underlined). [4] The application of the rules of construction in section 775.021 presupposes that there is no specific, clear and precise statement of legislative intent regarding multiple punishments....
...In Carawan, the court found that the legislature did not intend to impose multiple punishments for attempted manslaughter and aggravated battery predicated on a single underlying act and that both offenses address essentially the same evil, concluding that the rule of lenity contained in section 775.021(1) required it to remand for vacation of one of the convictions and resentencing....
...Smith,
547 So.2d 613 (Fla. 1989), in which it held that the legislature's 1988 amendment overriding Carawan should not be retroactively applied. [7] The state contends that Fletcher no longer applies in light of Chapter 83-156, Laws of Florida, which it asserts amended section
775.021(4) in direct response to that opinion....
...it seeks to remedy, and the fact that it seeks to protect a particular class or remedy a special problem. [5] 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....
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 2000 WL 518089
declare respondent a sexual predator under section
775.21, Florida Statutes, which the lower court denied
CopyCited 6 times | Published | Florida 5th District Court of Appeal
...The Johnson Court also stated that double jeopardy should be employed by the courts "to ensure that the sentencing discretion of courts is confined to the limits established by the legislature." Id. In this regard, our Florida Supreme Court recently held that section 775.021(4) [7] only applies to necessarily lesser included offenses....
...ne (to run consecutively to the other two sentences). [5] His blood alcohol level later tested at .259. [6] Vehicular homicide is, however, and DWI is a lesser included offense of that crime. See Vela v. State,
450 So.2d 305 (Fla. 5th DCA 1984). [7] Section
775.021(4), Florida Statutes (1981), provides: Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode... . In 1983 the legislature changed the language of section
775.021(4); however, there apparently has been no change in the meaning of that statute....
CopyCited 6 times | Published | Supreme Court of Florida | 37 Fla. L. Weekly Supp. 551, 2012 WL 4009511, 2012 Fla. LEXIS 1799
...s de novo. Heart of Adoptions, Inc. v. J.A.,
963 So.2d 189, 194 (Fla.2007). Hopkins argues that the trial court below properly dismissed the charge in reliance on T.C., 4 which according to Hopkins, was a decision grounded on the rule of lenity. See §
775.021(1), Fla....
...784.082 in pan materia with other battery statutes found in chapter 784. Rule of Lenity Hopkins relies on the rule of lenity in support of his position that section
784.082 does not include juvenile detention centers. The rule of lenity, codified in section
775.021(1), Florida Statutes (2007), provides that, “[t]he 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.” §
775.021(1), Fla....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 1990 WL 261985
...ncluded offense of robbery, must be vacated. The force that was used to take the victim's purse and was necessary to constitute the offense of robbery was the same force used to support the battery conviction. In light of those facts and pursuant to section 775.021(4)(b)3, the statutory elements of the lesser offense of battery are subsumed by the greater offense of robbery and appellant, therefore, cannot be convicted of both....
CopyCited 6 times | Published | Florida 1st District Court of Appeal | 1992 WL 312849
...tatus and the defendant's knowledge of same, the offense of simple battery has no constituent element that would distinguish it from battery on a law enforcement officer. [4] Consequently, under Blockburger, the two crimes cannot be separate. Accord Section 775.021(4)(b)(3), Florida Statutes (1989), excluding "[o]ffenses which are lesser offenses the statutory elements of which are subsumed by the greater offense" from the legislative intent to punish for each offense....
...1st DCA 1992), where this court affirmed the defendant's conviction for battery on a law enforcement officer in the absence of a simple battery instruction. We do not consider Diaz controlling, however, because the issue was not preserved in that case. [3] The Blockburger test is codified at Section 775.021(4)(a), Florida Statutes (1989)....
CopyCited 6 times | Published | Florida 5th District Court of Appeal | 1990 WL 71772
...dicates Weiner was aware that probation probably would be imposed if he changed his plea from not guilty to no contest. The court is under a duty to impose a sentence for each offense notwithstanding that the offenses are combined in one scoresheet. § 775.021(4), Fla....
...The statutory maximum for a second-degree felony is 15 years. §
775.082(3)(c), Fla. Stat. (1987). Since Weiner chose to commit two second-degree felonies, the statutory maximum is 30 years because the court has discretion to impose consecutive sentences for the two offenses. §
775.021(4), Fla....
CopyCited 6 times | Published | Florida 1st District Court of Appeal | 1998 WL 251475
...al when there was no prejudice to the defendant.
456 So.2d 503 (Fla. 2d DCA 1984). Here, appellant makes no credible claim of prejudice. On the second issue, we affirm both the first degree burglary conviction and the aggravated battery convictions. Section
775.021(4)(a) and (b), Florida Statutes, provide: (4)(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,...
...gree burglary must be predicated. In Gaber v. State, the supreme court faced an analogous situation.
684 So.2d 189 (Fla.1996). Gaber was charged with both grand theft of a firearm and armed burglary. The court held that "[u]nder the plain meaning of section
775.021(4)(a), Florida Statutes (1993), a court is required to examine each of a defendant's convictions arising out of the same incident to determine whether `each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.' §
775.021(4)(a), Fla....
...not. No double jeopardy violation appears. We respectfully disagree with Crawford v. State in which our sister court held that convictions for both aggravated battery and first degree burglary arising out of the same factual event are improper under 775.021(4)(b)....
...
662 So.2d 1016 (Fla. 5th DCA 1995). The Crawford court reasoned that the defendant committed only one battery and that battery was used as an element of both first degree burglary and aggravated battery. This situation, however, appears to *1280 be contemplated by section
775.021(4)....
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 1998 WL 250752
...(1995), and, in the chapter entitled "Financial Responsibility," a motor vehicle is also defined as excluding mopeds, §
324.011(1), Fla. Stat. (1995). Appellant argues that these different definitions create an ambiguity which, under the principle of lenity, should be interpreted favorably to the accused. §
775.021(1), Fla....
CopyCited 6 times | Published | Florida 1st District Court of Appeal | 1992 WL 102438
...ultiple sentences can be raised for the first time on appeal. See Wright v. State,
573 So.2d 998 (Fla. 1st DCA 1991). Determining whether Perrin could properly be sentenced on both the grand theft and the worthless check charges requires us to apply section
775.021(4), Florida Statutes (1989), which provides: (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,...
...Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense. Because Perrin's grand theft charge and worthless check charges were part of one criminal transaction or episode, we must determine whether one of the three exceptions set forth in
775.021(4)(b) is applicable. Because the crime of grand theft and the crime of obtaining property by passing a worthless check do not have identical elements, and because the two crimes are not degrees of the same offense, the first two exceptions of
775.021(4)(b) are inapplicable here. Our analysis next focuses upon
775.021(4)(b)(3) and the issue becomes whether the statutory elements of the "lesser offenses," the misdemeanor worthless check charges, are subsumed by the "greater offense," the felony grand theft. In State v. Smith,
547 So.2d 613, 616 n. 6 (Fla. 1989), the supreme court suggested that
775.021(4)(b)(3) prohibits multiple punishment for "necessarily included" offenses. In State v. McCloud,
577 So.2d 939 (Fla. 1991), the defendant had been charged with possession and sale of the same quantum of cocaine. On appeal, he argued that the trial court had properly dismissed the possession charge under
775.021(4)(b)(3) because it was a lesser included offense of the sale. The supreme court disagreed, observing: "An offense is a lesser-included offense for purposes of section
775.021(4) only if the greater offense necessarily includes the lesser offense."
577 So.2d at 941....
...Thus, despite the fact that McCloud had possessed and sold the same cocaine, he could lawfully be punished for both offenses. The court further observed that it is inappropriate to examine the evidence to determine whether an offense is a lesser-included offense in any given case because
775.021(4)(a) cautions that "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."
577 So.2d at 941....
...Therefore, obtaining property by passing a worthless check is not a "necessarily included" lesser offense of grand theft. This is so even though, under the facts of this case, obtaining property by passing a worthless check may have been a category two, lesser-included offense of grand theft. Accordingly, we hold that section 775.021(4)(b)(3) does not prohibit punishment for Perrin's grand theft and worthless check offenses....
...The trial court dismissed the grand theft count and the district court affirmed, holding that the statutory elements of grand theft are subsumed by the statutory elements of obtaining property in return for worthless checks. At the outset of its analysis under 775.021(4)(b)(3), the Smith court had to determine which of the two crimes Smith was charged with was the "lesser" offense and which was the "greater" offense....
...Because the court focused upon whether the statutory elements of the grand theft offense were subsumed by the elements of the worthless check offense, and ultimately affirmed the dismissal of the grand theft charge, it is apparent that in Smith, the grand theft was the "lesser offense" within the meaning of 775.021(4)(b)(3)....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal | 2002 WL 341982
statewide, as well as placement on the Internet. See §
775.21(7), Fla. Stat. (1997).
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 2009 Fla. App. LEXIS 1917, 2009 WL 529572
...2d DCA 2006); Smith v. State,
886 So.2d 336 (Fla. 5th DCA 2004). The factual basis for Mauldin's plea is not disputed and it is clear from the face of the record. The only cognizable issue in this case is whether he could receive consecutive sentences. Section
775.021(4)(a), Florida Statutes (2002), permits consecutive sentences for multiple convictions arising from a single episode....
...tences are permitted. We also write to address an aspect of double jeopardy analysis that requires some clarification. The State, in its response to the trial court, argued that multiple convictions for aggravated assault were authorized by sections 775.021(4)(a) and (b)....
...State,
515 So.2d 161 (Fla. 1987), which held that a single act could not form the basis for more than one conviction and sentence. Id. The legislature, in response to that decision, enacted and essentially codified the Blockburger [2] "same elements" test in section
775.021(4), Florida Statutes (2002), which is used when determining whether an act that violates multiple statutes can be punished separately....
...The Supreme Court has held that when performing Blockburger double jeopardy analysis the court is to look solely to the statutory elements and not to the allegations in the charging document or the evidence adduced at trial. State v. Paul,
934 So.2d 1167, 1173 (Fla.2006) (emphasis added). Section
775.021(4)(a) provides that offenses should be considered 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....
...The record indicates that Mauldin entered a general or open plea which does not waive a double jeopardy claim where the other elements of the Novaton exception are met. See Demps v. State,
965 So.2d 1242, 1243 (Fla. 4th DCA 2007). [2] Blockburger v. United States,
284 U.S. 299,
52 S.Ct. 180,
76 L.Ed. 306 (1932). [3] In Section
775.021(4)(b), the legislature provided: "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...
CopyCited 6 times | Published | Florida 5th District Court of Appeal | 2000 WL 864206
...He further argues that all of the elements of tampering with physical evidence are subsumed by the elements of the resisting offense, because the conduct proved in this case was sequential steps in a single episode of continuous resistance. Wallace; Sirmons v. State,
634 So.2d 153 (Fla.1994); §
775.021(4)(b)(3), Fla.Stat....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal
...1975), the supreme court held that multiple sentences were proper where the petitioner had possession of two separate drug substances each of which constituted in and of itself a separate violation of law. This rule has now been further modified by Section 775.021, Florida Statutes (1977). We hold that Section 775.021 applies to the situation sub judice, requiring a judgment and sentence to be imposed upon each criminal charge and conviction. [1] Therefore judgments of guilt as to both the sale and possession charges are affirmed but the case is remanded for the entry of a separate judgment and sentence on each conviction. BOARDMAN, C.J., and RYDER, J., concur. NOTES [1] Section 775.021, Fla....
CopyCited 6 times | Published | Florida 4th District Court of Appeal
...Peavey,
326 So.2d 461, 463-464 (Fla.2d DCA 1975), cert. denied,
336 So.2d 1184 (Fla. 1976). This court also pointed out in Borges v. State,
394 So.2d 1046 (Fla. 4th DCA 1981), affirmed,
415 So.2d 1265 (Fla. 1982), that the legislature has abrogated the single transaction rule. Florida Statute
775.021(4) (1977)....
...267,
25 So.2d 563 (1946). Appellant also argues that we should vacate his conviction for using a firearm during the commission of a felony. The trial court did not impose a sentence for his conviction of the use of a firearm in the commission of a felony. Section
775.021(4), *882 Florida Statutes (1979), bars multiple sentences....
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 2009 WL 78024
...nt did not conceal the cocaine. Although he removed the cocaine from his hand, he did not remove the cocaine from the immediate area of his arrest. Mr. Boice merely abandoned the evidence. The statute must be construed most favorably to the accused. § 775.021, Fla....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 1997 WL 67953
...The issue on appeal is whether the state can charge McDonald with both grand theft pursuant to section
812.014, Florida Statutes (1993), and credit card fraud by a person authorized to provide goods and services pursuant to section
817.62, Florida Statutes (1993), without violating double jeopardy prohibitions. Section
775.021, Florida Statutes (1993), sets out the rules to be used by Florida courts to determine whether a defendant may be convicted of two separate offenses committed during one criminal episode....
...We conclude that Justice Kogan was correct when he pointed out in his concurring opinion in Sirmons v. State,
634 So.2d 153 (Fla.1994), that this section is nothing more than "a reiteration of the Blockburger [2] rule." Sirmons,
634 So.2d at 154 (Kogan, J., concurring). Section
775.021(4)(b) sets out certain exceptions to the rules listed under subsection (4)(a)....
...If we apply a strict elements analysis, we would be compelled to reverse. However, based upon the reasoning in Thompson v. State,
585 So.2d 492 (Fla. 5th DCA 1991), adopted and approved,
607 So.2d 422 (Fla. 1992), we conclude that exception two to the Blockburger test, provided in section
775.021(4)(b)2, Florida Statutes (1993) is applicable in this case....
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 1988 WL 131615
...es arise from a single act as occurred in this case. Brown v. State,
529 So.2d 1247 (Fla. 4th DCA 1988); McKenney v. State,
529 So.2d 367 (Fla. 1st DCA 1988); Edwards v. State,
529 So.2d 1213 (Fla. 4th DCA 1988). Although the legislature has amended section
775.021(4), effective July 1, 1988, which will ultimately affect the holding in Carawan, it should not be applied retroactively....
CopyCited 6 times | Published | Florida 5th District Court of Appeal | 1990 WL 199164
...iolent felony be committed in Florida. Canales urges that since the habitual violent felony offender provision does not specifically permit the enumerated offenses to have been committed outside Florida, we should apply the rule of lenity set out in section 775.021, Florida Statutes (1988) and construe the provision in his favor....
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 1999 WL 1076801
...here is competent substantial evidence to support the trial court's finding that this crime was committed in an unsophisticated manner. Construing "unsophisticated" liberally in favor of the defendant, as we are bound to do under our rule of lenity, section 775.021(1), Florida Statutes, we conclude that there was competent substantial evidence to support the trial court's finding....
CopyCited 6 times | Published | Florida 1st District Court of Appeal | 1990 WL 115530
...Therefore, appellant's convictions are AFFIRMED but his sentences are REVERSED and this cause is REMANDED for correction of appellant's guidelines scoresheet and resentencing consistent with this opinion. SHIVERS, C.J., and BARFIELD, J., concur. NOTES [1] Section
775.021(4), Florida Statutes (Supp. 1988), overrode the Carawan decision but, as explained in State v. Smith,
547 So.2d 613 (Fla. 1989), the Carawan interpretation of the statute remains in effect for crimes committed prior to the effective date of the 1988 amendment to Section
775.021(4), Fla....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 1999 WL 586967
...He then ordered her into the bedroom where he raped her twice more. Aiken was convicted of aggravated assault with a firearm, sexual battery with a firearm, two counts of sexual battery involving the use of threats or force, and battery. The issue outlined above is Aiken's sole issue on appeal. Section 775.021(4)(b), Florida Statutes (1995), states that it is the intent of the legislature that a defendant be convicted and sentenced for each offense he commits during the course of a single criminal episode....
...Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense. It is the third exception that goes to lesser included offenses. The supreme court in State v. McCloud,
577 So.2d 939, 941 (Fla. 1991), held that "[a]n offense is a lesser-included offense for purposes of section
775.021(4) only if the greater offense necessarily includes the lesser offense." See also Duhart v....
...Blanchard,
634 So.2d at 1119. The Blanchard court cited to Sirmons v. State,
634 So.2d 153 (Fla.1994), for the proposition that Blanchard could not be convicted of both battery and false imprisonment. However, Sirmons does not interpret the third exception outlined in section
775.021(4)(b), lesser included offenses, but rather addresses the second exception, offenses which are different degrees of the same offense....
...The Gibbs court, however, stated, "We adhere to our decision in McCloud. " Gibbs,
698 So.2d at 1209. The court specifically noted that the holding in McCloud could coexist with the holding in Gibbs. Thus, the Gibbs court reaffirmed McCloud, which held that the exception outlined in section
775.021(4)(b)(3) applies to necessarily included offenses only....
...onvicted of a permissive lesser included offense when he has been convicted of the greater offense, with both offenses arising out of the same criminal act. In the present case, Aiken's convictions do not come under any of the exceptions outlined in section 775.021(4)(b)....
...A person could be raped while unconscious, in which case they would not be the victim of an assault. Lastly, the parties agree that in this instance, aggravated battery is a permissive lesser included offense of sexual battery with a firearm. As determined above, section 775.021(4)(b)(3) applies only where the lesser included offense is a necessarily lesser included offense....
CopyCited 6 times | Published | Florida 5th District Court of Appeal | 2000 WL 553926
...n." See also, Spioch v. State,
742 So.2d 817 (Fla. 5th DCA 1999). Although the legislature has not expressly defined the phrase, any uncertainty resulting from the legislature's vagueness should accrue to the benefit of the defendant, not the state. §
775.021(1), Fla....
...d be scored. See, e.g., §§ 921.0011(7)(c) & (d), Fla. Stat. (1999). Today, the majority has broadly defined an ambiguous statute through judicial fiat and interpreted it against the accused in violation of a primary rule of statutory construction. § 775.021(1)....
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 1999 WL 641853
...The statute makes no provision for enhancing third degree felonies, such as the attempted sexual battery in this case, to second degree felonies. Applying the rule that statutes defining criminal conduct are to be strictly construed, we hold that section
794.023 does not apply to the crime of attempted sexual battery. See §
775.021(1), Fla....
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 1999 WL 641796
...This instruction improperly enlarged the scope of the crime beyond the language of the statute. Penal statutes are to be strictly construed in a manner most favorable to the accused. See Weber v. City of Fort Lauderdale,
675 So.2d 696, 698 (Fla. 4th DCA 1996); §
775.021(1), Fla....
CopyCited 6 times | Published | Florida 5th District Court of Appeal | 2006 WL 941766
..., where fight occurred before school hours and no school activity or function was taking place at location of fight). This interpretation would be consistent with the notion that criminal statutes are to be strictly construed in favor of an accused. § 775.021, Fla....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 1996 WL 501435
...Appellant, Darla Wolf, appeals her convictions for petit theft and felony fraudulent use of a credit card, raising multiple claims of error. We find merit in only one. We agree that convictions for both petit theft and fraudulent use of a credit card arising out of a single act is improper. § 775.021(4), Fla....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 2002 WL 31039623
...If the language is clear, it must be regarded as conclusive, absent a clearly expressed contrary legislative intent. Russello v. United States,
464 U.S. 16, 20,
104 S.Ct. 296,
78 L.Ed.2d 17 (1983). We also must follow the dictates of the Legislature set forth in section
775.021(1), Florida Statutes (2001), which provides: (1) The provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of constructions, it shall be construed most favorably to the accused....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 1995 WL 516474
...was committed to the custody *1294 of the Department of Health and Rehabilitative Services. M.P.C. appeals his multiple adjudications, arguing that he cannot be adjudicated delinquent of the three crimes because of double jeopardy. See Sirmons v. State,
634 So.2d 153 (Fla. 1994); §
775.021(4)(b), Fla....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal
...denied, ___ U.S. ___,
115 S.Ct. 1122,
130 L.Ed.2d 1085 (1995); Valdes v. State,
626 So.2d 1316, 1322 n. 8 (Fla.1993), cert. denied, ___ U.S. ___,
114 S.Ct. 2725,
129 L.Ed.2d 849 (1994). The appellants argue that the 1988 amendment to the rules of construction in section
775.021(4), Florida Statutes (1991), requires this court to recede from Enmund. See ch. 88-131, § 7, at 709-10, Laws of Fla. (stating a legislative intent "to convict and sentence for each criminal *1069 offense committed in the course of one criminal episode or transaction"). As we explained in Smith, the 1988 amendment of section
775.021(4) was intended to override our previous decision in Carawan [ v....
...nished under the homicide statute for the resulting death, but the legislature did not intend for the various separate acts to be the subject of additional criminal charges. The Laines panel recognized that a contrary argument could be made under subsection 775.021(4), Florida Statutes, [3] but in view of the large number of *1070 criminal charges which could theoretically be lodged against a defendant in circumstances like Laines, the panel concluded that to allow multiple charges would be "a r...
...ild. By specifically including the category of aggravated child abuse within the felony murder statute, the legislature clearly contemplated that both charges can be made where violence directed at the child results in the death of the child. [3] Subsection 775.021(4), Florida Statutes (1991) provides: (4)(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, sha...
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 1996 WL 590968
...Because the conclusion that they occurred after that date, *1133 which results in the application of the lower, 1994, guidelines, is more favorable to the defendant, the familiar "rule of lenity" requires that he be given the benefit of that doubt. § 775.021(1), Fla....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2003 WL 22336133
determined that the Florida Sexual Predators Act, section
775.21, Florida Statutes, is constitutional. See Reyes
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 2003 WL 22238979
declared to be a sexual predator pursuant to section
775.21(4)(c), Florida Statutes (1997). Mr. Coblentz
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 2009 Fla. App. LEXIS 16554, 2009 WL 3670707
...of the deadly weapon, but the mere fact that a deadly weapon was carried. ... Id. at 929. Because the offense of aggravated assault requires proof of an element not required for armed carjacking, multiple convictions and punishments may be imposed. § 775.021(4)(a), Fla....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 1991 WL 65936
...We do not need to reach this constitutional issue because it is clear that the Florida Statutes do not authorize multiple convictions in cases in which an additional punishment would be improper. Id. at 520-21 (footnote omitted). It makes eminent good sense to conclude, as did the second district, referring to section 775.021(4), Florida Statutes (Supp....
...We next address the merits of appellant's double jeopardy argument. Appellant committed his offenses in March 1988, after the supreme court decided Carawan v. State,
515 So.2d 161 (Fla. 1987), but before the effective date of the legislative override of Carawan by section
775.021(4), Florida Statutes (Supp....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 1998 WL 135119
...armed robbery and grand theft auto because they are merely a degree variance of the same core offense of theft. Id. at 154. Multiple punishments or convictions are not permitted if the offenses in question are degrees of the same offense pursuant to section 775.021(4)(b)2, Florida Statutes (1989)....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 1999 WL 123568
...or reject it and sentence the defendant under subsection (8)(a) 2. We find that the trial court did not abuse its discretion. We note that section
775.082(8) is not a model of clarity and may be susceptible to differing constructions. That being so, section
775.021(1) [3] requires us to construe section
775.082(8) most favorably to the accused....
...)(a)2.c, Florida Statutes (1997). [3] "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." § 775.021(1), Fla....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 1993 WL 186549
...s a clear intent to treat the two crimes as two separate offenses. Houser,
474 So.2d at 1196-1197 (holding that DWI manslaughter and vehicular homicide are different forms of the same offense). Since the advent of Houser, the legislature has enacted section
775.021(4), effective July 1, 1988. Ch. 88-131, § 7, Laws *731 of Fla. [6] However, this court, following the second district's decision in Kurtz v. State,
564 So.2d 519 (Fla. 2d DCA 1990), has held that, regardless of the amending language of section
775.021(4), a defendant cannot be convicted of two homicide offenses arising out of a single death caused by an automobile accident....
...h). In Kurtz, the court reviewed the issue of whether an accused could be convicted of both DUI manslaughter and manslaughter by culpable negligence arising out of a single death. The Kurtz court reasoned that, regardless of the amending language of section 775.021(4), a defendant cannot be convicted and sentenced for two homicide offenses arising out of a single death from an automobile accident because the legislative history does not evidence an intent to punish for both offenses for a single...
...SHARP, J., and WHITE, A.B., Associate Judge, concur. NOTES [1] §
316.193(3)(c)3, Fla. Stat. (1991). [2] §
316.193(3)(c)2, Fla. Stat. (1991). [3] §
316.193(3)(c)1, Fla. Stat. (1991). [4] §
322.34(3), Fla. Stat. (1991). [5] §
812.014, Fla. Stat. (1991). [6] Section
775.021(4) provides in pertinent part:
775.021 Rules of construction....
...Exceptions to this rule of construction are: 1. Offenses which require identical elements of proof. 2. Offenses which are degrees of the same offenses as provided by statute. 3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense. § 775.021(4), Fla....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 1998 WL 281293
...We also agree with Vasquez's argument that concurrent convictions are prohibited for grand theft of the Tahoe and obtaining the Tahoe with intent to defraud based on the same transaction. See State v. Thompson,
607 So.2d 422 (Fla.1992), adopting,
585 So.2d 492 (Fla. 5th DCA 1991) (holding that section
775.021(4)(b), Florida Statutes (1989), barred concurrent prosecution *1307 for fraudulent sale of a counterfeit controlled substance and felony petit theft based on the same transaction); State v. McDonald,
690 So.2d 1317 (Fla. 2d DCA) (holding that section
775.021(4)(b)2, Florida Statutes (1993), prohibited conviction for fraud by person authorized to provide goods or services and grand theft based on the same facts), review denied,
698 So.2d 849 (Fla.1997)....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 1995 WL 376690
...1989) ("[T]he statutory element test shall be used for determining whether offenses are the same or separate."). The legislature has declared that "offenses are separate if each criminal offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial." § 775.021(4)(a), Fla....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 2012 WL 2345118, 2012 Fla. App. LEXIS 9995
...Moreover, we note that Jones did not implicate the merger doctrine, the basis for the reversal in this case. The final step in the double jeopardy analysis requires this court to determine whether the charges survive a “same elements” test, as defined by section 775.021, Florida Statutes, most commonly known as the Blockburger 1 “same elements” test....
...convictions: 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. § 775.021(4)(b), Fla....
...The principle of merger is an exception to the standard double jeopardy analysis and, but for the merger doctrine, attempted premeditated first-degree murder and attempted felony murder would not violate double jeopardy. The Florida Supreme Court has held that section 775.021, Florida Statutes, does not abrogate the merger principle, which prohibits multiple punishments for a single killing....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 2006 WL 1649020
...State,
682 So.2d 79, 81 (Fla.1996) (quoting Albernaz v. United States,
450 U.S. 333,
101 S.Ct. 1137,
67 L.Ed.2d 275 (1981)). The absence of a clear statement of legislative intent to authorize separate punishments for crimes that arise from one criminal episode requires application of section
775.021(4), Florida Statutes (2005), to determine whether separate offenses exist. M.P.; Gaber v. State,
684 So.2d 189 (Fla.1996). Section
775.021(4) eschews the rule of lenity, which compels strict construction of criminal statutes in favor of the accused, [1] by requiring that separate crimes committed in the course of one criminal episode be punished separately. §
775.021(4), Fla. Stat (2005); see also Gordon v. State,
780 So.2d 17, 24 (Fla.2001) ("Subsequently, the Legislature amended section
775.021, explicitly enunciating its intent that crimes be separately punished without regard to the rule of lenity."). Separate crimes are committed "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." *233 §
775.021(4)(a), Fla....
...ary virtue is that it can be easily applied to produce consistent and predictable results. There are, however, three statutory exceptions that apply if the crimes do not have identical elements, one of which is a reiteration of the Blockburger test. § 775.021(4)(b), Fla. Stat. (2005). [3] Reduced to its essence, section 775.021(4) provides that convictions and sentences for offenses committed in one criminal episode violate double jeopardy when the offenses have identical elements or, having different elements, they are degree variants of the same offense, or one or more are lesser included offenses and subsumed in the greater offense. Hence, the analysis under section 775.021(4) requires that we first determine whether the offenses have identical elements and if they do, the analysis ends and one offense must be eliminated....
...If any exception applies, elimination of one offense is required to comply with the double jeopardy protections. Id. We discern no clear legislative statement that separate convictions and punishments for the three offenses committed by Vazquez are intended, so we proceed with our analysis under section 775.021(4), beginning first with examination of the elements of each offense to determine identity....
...fense of attempted second-degree murder is homicide. Therefore, the crimes of attempted second-degree murder and the two shooting offenses are not degree variants of the same underlying offense for which dual convictions are unauthorized pursuant to section 775.021(4)(b)(2)....
...e core offense of battery, leads us to conclude that the two shooting offenses are degree variants of the same underlying offense. [5] Therefore, because both offenses arise out of the same criminal episode, convictions for both are prohibited under section 775.021(4)(b)(2)....
...Accordingly, we remand with instructions to the trial court to vacate one of the shooting convictions and for resentencing on the remaining convictions, if necessary. We affirm the judgment in all other respects. AFFIRMED IN PART, AND REMANDED WITH INSTRUCTIONS. PLEUS, C.J. and PALMER, J., concur. NOTES [1] § 775.021(1), Fla....
...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. The first exception provided in section
775.021(4)(b) simply repeats the Blockburger same elements test. [4] Section
782.04(2) defines the crime of second-degree murder and section
777.04 defines attempt. [5] We note that the two shooting offenses do not fall within the exception provided in section
775.021(4)(b)(3) because they are not necessarily included lesser offenses of attempted second-degree murder....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2007 WL 1688034
..."The prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal episode is whether the Legislature `intended to authorize separate punishments for the two crimes.'" Id. (quoting M.P. v. State,
682 So.2d 79, 81 (Fla.1996)). Section
775.021(4)(b)(3), Florida Statutes, prohibits multiple convictions and punishments for "[o]ffenses which are lesser offenses the statutory elements of which are subsumed by the greater offense." DUI is a Category One lesser included offense of DUI manslaughter....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 2006 WL 1867476
...alse impersonation offense. Although it may have little practical effect, we must reverse the judgment and sentence for armed burglary because it either violates double jeopardy under article I, section 9, of the Florida Constitution, or contravenes section
775.021(4)(b), Florida Statutes (2003). It has been held that convictions arising from a single episode for home invasion robbery and burglary violate either double jeopardy or section
775.021(4)(b)(3). See, e.g., Mendez v. State,
798 So.2d 749 (Fla. 5th DCA 2001) (holding convictions for burglary of a dwelling with assault or battery and home invasion robbery violated double jeopardy and section
775.021(4)(b) *860 because burglary of a dwelling was subsumed by the home invasion robbery offense); Barboza v....
...The State persuasively argues that the burglary was complete at the moment Mr. Perez entered the home and that the robbery was a separate offense occurring at least a few seconds later inside the home. Accordingly, the State maintains that convictions for the two offenses are permissible under section 775.021....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 2004 WL 19487
2003) (holding Florida Sexual Predator's Act, section
775.21, Florida Statutes (2000), to be unconstitutional
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 1996 WL 14050
...The Florida Supreme Court posed the issue in Flowers as "whether the Legislature intended that a multiplier be applied when calculating legal constraint points."
586 So.2d at 1059. In order to resolve conflicting opinions in Flowers, the court resorted to our lenity statute, section
775.021(1), Florida Statutes (Supp. 1988) and held that our sentencing guidelines, when susceptible of different interpretations, must be construed in favor of the defendant. Lenity, although codified by our legislature in section
775.021(1), is founded on the due process requirement that criminal statutes must apprise ordinary persons of common intelligence as to what is prohibited....
CopyCited 5 times | Published | Florida 1st District Court of Appeal
...As in Foster, possession of these otherwise innocent items was unlawful only because the evidence established that these items were in fact used to commit a burglary. See, Preston v. State,
373 So.2d 451 (Fla. 2d DCA 1979). *988 Since the decision in Foster, the legislature has enacted the single transaction statute, Section
775.021(4), Florida Statutes (Supp....
...nal transaction as the higher offense. Sellars v. State,
362 So.2d 33 (Fla. 1st DCA 1978), cert. discharged,
377 So.2d 24 (Fla. 1979); McClendon v. State,
372 So.2d 1161 (Fla. 1st DCA 1979); Purvis v. State,
370 So.2d 32 (Fla. 2d DCA 1978). Although Section
775.021(4) might appear to authorize separate sentences herein, we conclude that double jeopardy principles preclude separate convictions....
...I must concede that the dicta that seemingly support a contrary view have caused confusion among state courts that have attempted to decipher our pronouncements concerning the Double Jeopardy Clause's role in the area of multiple punishments. The legislature, by § 775.021(4), Florida Statutes (Supp....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 2007 WL 4547164
have the same meaning ascribed in s.
775.21"); §
775.21(2)(f) & (g), Fla. Stat. (2006) (defining "[p]ermanent
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 2000 WL 1816833
...licable for sentencing under PRR. In State v. Huggins,
744 So.2d 1215, 1216-17 (Fla. 4th DCA 1999), rev. granted,
761 So.2d 332 (Fla.2000) the Fourth District unanimously held in its en banc decision that "[b]ecause of the rule of lenity codified in section
775.021(1), Florida Statutes (1997), we conclude that the word `occupied' found in section
775.082(8)(a)(1)(q) modifies both structure and dwelling." Thus, burglary of an unoccupied dwelling is not one of the enumerated offenses and PRR is not applicable to sentencing for a conviction on that charge....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 1991 WL 44970
...We write to expressly reject appellant's claims that his dual convictions for armed robbery and grand theft as well for armed robbery and aggravated assault violate double jeopardy. The acts which gave rise to the charged offenses occurred subsequent to the effective date of the statutory amendment to section 775.021(4), Fla....
...1984), a pre- Carawan decision, the supreme court expressly found that dual convictions for both armed robbery and aggravated assault were proper. See also Brown v. State,
569 So.2d 1320 (Fla. 1st DCA 1990) (dual convictions for armed robbery and aggravated assault proper under statutory amendment to §
775.021(4)). Accordingly, we hold that under section
775.021(4), Fla....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 5587, 2010 WL 1687617
...State,
823 So.2d 208, 209 (Fla. 2d DCA 2002); see also Gaber v. State,
684 So.2d 189, 192 (Fla.1996) ("[A]bsent an explicit statement of legislative intent to authorize separate punishments for two crimes, application of the Blockburger `same-elements' test pursuant to section
775.021(4)....
...The statute in question does not reveal an intent on the part of the Florida Legislature to authorize separate punishments for multiple counts of leaving the scene of an accident in a situation such as this. The Blockburger testwhich is codified in Florida at section 775.021(4), Fla....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2005 WL 957061
...wing him to be sentenced as a PRR. While that order was on appeal, the supreme court granted review in Huggins and confirmed that the PRR statute applied only to burglary of an occupied dwelling. State v. Huggins,
802 So.2d 276 (Fla. 2001). Applying section
775.021(1), Florida Statutes (1997), the supreme court strictly construed the PRR statute and reasoned that the legislature's intent as to whether burglary of a dwelling qualified for PRR sentencing, regardless of occupancy, was unclear....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 2003 WL 1936123
...fenses arising from the same criminal transaction is whether the Legislature `intended to authorize separate punishments for the two crimes.'" Gordon v. State,
780 So.2d 17 (Fla.2001)(quoting M.P. v. State,
682 So.2d 79, 81 (Fla.1996)). To that end, section
775.021(4)(b) of the Florida Statutes (1999) mandates the imposition of convictions and sentences for each criminal offense committed in the course of one criminal episode, but at the same time the statute sets forth three exceptions to this mandate....
...Furthermore, it is apparent that the two offenses are not degrees of the same offense as provided by statute, nor does either offense have elements which are subsumed by the other. As such, imposition of separate convictions for these crimes is authorized under Florida law. See § 775.021, Fla....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 11 Fla. L. Weekly 975
...statutory elements of an offense under section
800.04. Therefore, it cannot be a permissive lesser included offense, and, indeed, the state's appellate brief does not contend that it is. For that matter, it is arguable that the amendment in 1983 of section
775.021(4), Florida Statutes, [6] which recognizes the Blockburger [7] test, has legislatively abolished the artificial and confusing concept of permissive lesser included offenses. See the concurring opinion of Justice Shaw in Green v. State,
475 So.2d 235 (Fla. 1985). In Green, Justice Shaw wrote: Under section
775.021(4) offenses are either separate or lesser included, based on the statutory elements....
...State,
440 So.2d 392, 396 (Fla. 5th DCA 1983). See also Hamilton v. State,
129 Fla. 219,
176 So. 89, 112 ALR 1013 (1937); S.N. v. State,
463 So.2d 343 (Fla. 5th DCA 1985); Gray v. State,
404 So.2d 388 (Fla. 5th DCA 1981), quashed on other grounds,
435 So.2d 816 (Fla. 1983). Section
775.021(4), Florida Statutes, which abolished the "single transaction rule," unfortunately does not abolish the concept of permissive lesser included offenses....
...t one element not required by the other offense. See Bell v. State,
411 So.2d 319 (Fla. 5th DCA 1982), aff'd in part, rev'd in part,
437 So.2d 1057 (Fla. 1983); Baker v. State,
425 So.2d 36 (Fla. 5th DCA 1982), quashed,
456 So.2d 419 (Fla. 1984). By section
775.021(4), Florida Statutes, the legislature intended only to abolish the old "single transaction rule" by mandating that a separate sentence be imposed upon the conviction of each separate criminal offense....
...[5] The genesis of the problem lies in the dubious premise that use of the term "necessarily included offense" in a statute implies the existence in legislative cognition of a new category of lesser offenses without essential elements of the higher offense. [6] Section 775.021(4), Florida Statutes (1983), provides: Whoever, in the course of one criminal transaction or episode, commits separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offen...
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 1993 WL 105442
...Smith , the supreme court recognized that the Legislature expressed its specific intent concerning separate convictions and sentences for two crimes committed during the same criminal transaction by the passage of chapter 88-131, section 7, Laws of Florida (codified in section 775.021(4)(b), Florida Statutes). The court stated in Smith that "absent a statutory degree crime or a contrary clear and specific statement of legislative intent ... all criminal offenses containing unique statutory elements shall be separately punished" and, thus, "section 775.021(4)(a), Florida Statutes, should be strictly applied without judicial gloss." Smith, supra at 616. Section 775.021(4)(a), Florida Statutes (1991), reads as follows: 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...
...For the purpose 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. (Emphasis supplied). In order to conduct the statutory analysis mandated by section 775.021(4)(a), it is necessary to look at the statutory language contained in the charges against appellant....
...f the second degree, punishable as provided in s.
775.082, s.
775.083, and s.
775.084. It is undisputed that all three crimes were committed as part of the same criminal transaction or episode. The state argues, however, that a strict application of section
775.021(4) will reveal that armed robbery with a firearm, attempted first-degree murder, and possession of a firearm during the commission of a felony, to wit: attempted first-degree murder, are three separate criminal charges....
...itute a violation. The statute simply says that use of a firearm during the commission of a felony is a second-degree felony. It is only by looking at the accusatory pleading that we learn that the underlying felony is attempted first-degree murder. Section 775.021(4), Florida Statutes, however, states that we must only look at the statutory language rather than the accusatory pleading or proof adduced at trial in performing the double jeopardy analysis....
...olving use of the same firearm in committing the same robbery cannot form the basis of separate conviction and sentence for use of a firearm while committing a felony under section
790.07(2)." [1] Id. at 1146. The Cleveland decision does not utilize section
775.021(4), Florida Statutes, in reaching the decision, but rather focuses on whether a person should be subjected to two penalties for committing the same act....
...The possession of a firearm during the commission of the attempted murder has not been enhanced nor punished. Therefore, if the Cleveland analysis is truly act specific and it is utilized, separate convictions and punishments may be permissible. It appears, however, that the appropriate analysis is the one contained in section 775.021(4), Florida Statutes (1991)....
...ATTEMPTED MURDER CHARGE AS A RESULT OF USE OF THE FIREARM. MINER, J., concurs. ERVIN, J., concurs in result. NOTES [1] Prior to Cleveland v. State,
587 So.2d 1145 (Fla. 1991), it appeared courts only departed from the statutory analysis contained in §
775.021(4) in cases involving imposition of consecutive mandatory minimum sentences....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1989 WL 103994
...the courts use the Blockburger [2] test in determining whether the legislature intended to punish two separate offenses: Whether each provision requires proof of an additional fact which the other does not. This test has been codified since 1983 in section 775.021(4), Florida Statutes (emphasis added): Whoever in the course of one criminal transaction or episode, commits separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offens...
...Under this test, violation of section
893.13(1)(e) and violation of section
893.13(1)(a) are separate offenses, even when they are both predicated on the same act or transaction. In Baker v. State,
456 So.2d 419, 420 (Fla. 1984), the supreme court held that the language of the 1979 version of section
775.021(4) [3] excluding lesser included offenses "refers only to necessarily lesser included offenses", that "the Brown category four [now category 2] lesser included offense analysis, while still possibly viable for jury alternatives, has n...
...the legislature intended to punish these offenses separately. We find in the statute no indication that the legislature intended to punish these separate offenses only once. In Carawan v. State,
515 So.2d 161 (Fla. 1987), the supreme court construed section
775.021 as a rule of statutory construction, noting that in the absence of any express statement of legislative intent, the Blockburger test creates a presumption as to the actual legislative intent, but that the court "then must consider the...
...fact which the other does not, "multiple punishments are presumed to be authorized in the absence of a contrary legislative intent or any reasonable basis for concluding that a contrary intent existed. "
515 So.2d at 168 (emphasis in the original). Section
775.021(1) requires strict construction of the criminal code provisions, and provides that "when the language is susceptible of differing constructions, it shall be construed most favorably to the accused." The Carawan court construed this pr...
...hat multiple punishments were not intended, no matter what the elements of the crimes were." Id. It held that 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 (sic) that the court find that multiple punishments are impermissible." Id. Shortly after the supreme court's opinion in Carawan was issued, the Florida Legislature amended section 775.021(4), chapter 88-131, Laws of Florida (changes underlined): (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 adjudicati...
...Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense. The parties dispute whether application of the Carawan "lenity" doctrine to determine the legislative intent in this case is appropriate following the 1988 amendment to section 775.021(4)....
...ns and punishment, but did not address the district court's rationale in so concluding. [5] The State asserts that to the extent Carawan may have cast doubt on the precedential value of Smith, the Florida Legislature dispelled that doubt by amending section 775.021 to preclude use of the principle of "lenity" as set out in that section to determine legislative intent in such matters, contrary to Carawan....
CopyCited 4 times | Published | Florida 3rd District Court of Appeal
...1981); and that possession of a firearm during the commission of any felony also predicated upon the shooting with a rifle is a lesser included offense of the aggravated battery. Cf. Kindell v. State,
413 So.2d 1283 (Fla. 3d DCA 1982) (felonious display of a firearm lesser included of aggravated assault). Since section
775.021(4), Florida Statutes (1981), precludes the imposition of multiple convictions and sentences which are lesser included offenses, [*] we vacate the convictions *1075 and sentences for aggravated battery and for possession of a firearm during the commission of a felony....
...d the conviction to remain intact. Following that decision, I would affirm the convictions for the lesser included offenses of aggravated battery and possession of a firearm during the commission of a felony, and only vacate the sentences. NOTES [*] Section 775.021(4) provides: Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for...
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 2008 WL 4377316
...crimes are nonetheless considered separate offenses, separately punishable. See id. at 1171-72. The Blockburger [2] test, also known as the "same elements test," governs this stage of the analysis. See id. The Blockburger test, which is codified in section
775.021, Florida Statutes (2007), "prohibits courts from imposing multiple convictions for an act or acts which occur in one criminal episode if each offense does not contain at least one element distinct from the other offenses." Paul,
934 So.2d at 1172. The Blockburger test specifically provides, "[O]ffenses 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." §
775.021(4)(a), Fla....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 2000 WL 1396216
registering his change of address, pursuant to section
775.21, Florida Statutes. He argued that he did not
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2004 WL 1932726
...hether adjudication is withheld" language implies that a finding of guilt is not necessary. The rule of lenity provides that when the language of a criminal sentencing statute is ambiguous, the statute must be construed favorably to the accused. See § 775.021, Fla....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 1995 WL 516437
...We disagree with the first argument, given the circumstances of this case. However, we agree Turner should not have been convicted and sentenced for both crimes, since they involved the same cocaine being found in his sole possession when he was delivered to a Marion County Jail facility following his arrest. Section 775.021(4), Florida Statutes (1993) provides: (a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, ......
...GRIFFIN, Judge, dissenting. The jury found the defendant guilty of two separate offenses: possession of cocaine and introduction of contraband into a county detention facility. I think these are two separate offenses separately punishable under Florida law. § 775.021(4), Florida Statutes (1993)....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 1999 WL 817185
...The Blockburger test, which is also called the "same-elements" test, inquires whether each offense contains an element not contained in the other; if not, they are the same offense and double jeopardy bars subsequent punishment or prosecution. The Blockburger [7] test has been codified in Florida at subsection 775.021(4), Florida Statutes, which sets forth that it is the Legislature's intent to "convict and sentence for each criminal offense committed in the course of one criminal episode," but listing three enumerated exceptions to this test: offenses that require identical elements of proof, offenses that are degrees of the same offense as provided by statute, and offenses where the statutory elements of the lesser offense are subsumed by the greater offense. § 775.021(4)(b)1.-3., Fla....
...ee murder, does not require great bodily harm, but does require intent to kill. Defendant asserts, however, that Counts I, II, and III are merely "degrees of the same offense as provided by statute" so as to come within the exception in subparagraph 775.021(4)(b)2....
...de. In Sirmons v. State,
634 So.2d 153 (Fla.1994), the court held that dual convictions arising from a single incident based on the same core offense come within the statutory exception. Justice Kogan, in a concurring opinion, explained subparagraph
775.021(4)(b)2....
...tiple punishments when all of the offenses in question both arose from a single act and were distinguished from each other only by degree elements. Sirmons,
634 So.2d at 155. See also State v. Anderson,
695 So.2d 309 (Fla.1997) ("We conclude that subsection
775.021(4)(b)(2) means just what it says: Multiple punishments are barred for those `crimes' that are degrees of the same underlying `crime.' As a general rule, degree crimes, or `degree variants,' are oftentimes denoted in the same statutory chapter, but such is not always the case.") (footnotes omitted)....
...State,
515 So.2d 161 (Fla.1987) (Shaw, J., dissenting) (disagreeing with the majority position that aggravated battery and attempted homicide address the same evil and cannot thus be punished separately). [9] The subsequent "overruling" of Carawan's analysis by the adoption of paragraph
775.021(4)(b) supports our conclusion that the imposition of convictions and sentences on all four counts is required....
...State,
718 So.2d 327 (Fla. 4th DCA 1998) (convictions for both second-degree murder and aggravated battery on a pregnant woman violate double jeopardy where both charges stem from same violent assault). [9] In Carawan, the supreme court found that section
775.021 was unclear whether separate punishments were permissible for the crimes of attempted manslaughter, aggravated battery, and shooting into an occupied building, arising from a single incident or episode. It concluded that they were not. In 1988, the Legislature "overruled" Carawan's analysis by enacting paragraph (4)(b) of section
775.021....
...arawan. More specifically: (1) The legislature rejects the distinction we drew between act or acts. Multiple punishment shall be imposed for separate offenses even if only one act is involved. (2) The legislature does not intend that (renumbered) subsection 775.021(4)(a) be treated merely as an `aid' in determining whether the legislature intended multiple punishment. Subsection 775.021(4)(b) is the specific, clear, and precise statement of legislative intent referred to in Carawan as the controlling polestar....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 1989 WL 114249
...rse in other words, the battery. Battery is a category two lesser included offense of robbery. [1] In an apparent response to Carawan v. State,
515 So.2d 161 (Fla. 1987), the Legislature adopted chapter 88-131, section 7, Laws of Florida amending section
775.021(4), Florida Statutes (1987) clarifying its intent in sentencing in cases of multiple convictions....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 2012 WL 4512774, 2012 Fla. App. LEXIS 16705
...If so, then the court must determine whether the offenses are predicated on more than one distinct act. Id. If the charges are not predicated on distinct acts and occurred in the same criminal episode, the court then applies the Blockburger 2 test, as codified in section 775.021, Florida Statutes, to deter *375 mine whether each offense has an element that the other does not, and if so, whether any of the exceptions in that statute apply to preclude.separate convictions....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 1989 WL 122628
...1988), the lesser crime must be dropped. All but one [2] of the cases cited by the majority which reverse a firearm count and leave standing a felony count, rely solely on a Carawan analysis, and the principle of lenity which the supreme court read into *1144 section 775.021, Florida Statutes (1987)....
...[4] This case does not involve upgrading any felony charge because Kelly used a firearm. Because of the time when Kelly committed these offenses, this case should be resolved simply and cleanly on the basis of Carawan v. State,
515 So.2d 161 (Fla. 1987) and the pre-amended version of section
775.021(4)....
...Smith,
547 So.2d 613 (Fla. 1989). See Hammonds v. State,
548 So.2d 909 (Fla. 1st DCA 1989). We should leave for another day the consideration of the state and federal double jeopardy issues and application of the strict Blockburger [5] analysis pursuant to amended section
775.021(4), Florida Statutes (Supp....
...1989) (reversed use of a firearm conviction in case where use of a firearm was used to reclassify an attempted manslaughter charge upwards to a first degree felony; no mention of double jeopardy in majority opinion); Crayton v. State,
536 So.2d 399 (Fla. 5th DCA 1989) (reversed use of a firearm conviction on basis of section
775.021(4); no mention of double jeopardy); Neal v....
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 30 Fla. L. Weekly Fed. D 2401
..., Florida Statutes (1985), or caused bodily harm, see section
784.03(1)(b), Florida Statutes (1985). With regard to the application of a criminal statute, it is fundamental that a court must construe the statute strictly in favor of the accused. See §
775.021, Fla....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2013 WL 5575560, 2013 Fla. App. LEXIS 16195
...Lenity is a deeply-rooted common law principle of statutory construction requiring strict interpretation of ambiguous criminal statutes in favor of the accused. It has not only become ensconced in our jurisprudence, it has become a statutory directive. See § 775.021(1), Fla....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 1999 WL 776086
...Both burglary and battery would be lesser included offenses of the greater offense. It is unnecessary to plead the lesser included offenses separately in order for either to be considered as alternative verdicts by the jury should the jury reject the greater charge. And, because of section 775.021(4)(b)3, Florida Statutes, a conviction of the greater offense bars a conviction also for the lesser included charges....
...as a species of a lesser included offense because the generic reference to "a felony" in the felony murder charge incorporates all of the elements of the various felonies on which the greater charge can rest, [2] Florida, under our Blockburger test (section 775.021(4)(a) and (b), Florida Statutes) holds that none of the elements of the potential predicate felonies are incorporated into our felony murder charge....
...aggravated child abuse.' The State was authorized to charge appellant of both crimes. However, when the underlying crime is an element of the greater offense, the defendant may be convicted and sentenced only for the greater of the crimes." [5] Section
794.023(2), Florida Statutes. [6] Section
775.021(1), Florida Statutes....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2013 WL 5950995, 2013 Fla. App. LEXIS 17860
...2 Thus, if a defendant solicited unlawful sexual activity with a minor through a single use of a computer device prior to traveling to meet the minor for unlawful sexual activity, double jeopardy principles would preclude convictions under both subsections. See § 775.021(4)(b)3., Fla....
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 1995 WL 653546
...Moreover, the armed burglary statute does not require the intent to commit a theft, but rather the intent to commit an offense. *424 Therefore, because each offense requires proof of an element that the other does not, the offenses must be considered separate for double jeopardy purposes. See § 775.021(4)(a), Fla....
...n you can be convicted of armed burglary and grand theft. In conclusion, we hold that armed burglary and grand theft of a firearm are completely separate offenses, and the appellant's convictions for both offenses do not violate double jeopardy. See § 775.021(4)(a), Fla....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1998 WL 827758
...of the taking there is the use of force, violence, assault, or putting in fear. (Emphasis added.) Section
812.133(1), Florida Statutes (1995), defines carjacking nearly identically, replacing the emphasized language with the words "a motor vehicle." Section
775.021(4)(a), Florida Statutes (1995), precludes multiple convictions when one offense contains all the elements necessary to another, but that provision applies to convictions under different statutes based upon the same underlying act. Section
775.021(4)(b), however, provides that " each criminal offense committed in the course of one criminal episode or transaction" warrants a separate conviction....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 1999 WL 992683
predator designation for Mr. Colley pursuant to section
775.21(4)(a)(2)(b), Florida Statutes (Supp. 1996)
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 2003 WL 22768356
Appellant as a sexual predator pursuant to section
775.21, Florida Statutes (2000), as amended effective
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 2007 WL 3355061
...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 adjudicatio...
...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....
...xceptions 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....
...The Florida Supreme Court, however, rejected that argument in Gordon v. State,
780 So.2d 17, 23-24 (Fla.2001). In Gordon, the Florida Supreme Court, in noting Justice Kogan's comments in Sirmons, *420 concluded that such a broad reading of Sirmons "would render section
775.021 a nullity" due to the limited number of "core" crimes....
...g that theft, battery, possession of contraband and homicide are the type of core offenses upon which other criminal charges are based. . . . Extended to its logical extreme, a broad reading of Sirmons and the second statutory exception would render section 775.021 a nullity....
...Indeed, the plethora of criminal offenses is undoubtedly derived from a limited number of "core" crimes. In no uncertain terms, the Legislature specifically expressed its intent that criminal defendants should be convicted and sentenced for every crime committed during the course of one criminal episode. See § 775.021(4)(b). Id. (citation omitted). Section 775.021 was amended in 1989. Prior to the amendment of section 775.021, the courts of this state employed several rules of construction, including the rule of lenity in determining whether convictions for certain offenses committed in the same criminal episode constituted double jeopardy....
...The courts commonly looked for clear statements of legislative intent within the criminal statutes to punish the crimes separately. See Carawan v. State,
515 So.2d 161 (Fla.1987); State v. Boivin,
487 So.2d 1037, 1038 (Fla.1986). In the subsequent amendment to section
775.021, however, the Legislature explicitly articulated its intent and, therefore, changed the analysis and effectively overruled Carawan. See State v. Smith,
547 So.2d 613, 614-17 (Fla.1989); see also Gordon,
780 So.2d at 23 ("[W]e now know the legislative intent. The subsequent amendment to section
775.021 explicitly states, `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 . . . to determine legislative intent.' §
775.021(4)(b), Fla....
...eal's decision in Lopez-Vazquez. Affirmed in part; remanded with instructions; conflict certified. NOTES [1] We specifically recognize our decision in Wilcher v. State,
524 So.2d 1105 (Fla. 3d DCA 1988). Wilcher was decided prior to the amendment of section
775.021(4), and specifically relied upon Carawan. As previously noted in this opinion, the Florida Supreme Court has stated that, by amending section
775.021(4), the Legislature has effectively overruled Carawan....
...See Gordon,
780 So.2d at 24 (stating "we have noted repeatedly that the Legislature effectively overruled Carawan "); see also State v. Johnson,
601 So.2d 219, 221 (Fla.1992) ("The purpose of Chapter 88-131 was to overrule our opinion in Carawan. As amended, section
775.021(4) makes it clear that a defendant may be convicted of two or more criminal offenses arising out of the same transaction as long as each criminal offense contains at least one separate element."); State v. Smith,
547 So.2d 613, 615-17 (Fla.1989). We, therefore, note that, because the Florida Legislature amended section
775.021(4), and Carawan no longer has validity, Wilcher, which was decided prior to the amendment of the statute and which relied upon Carawan, also has no validity.
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2007 WL 1544120
...ed a firearm in both the home-invasion robbery and the armed burglary. Id. at 860. This court noted that various cases have "held that convictions arising from a single episode for home invasion robbery and burglary violate either double jeopardy or section 775.021(4)(b)(3)." Id. at 859. Section 775.021(4)(b), Florida Statutes (2003), *1257 expresses legislative intent "to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction." Section 755.021(4)(b)(3) states an exception to thi...
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 2001 WL 575210
...lied contained the definition which included breasts. Judge Peterson dissented in Kitts because of our lenity statute, which requires that language in a penal statute susceptible of different constructions be construed most favorably to the accused. § 775.021(1)....
...n this case. As Judge Peterson remarked in Kitts: [Since] the legislature has not expressly defined the phrase [sexual contact], any uncertainty resulting from the legislature's vagueness should accrue to the benefit of the defendant, not the state. § 775.021(1), Fla....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2013 WL 2116570, 2013 Fla. App. LEXIS 7966
...v. State,
682 So.2d 79, 81 (Fla.1996)). Absent clear legislative intent to authorize separate punishments, courts employ the Blockburger 2 “same elements” test, ie., “whether each offense has an element that the other does not,” codified at section
775.021(4)(a), Florida Statutes (2009). 3 If, as here, each of the offenses has an element that the other does not, the court must then determine if one of the exceptions set forth in section
775.021(4)(b) applies to preclude separate convictions and sentences....
...es which are lesser offenses the statutory elements of which are subsumed by the greater offense. Ramirez argues that, for each criminal episode, he was unlawfully convicted of two degree variants of the same basic offense. As such, he contends that section 775.021(4)(b)2. prevents two of his convictions. The supreme court has interpreted section 775.021(4)(b)2....
...3d at 1076 . The term “degree” is “a level based on the seriousness of an offense”; however, a degree-relationship can be found, “for example, when a crime may have aggravated forms of the basic offense.” Id. While Valdes informs us that section 775.021(4)(b)2....
...This analysis applies equally to Ramirez’s convictions for striking Bouzigard. Double jeopardy similarly precludes convictions for both felony battery (one prior) and domestic battery by strangulation arising out of the same event because they are both aggravated forms of simple battery. 6 § 775.021(4)(b)2., Fla....
...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. . Though not argued by the parties, we also find that felony battery (one prior) subsumes simple battery. See § 775.021(b)3., Fla....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 2000 WL 628328
...fendant's "acts were artless, simple and not refined." Id. at 1154 n. 3. Likewise, in Fleming, this court affirmed a downward departure sentence on the ground that a drug purchase was committed in an unsophisticated manner. Under the rule of lenity, section 775.021(1), Florida Statutes, we construe "unsophisticated" liberally in favor of appellee and conclude that there was competent substantial evidence to support the trial court's ruling....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 11 Fla. L. Weekly 1147
...ree. Under the Blockburger test [1] battery of a law enforcement officer and aggravated battery each have an element not required to prove the other and therefore they constitute separate and distinct crimes. Accordingly, the state argues that under section 775.021(4), Florida Statutes (1983), (one who commits separate criminal offenses in one criminal transaction or episode shall be sentenced separately for each criminal offense), the appellant may be convicted and sentenced for these two crimes....
...aggravated battery, Foster v. State,
448 So.2d 1239 (Fla. 5th DCA 1984), and that simple battery is a necessarily lesser included offense of battery of a law enforcement officer, Wimberly v. State,
476 So.2d 272 (Fla. 1st DCA 1985). Therefore, under section
775.021(4) one cannot be convicted of battery and aggravated battery based upon the same set of facts nor can one be convicted of battery and battery of a law enforcement officer under the same set of facts. See Baker v. State,
456 So.2d 419 (Fla. 1984), where the Supreme Court held that section
775.021(4), excluding lesser included offenses from its provisions, excludes only necessarily lesser included offenses....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 1989 WL 20687
...1987); Hurd v. State,
536 So.2d 361 (Fla. 3d DCA 1988). Reversed and remanded with directions. DOWNEY and ANSTEAD, JJ., concur. NOTES [1] §
784.045(2), Fla. Stat. (1987). [2] The crime involved herein was committed on July 31, 1986, whereas the amendment to section
775.021(4) became effective July 1, 1988.
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 1997 WL 90827
...statute under which Wallace was convicted. Rather, it deals instead with the legislature's quite explicit statement of textual meaning in its general rules of construction of criminal statutes. [4] We address the history of that statement of intent. Section
775.021 contains a general statement of legislative intent, the following provisions of which are applicable to our reading of section
843.01: "(2) The provisions of this chapter are applicable to offenses defined by other statutes, unless the code otherwise provides....
...But subparagraph (4)(b) was not adopted until 1988. It is the adoption of subparagraph (4)(b) to which we refer in our consideration of history. In Carawan v. State,
515 So.2d 161 (Fla. 1987), the supreme court held that the legislature had not made clear in section
775.021 whether it intended for separate punishments for the crimes of attempted manslaughter, aggravated battery, and shooting into an occupied building, arising from a single incident or episode. In 1988, the legislature "overruled" Carawan by adopting what is now subparagraph (4)(b) of section
775.021....
...arawan. More specifically: (1) The legislature rejects the distinction we drew between act or acts. Multiple punishment shall be imposed for separate offenses even if only one act is involved. (2) The legislature does not intend that (renumbered) subsection
775.021(4)(a) be treated merely as an `aid' in determining whether the legislature intended multiple punishment. Subsection
775.021(4)(b) is the specific, clear, and precise statement of legislative intent referred to in Carawan as the controlling polestar. Absent a statutory degree crime or a contrary clear and specific statement of legislative intent in the particular criminal offense statutes, all criminal offenses containing unique statutory elements shall be separately punished. *1163 (3) Section
775.021(4)(a) should be strictly applied without judicial gloss. (4) By its terms and by listing the only three instances where multiple punishment shall not be imposed, subsection
775.021(4) removes the need to assume that the legislature does not intend multiple punishment for the same offense, it clearly does not. However, the statutory element test shall be used for determining whether offenses are the same or separate. Similarly, there will be no occasion to apply the rule of lenity to subsection
775.021(4) because offenses will either contain unique statutory elements or they will not, i.e., there will be no doubt of legislative intent and no occasion to apply the rule of lenity." [citations omitted, footnotes omitted.] State v. Smith,
547 So.2d 613, 616 (Fla.1989). There can be no doubt under this holding that section
775.021(4)(b) makes it dangerous to read decisions like Grappin and Watts....
...4th DCA 1994). In that case, the convictions included attempted murder with a firearm against one victim, and aggravated battery with a firearm against another victim, both arising from a single incident. We began the analysis with our understanding of section
775.021(4), saying: "We start with the proposition that pursuant to section
775.021(4), Florida Statutes (1989), a trial court has discretion to impose separate sentences, either concurrently or consecutively, for each separate criminal offense arising out of a single criminal transaction or episode."
643 So.2d at 95. In concluding that section
775.021 permitted separate sentences with separate mandatory minimum periods, we stated: "However, in the case of multiple discharges of a firearm at multiple victims, there are, by definition, separate violations of each victim's rights....
...to that of indifference as to the particular one or ones that may be selected." THE COMPACT OXFORD ENGLISH DICTIONARY (2d ed.) 60. [3] "It is grand theft of the second degree ... if the property stolen is ... a firearm." [emphasis supplied.] [4] See § 775.021(6), Fla....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2001 WL 303232
...intended for the courts to impose separate convictions and sentences for the crimes at issue when they are committed during the course of one criminal episode. Brown v. State,
617 So.2d 744, 746 (Fla. 1st DCA 1993), aff'd,
633 So.2d 1059 (Fla.1994). Section
775.021(4)(b) of the Florida Statutes (1995) sets forth Florida's legislative intent regarding this issue as follows:
775.021....
...listed exceptions. The three exceptions are: (1) when the offenses require identical elements of proof; (2) when the offenses are degree variants of the same core offense; and (3) when the greater offense necessarily includes the lesser offense. See § 775.021(4)(b), Fla....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 1992 WL 57168
...The court held that the limitation on the time period of confinement is a primary benefit of the youthful offender act. Therefore, consecutive sentences resulting in total commitment of more than six years were illegal. The court went on to state: Although section 775.021(4) directs that a trial judge may order separate sentences to be served concurrently or consecutively, section 775.021(2), Florida Statutes, states that "[t]he provisions of this chapter are applicable to offenses defined by other statutes, unless the code otherwise provides." Here, the Youthful Offender Act expressly directs that its provisions should be applied in lieu of other penalties....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2004 WL 587651
...775.087 do we find express authority by which a trial court may deny, under subsection
775.087(2), a defendant eligibility for parole for a period greater than three calendar years." Palmer,
438 So.2d at 3. The court also analyzed the provisions of section
775.021(4), Florida Statutes (1981), and likewise found nothing indicating the Legislature's intent to allow consecutive minimum mandatory sentences for offenses that arose out of the same criminal episode....
...Christian,
692 So.2d 889 (Fla.1997), the Florida Supreme Court addressed the issue of stacking minimum mandatory sentences in cases where one firearm is used in a continuous criminal episode. The court analyzed the provisions of sections
775.087 and
775.021(4)(a), Florida Statutes (1993), but found nothing in either statute that would indicate the Legislature's intent that stacking of minimum mandatory sentences should be required....
...ngle prosecution." (Footnote omitted). The court indicated that this interpretation was especially appropriate in light of the doctrine of lenity that requires that any doubts about statutory interpretation be resolved in favor of the defendant. See § 775.021(a), Fla....
...NOTES [1] The provisions of section
775.087(2), Florida Statutes (1999), are commonly referred to as the "10/20/Life" statute. See Olivo v. State,
823 So.2d 872, 872 (Fla. 5th DCA 2002), review denied,
845 So.2d 891 (Fla.2003). [2] Parenthetically, we note that the provisions of section
775.021(4)(b), Florida Statutes, at first blush, might indicate that the doctrine of lenity should not be applied to resolve the issue of stacking minimum mandatory sentences. However, the court in Jackson v. State,
659 So.2d 1060, 1062 (Fla.1995), held that "[t]he subsequent addition of subsection (b) to section
775.021(4) was designed to overrule this Court's decision in Carawan v....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2011 Fla. App. LEXIS 3984, 2011 WL 1080131
...Instead, the statute must be given its plain and obvious meaning. McKenzie Check Advance of Fla., LLC v. Betts,
928 So.2d 1204, 1208 (Fla.2006). And, when the language of a statute is susceptible of differing constructions, the language must be construed most favorably to the defendant. §
775.021(1), Fla....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 2006 WL 708574
declare Butler a sexual predator pursuant to section
775.21, Florida Statutes (2002). In response, Butler
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 1988 WL 66082
...ture sentence unsupported by justifying reasons. The rule of law in all criminal cases is that any ambiguity in statutes, rules, verdicts, judgments, sentences, and any other matter is resolved in favor of the accused. The rule of lenity codified in section 775.021(1), Florida Statutes, is but one statutory recognition of one aspect of the broader rule of law....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2007 WL 1790749
...or offenses arising from the same criminal transaction is whether the Legislature `intended to authorize separate punishments for the two crimes.'" Gordon v. State,
780 So.2d 17, 19 (Fla.2001) (quoting M.P. v. State,
682 So.2d 79, 81 (Fla.1996)). In section
775.021(4)(b), Florida Statutes (2004), the legislature specifically stated its intent that defendants be convicted and sentenced for each criminal offense committed in the course of one criminal episode or transaction....
...However, the legislature also set forth three exceptions to this general rule: 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. § 775.021(4)(b). Multiple convictions for offenses that fall within these statutory exceptions violate the constitutional provision that protects against double jeopardy. [1] When considering section 775.021(4)(b) in the context of resisting offenses, courts have uniformly held that separate convictions for resisting arrest with violence and resisting arrest without violence are prohibited when the acts of resisting occurred as part of a single criminal episode....
...State,
777 So.2d 1175, 1175 (Fla. 5th DCA 2001). This is so because the elements of the lesser offense of resisting without violence are subsumed within the greater offense of resisting with violence. Swilley v. State,
845 So.2d 930, 933 (Fla. 5th DCA 2003); see also §
775.021(4)(b)(3). Thus, Williams' separate convictions for both resisting with violence and resisting without violence are barred by section
775.021(4)(b)(3), and thus constitute a double jeopardy violation, if the acts supporting the convictions occurred during the course of a single criminal episode....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 26 Fla. L. Weekly Fed. D 1573
...State,
721 So.2d 1170, 1172 (Fla.1998). However, words in a penal statute must be strictly construed. Perkins v. State,
576 So.2d 1310 (Fla.1991). Where words are susceptible to more than one meaning, they must be construed most favorably to the accused. §
775.021(1), Fla....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 2003 WL 21537394
...nt six and attempted second degree murder with a firearm in count seven violated double jeopardy as the crimes involved the same victim and same act. See Blockburger v. United States,
284 U.S. 299, 304,
52 S.Ct. 180,
76 L.Ed. 306 (1932), codified in §
775.021(4), Fla....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2005 WL 1584020
virtue of his designation as a sexual predator. §
775.21, Fla. Stat. (2004). He argues that the statute
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 1998 WL 374772
Florida Sexual Predator's Act, codified at section
775.21-23, Florida Statutes (1993) and the changes
CopyCited 4 times | Published | Supreme Court of Florida | 1991 WL 117479
...dy. As Oliver concedes, our recent decision in State v. McCloud,
577 So.2d 939 (Fla. 1991), controls the outcome of this case. In McCloud, we held that the legislature intended for possession and sale of the same narcotic to be separate crimes under section
775.021(4), Florida Statutes (Supp....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2011 Fla. App. LEXIS 11409, 2011 WL 2936748
...unces a legislative policy encouraging the courts to convict a defendant of fewer than all possible offenses in this context. Since 1988, the policy the legislature announced in this statute has been in clear conflict with the policy it announced in section 775.021(4)(b), Florida Statutes (1988)....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 1994 WL 380913
...This test inquires whether each of the two offenses for which the defendant is punished or tried contains an element not contained in the other; if not, they are the same offense and successive prosecution is barred. Dixon, 509 U.S. at ___,
113 S.Ct. at 2856,
125 L.Ed.2d at 568; see also §
775.021(4), Fla....
...on was barred by the Double Jeopardy Clause. See 509 U.S. at ___-___,
113 S.Ct. at 2857-2858. Accordingly, we affirm the appellant's judgment and sentence for indirect criminal contempt. Affirmed. CAMPBELL, A.C.J., and LAZZARA, J., concur. NOTES [1] §
775.021(4)(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 crimina...
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2010 Fla. App. LEXIS 9748, 2010 WL 2628658
...ate the legislative intent. Id. And, the principle of lenity states that criminal statutes shall be strictly construed, and when the language of a statute is susceptible of differing constructions, it must be construed most favorably to the accused. § 775.021, Fla....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 2013 WL 85436, 194 L.R.R.M. (BNA) 3039, 2013 Fla. App. LEXIS 324
...which were not *1266 placed there by the Legislature.” Brook,
999 So.2d at 1097 . If legislative intent in criminal statutes is unclear, ambiguities must be resolved in favor of the defendant. Kasischke v. State,
991 So.2d 803, 814 (Fla.2008); see §
775.021(1), Fla....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1989 WL 5679
...However, I find no such indication of legislative intent with regard to multiple punishments for attempted armed robbery and aggravated assault, and would not apply the Carawan rule of "lenity" to vacate Denmark's three aggravated assault convictions. 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 ......
...If there ever was a Lowry situation, this is it. Application of the amended statute to this case does not pose an ex post facto problem, as suggested in Heath, because the legislature was merely clarifying its original intent as to the proper application of section
775.021, and did not create or change substantive law. Although the Florida Supreme Court has not yet addressed this issue, in a special concurrence to State v. Barritt,
531 So.2d 338, 341 (Fla. 1988), Justice Shaw wrote that the legislature, by amending section
775.021(4), "intends and previously intended, that separate offenses, as defined by the legislature, are subject to separate convictions and separate sentences." In a *71 footnote, Justice Shaw explained that the amendment did not change the substantive meaning of the statute, but "simply explains the meaning of
775.021(4)(a) and lists the only three instances where an offense may be treated as a lesser included offense." Id. See also Clark v. State,
530 So.2d 519 (Fla. 5th DCA 1988), in which the court noted that the legislature had spoken to make clear its intent. Under amended section
775.021(4), multiple punishments are permissible for both the attempted armed robbery and the aggravated assault convictions....
...[2] For purposes of construing the legislative intent with regard to multiple punishments, however, the accusatory pleadings and evidence are irrelevant and the offenses of aggravated assault and attempted armed robbery do not fall within the exceptions set forth in section 775.021(4)(b)....
...Until the statutory scheme evinces a clear legislative intent not to punish separately the crimes of armed robbery and aggravated assault arising from the same criminal act, the appellate courts are precluded from applying the Carawan rule of "lenity" by amended section 775.021(4)(b) unless the offenses in question meet the requirements for one of the exceptions to the statute....
...State,
437 So.2d 1057, 1058 (Fla. 1983)]. Where an offense is not a necessarily lesser included offense, based on its statutory elements, the intent of the legislature clearly is to provide for separate convictions and punishments for the two offenses. §
775.021(4), Fla....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 2011 Fla. App. LEXIS 421, 2011 WL 198397
...al episode do not constitute double jeopardy if each offense contains an element that the other does not. See Valdes v. State,
3 So.3d 1067, 1070-71 (Fla.2009) (citing Blockburger v. U.S.,
284 U.S. 299 ,
52 S.Ct. 180 ,
76 L.Ed. 306 (1932)); see also §
775.021(4)(a), Fla....
...e criminal episode with three exceptions: offenses which require identical elements of proof; offenses which are degrees of the same offense; and offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense. § 775.021(4)(b)1.-3., Fla....
...rm of the other, and the two are not degree variants of the same offense. See Valdes,
3 So.3d at 1076-77 (abandoning the “core offense” and “primary evil” tests from earlier cases in favor of an approach that focuses on the plain language of section
775.021(4)(b)2.). The third exception is not applicable because fleeing or eluding is not a lesser included offense of third-degree murder. See State v. Florida,
894 So.2d 941, 947-48 (Fla.2005) (explaining that section
775.021(4)(b)3....
...hancement to the penalty for DWI because death was an element of the offense. The fact that Appellant’s conviction for fleeing or eluding was based upon a death, rather than serious bodily injury, is irrelevant to the double jeopardy analysis. See § 775.021(4)(a), Fla....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2009 Fla. App. LEXIS 769, 2009 WL 261480
...iminal episode. In State v. Smith,
547 So.2d 613, 616 (Fla. 1989), the Florida Supreme Court recognized the legislature's intent to impose multiple punishments for separate offenses even if the offenses are based on only one act. The court relied on section
775.021(4)(b), Florida Statutes (1991), which provides that Florida's legislature intends to punish each offense committed during one criminal episode, unless the offenses require identical elements of proof, are degrees of the same offense, or if the elements of the lesser offense are subsumed within the greater offense. Id. at 615-16. Applying section
775.021(4)(b), double jeopardy is not implicated if the criminal offenses for which the defendant was charged contain statutory elements that the others do not and the charged offenses are not mere degree variants of the same core offense....
...Bethune where the offenses involved two different victims. Thus, the two offenses, under the facts of this case, are distinguishable by more than mere degree. That Mr. Brinson was convicted and sentenced for both offenses is consistent with the legislative purpose expressed in sections
775.021(4) and
782.04(1)(a)(2)....
CopyCited 4 times | Published | Florida 1st District Court of Appeal
...HAD NO PART IN THE ORIGINAL TAKINGS IS CONVICTED BASED UPON HIS PURCHASE OF THE FIREARMS WITH KNOWLEDGE OF THEIR STOLEN CHARACTER, FROM THE SAME PERSON *661 ON SEVERAL DIFFERENT OCCASIONS? SMITH, WIGGINTON and NIMMONS, JJ., concur. NOTES [1] Nor is Section 775.021(4), Florida Statutes (1981), controlling....
...This section abrogated the "single transaction rule." Borges v. State,
415 So.2d 1265 (Fla. 1982). That rule held that a person charged with several offenses arising from a single criminal transaction should only be convicted of the most serious offense charged. Id. at 1266. In order for Section
775.021(4) (1981) to be applicable, the judgments for the various offenses must be based upon "two or more criminal statutes" and the statute requires separate sentences upon the properly adjudicated offenses committed in the course of one criminal transaction or episode. As in Watts v. State,
440 So.2d 505 (Fla. 1st DCA 1983), Section
775.021(4) cannot, for two reasons, control whether the defendant Colvin's conduct should be considered as multiple violations of the theft statute: 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, how many judgments are to be entered for conduct that may be conceived, but need not be, as violating the same statute twice. Watts,
440 So.2d at 506. (We discuss only the 1981 version of Section
775.021(4) inasmuch as the effective date of the recent legislative amendment, Chapter 83-156, Laws of Florida, was June 22, 1983.) [2] The "obtaining or using" proscribed by Section
812.014(1), Florida Statutes (1981), is defined: "Obtains or uses" means any manner of: (a) Taking or exercising control over property....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1999 WL 69660
...In Ground Two of his motion, Appellant challenged the consecutive running of his three-year minimum mandatory terms. Goens v. State,
453 So.2d 97 (Fla. 1st DCA 1984) (where attempted second-degree murder and armed burglary were committed at same time and place and occurred during single criminal episode or transaction, §
775.021(4), Fla....
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 1994 WL 43842
...ene, does not constitute single criminal episode). Since these convictions did not involve a single criminal episode, Hale does not bar the imposition of consecutive sentences. Thus, the trial court did not err in imposing consecutive sentences. See § 775.021(4)(a), Fla....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2003 WL 327504
...to section 775.0231(4)(a), two convictions for the same act could not stand because the aggravated battery count was a category 2 lesser included offense of attempted second degree murder. Fla. Std. Jury Instr. (Crim.) 372. However, the exception in section 775.021(4)(b)3 for lesser included offenses *589 applies only to category one or necessarily lesser included offenses and not to category two or permissive lesser included offenses....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2006 WL 3523743
...Even if the definition in section
322.01(38) was ambiguous or incomplete, the rule of lenity precludes the trial court's application of the section 633.021(12) definition. Any ambiguity in a criminal statute must be construed in favor of the defendant. §
775.021(1), Fla....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2003 WL 23094766
...Therefore, one may infer from this omission that the legislature did not intend to make solicitations qualifying offenses under the PRR statute. Finally, we note that where, as in this case, "the language of the statute is susceptible of differing constructions, section 775.021(1) requires that we adopt the construction most favorable to the defendant." Thomas v....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1998 WL 906741
...Appellant, Henry Lewis Duhart, was convicted and sentenced for the offenses of burglary of a conveyance with assault and attempted carjacking. He now argues that these convictions and sentences violate his double-jeopardy protections as codified under section 775.021(4)(b), Florida Statutes (1997)....
...assault subsumed the lesser offense of attempted carjacking and, therefore, he may not be punished for both crimes. In Florida, the test set forth in Blockburger v. United States,
284 U.S. 299,
52 S.Ct. 180,
76 L.Ed. 306 (1932), has been codified in section
775.021(4): (4)(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 eac...
...Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense. Appellant contends that the State charged and proved the burglary in such a way that it subsumed the statutory elements of attempted carjacking. He invites us to construe section 775.021(4)(b)3....
...fense of burglary with assault, and *1225 that subsection (4)(b)3. prohibits conviction and sentencing for both offenses. We reject this argument based on precedent from the Florida Supreme Court. "Necessarily lesser included offenses were listed in section
775.021(4)(b)3 as an exception to the stated legislative intent to convict for each criminal offense committed in the course of one criminal transaction because by definition necessarily lesser included offenses do not have any elements which are not also contained in the greater offense." State v. Johnson, 601 So.2d at 219, 221 (Fla.1992). "An offense is a lesser-included offense for purposes of section
775.021(4) only if the greater offense necessarily includes the lesser offense." State v. McCloud,
577 So.2d 939, 941 (Fla.1991). The Florida Supreme Court has thus indicated that section
775.021(4)(b)3....
...offense contains an element not contained in the other. See State v. Johnson,
676 So.2d 408, 411 (Fla.1996). Accordingly, the lesser offense of attempted carjacking is not subsumed by the greater offense of burglary of a conveyance with assault, and section
775.021(4)(b)3....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 1999 WL 1267224
...armed robbery and grand theft auto because they are merely a degree variance of the same core offense of theft. Id. at 154. Multiple punishments or convictions are not permitted if the offenses in question are degrees of the same offense pursuant to section 775.021(4)(b)2, Florida Statutes (1989)....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2001 WL 1635539
predators must register in accordance with section
775.21, Florida Statutes (2000). §
943.0435(5). Sections
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2005 WL 3408037
...Inman argues that even though the type of vehicle he was driving is not listed as an exception to "motor vehicle" in section
322.01(26), it is a new item that the Legislature has not yet categorized. Therefore, he argues, in the absence of legislative proscription, the rule of lenity embodied in section
775.021(1), Florida Statutes (2004), should apply such that his vehicle should be considered outside the definition of "motor vehicle." However, to be excluded from the definition of "motor vehicle," Inman's vehicle would have to be explicitly included in the list of excluded vehicles....
CopyCited 4 times | Published | Supreme Court of Florida | 38 Fla. L. Weekly Supp. 605, 2013 WL 4555586, 2013 Fla. LEXIS 1864
...It is important to note that with three exceptions, the State 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 ... to determine legislative intent.” § 775.021(4)(b), Fla....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2015 Fla. App. LEXIS 12029, 2015 WL 4768997
...1137 ,
67 L.Ed.2d 275 (1981)), approved and remanded,
780 So.2d 17 (Fla.2001). When the legislative intent is not clear from the statute, the court must determine whether separate punishments for the two convictions violate the Blockburger test, 1 as codified in section
775.021(4), Florida Statutes (2013)....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2000 WL 486253
...Ross appeals the summary denial of his motion to correct an illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because Ross's sentence, which was computed under the sentencing guidelines and included points for both grand theft and fraudulent use of a credit card, is in contravention of section 775.021(4)(b)(2), Florida Statutes (1993), we must reverse....
...same actions that resulted in the first conviction. The defendant moved to dismiss this charge, and the motion was granted. This court found in McDonald that the credit card offense and grand theft were degrees of the same offense. The court applied section 775.021(4)(b)(2), Florida Statutes (1993), which carves out exceptions to the legislative fiat that an individual can be convicted and sentenced for separate offenses when the individual has committed an act which constitutes more than one offense....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 2016 WL 2747665, 2016 Fla. App. LEXIS 5908
...carceration and other criminal sanctions. Case law strictly construes criminal driving statutes to prevent the net of the criminal law from sweeping so broadly that it snares all conduct, both criminal and negligent. The lenity principle codified at section 775.021(l)-(2), Florida ....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 2011 Fla. App. LEXIS 5351, 2011 WL 1414685
...93.13(1)(c), Florida Statutes (2006). Thomas argues that these dual convictions, which involved the same quantum of cocaine, run afoul of the constitutional prohibition against double jeopardy as these offenses "are degrees of the same offense." See § 775.021(4)(b)2, Fla....
...at question was phrased broadly, to wit: When a double jeopardy violation is alleged based on the crimes of sale and possession (or possession with intent to sell) of the same quantum of contraband and the crimes occurred after the effective date of section 775.021, Florida *1159 Statutes (Supp.1988), is it improper to convict and sentence for both crimes? We answer the question in the negative and approve in part and quash in part the decision of the Second District....
...It was apparently of no significance to the Supreme Court that both offenses at issue in McCloud were proscribed by the same statute: section
893.13(1)(a). Appellant argues that McCloud does not control because there the Supreme Court only considered whether the dual convictions at issue violated subsection (b)3 of section
775.021 and did not consider subsection (b)2. We do not think the holding in McCloud can be so circumscribed. While the defendant in McCloud argued for the applicability of subsection (b)3, the Supreme Court ruled in broader terms: An offense is a lesser-included offense for purposes of section
775.021(4) only if the greater offense necessarily includes the lesser offense....
...f each offense; the elements of the two offenses remain different even when the offenses each occur within 1,000 feet of a school. See McMullen,
876 So.2d 589. Accordingly, Thomas' convictions are AFFIRMED. WEBSTER, and DAVIS, JJ., concur. NOTES [1] Section
775.021(4)(b), Florida Statutes (2006), provides that it is [t]he intent of the Legislature [to impose a conviction] and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity ....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2008 WL 977193
...ing whether multiple punishments for the same conduct violate double jeopardy in the absence of an explicit statement of legislative intent to *1171 authorize separate punishments for two crimes. In Florida, the Blockburger test has been codified in section 775.021, Florida Statutes. Of particular relevance to our analysis is section 775.021(4)(a), Florida Statutes, which codifies the Blockburger "same elements" test, pursuant to which offenses committed during the same criminal episode are considered separate for double jeopardy purposes "if each offense requires proof of an element that the other does not." Id....
...this approach also appears inconsistent with the directive in Paul that a court's double jeopardy analysis is to be undertaken "` without regard to the accusatory pleading or the proof adduced at trial. '" Id. at 1173 (emphasis in original) (quoting § 775.021(4)(a), Florida Statutes)....
CopyCited 3 times | Published | Supreme Court of Florida
...ession of burglary tools, section
810.06, Florida Statutes (1977). We found that possession of burglary tools was not a lesser included offense of burglary so that multiple convictions and separate sentences for these two offenses were authorized by section
775.021(4), Florida Statutes (1977)....
...separate conviction and sentence. In Johnson v. State,
366 So.2d 418, 420, n. 4 (Fla. 1978), which also dealt with the "single transaction rule," we reaffirmed, on its facts, our holding in Foster. In Borges, we directly construed the application of section
775.021(4), and we found that the "statute has abrogated the single transaction rule."
415 So.2d at 1266....
...The reasoning in Foster, therefore, can no longer be used to declare that separate convictions and sentences for burglary and possession of burglary tools are improper when the tools are common household items. Multiple convictions and consecutive sentences, under both section 775.021(4) and the Double Jeopardy Clause, are barred only when an offense is a lesser included offense of a more serious crime....
...The offenses of burglary and possession of burglary tools are separately defined offenses under sections
810.02 and
810.06, and, even through the tool in question is a screwdriver, a person may properly be convicted and sentenced for each of them under section
775.021(4)....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2010 WL 3783340
considered whether The Florida Sexual Predator Act, section
775.21, Florida Statutes (2000), permitted classification
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2005 WL 2373727
...The rule for valid multiple convictions arising from a single criminal episode is "whether the Legislature `intended to authorize separate punishments for the two crimes'." Gordon v. State,
780 So.2d 17, 19 (Fla.2001) (quoting M.P. v. State, *66
682 So.2d 79, 81 (Fla.1996)). In section
775.021(4), the legislature has made plain its intent to require as many separate punishments as there are separate crimes committed under a Blockburger analysis....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1998 WL 718054
Declare Defendant a Sexual Predator," pursuant to section
775.21, Florida Statutes (1997). In April 1998, while
CopyCited 3 times | Published | Florida 3rd District Court of Appeal
...ions), thus requiring that appellant be resentenced. See Proctor v. State,
373 So.2d 450 (Fla.2d DCA 1979). We comment briefly on another of appellant's points, i.e., that the trial court erred in sentencing him separately on two of the convictions. Section
775.021(4), Florida Statutes (1981) permits separate sentences where the same conduct constitutes a violation of two or more statutes, except where one is a lesser included offense of the other....
...When the officer then attempted to effectuate the arrest, appellant picked up the officer and threw him against the hood of a car, which conduct produced the second charge of resisting an officer with violence to his person. Thus, the trial court, following Section 775.021(4), Florida Statutes (1979), separately sentenced Sawyer to five years in the State Penitentiary for each of the two counts, to run consecutively....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1998 WL 633806
...ry and death, respectively, the offenses are actually different degrees of the same crime. Although the general rule is to convict for each crime committed in a criminal episode, an exception exists if the offenses are degrees of the same crime. See § 775.021(4)(b)(2), Fla....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 1996 WL 577164
...State,
662 So.2d 1248, 1249 (Fla. 3d DCA 1995), rev. denied,
670 So.2d 940 (Fla.1996). Each of the offenses in question requires proof of an element that the other does not, thus there is no double jeopardy bar to separately sentencing the defendant for each offense. §
775.021(4), Fla....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1999 WL 790652
...The State contends that when Thomas walked away from his work release, he accomplished "self-release" and was thus properly sentenced as a prison releasee reoffender. Where, as here, the language of the statute is susceptible of differing constructions, section 775.021(1) requires that we adopt the construction most favorable to the defendant....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1991 WL 216015
...We also affirm the sentence for attempted burglary, finding that the sentence imposed is a lawful probationary split sentence. A person may be convicted of and sentenced for separate offenses committed during one criminal transaction or episode subject to certain enumerated exceptions. §
775.021(4), Fla. Stat. (1989). Section
775.021(4), Florida Statutes (1989) provides that "offenses are separate if each offense requires proof of an element that the other does not... ." A court must analyze the elements of the offense without regard to the proof at trial or the accusatory pleading when faced with a double jeopardy question. State v. McCloud,
577 So.2d 939, 941 (Fla. 1991) (quoting §
775.021(4), Fla....
...Each offense, therefore, has an element which the other does not. Thus, attempted burglary and possession of burglary tools are separate offenses for which Jones may receive dual convictions and sentences unless one of the exceptions enumerated in section 775.021(4)(b) applies. Section 775.021(4) contains three exceptions....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 2006 WL 3327609
...Rubio,
917 So.2d 383, 397 (Fla. 5th DCA 2005). According to the rules of statutory construction, this means that penal statutes should be strictly construed, and "when the language is susceptible of differing constructions, it shall be construed most favorably to the accused." §
775.021, Fla....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1995 WL 321880
...ud here involved are separate and distinct criminal episodes. First, the appellant burned his mobile home with the intent to defraud the insurer. Then, at a later time and different place, he filed a false *1251 insurance claim. Accordingly, neither section 775.021(4), Florida Statutes, nor Thompson are applicable and we uphold these two convictions....
...arying degrees of the core offense of theft. The legislature did not intend for a single act of criminal fraud involving the core offense of theft to be prosecuted as separate offenses under both a specific fraud statute and the grand theft statute. § 775.021(4), Fla....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1990 WL 68708
...I concur with the majority because of Carawan and Gordon v. State,
528 So.2d 910 (Fla. 2d DCA 1988), approved sub nom. State v. Smith,
547 So.2d 613 (Fla. 1989). However, I continue to question this court's ability to decide issues of double jeopardy under subsection
775.021(4), Florida Statutes (1985), [5] by looking to the proof offered at a defendant's trial. See Crisel v. State,
561 So.2d 453 (Fla. 2d DCA 1990) (Parker, J., specially concurring). NOTES [1] The Carawan analysis has been superseded by section
775.021(4), Florida Statute (Supp....
...es sentence; therefore, it is unnecessary for the trial judge to resentence the defendant. [4] Although Singleton raised an additional point on appeal, we have considered it and have determined that it is without merit. [5] That subsection provides: 775.021 Rules of construction....
...ces 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. § 775.021, Fla....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2000 WL 650519
...1994. Because the conclusion that they occurred after that date, which results in the application of the lower, 1994, guidelines, is more favorable to the defendant, the familiar "rule of lenity" requires that he be given the benefit of that doubt. § 775.021(1), Fla....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2000 WL 309814
...Following this lead, courts that considered the question also permitted dual convictions for attempted felony murder and for the underlying felony. See Viera v. State,
532 So.2d 743, 746 (Fla. 3d DCA 1988); George v. State,
509 So.2d 972, 973 (Fla. 5th DCA 1987); McLeod v. State,
477 So.2d 5, 5-6 (Fla. 1st DCA 1985). Section
775.021(4), Florida Statutes (1997), provides an essential guide to legislative intent in this regard. See also Blockburger v. United States,
284 U.S. 299,
52 S.Ct. 180,
76 L.Ed. 306 (1932). In Boler our supreme court held that section
775.021(4) did not preclude convictions both for felony murder and for the underlying felony: The appellants argue that the 1988 amendment to the rules of construction in section
775.021(4), Florida Statutes (1991), requires this Court to recede from Enmund....
...See ch. 88-131, § 7, at 709-10, Laws of Fla. (stating a legislative intent "to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction"). As we explained in [ State v.] Smith , the 1988 amendment of section 775.021(4) was intended to override our previous decision in Carawan [v....
...hat "the legislature intended multiple punishments when both a murder and a *1138 felony occur during a single criminal episode."
476 So.2d at 167. Boler,
678 So.2d at 322 (footnote omitted). As amended by section 3, chapter 88-131, Laws of Florida, section
775.021(4), Florida Statutes, provides: (4)(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...
...State,
476 So.2d 172, 177 (Fla.1985), bodily injury is not a necessary component of attempted murder, nor is intent to murder necessarily an element of "felony causing bodily injury." At issue here are two distinct offenses, not merely degrees of the same offense "as provided by statute." §
775.021(4)(b)2, Fla. Stat. (1997). Under section
775.021(4), Florida Statutes (1997), the remaining question is whether the statutory elements of "felony causing bodily injury" are subsumed by the offense of attempted murder (or vice versa). See generally Sirmons v. State,
634 So.2d 153 (Fla.1994). This question must be answered "without regard to the accusatory pleading or the proof adduced at trial." §
775.021(4)(a), Fla....
...We had addressed Mills in the main opinion and have revised the main opinion to make reference to Boivin. Mills was a murder case. Boivin involved attempted murder but, like Mills, was decided before October 1, 1988, when chapter 88-131, section 7, at 709-10, Laws of Florida (amending section 775.021(4) to incorporate Blockburger test) took effect....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2012 WL 987400, 2012 Fla. App. LEXIS 4595
...The Supreme Court has explained that the rule of lenity requires that “[a]ny ambiguity or situations in which statutory language is susceptible to differing constructions must be resolved in favor of the person charged with an offense.” State v. Byars,
823 So.2d 740, 742 (Fla.2002); see also §
775.021(1), Fla....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal
...fendant of both a greater offense and a lesser included offense charged in a single indictment or information. State v. Monroe,
406 So.2d 1115 (Fla. 1981); State v. Hegstrom,
401 So.2d 1343 (Fla. 1981). There is, however, a state statutory bar under Section
775.021(4), Florida Statutes (1977), against sentencing a defendant so convicted on the lesser included offense conviction....
...ter offense of robbery. It is, therefore, plain that we are required under the established law to affirm Rios' conviction for second degree grand theft, but reverse the five (5) year sentence imposed thereon as being barred by Florida statutory law. § 775.021(4), Fla....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2000 WL 869395
...Muniz clearly was a "parent" of the child. See §
787.01(1)(b); Johnson,
637 So.2d 3. The kidnaping statute does not establish a special definition of "parent." Assuming that "parent" is not a plain and unambiguous concept, any interpretation of this statute must favor the defendant. See §
775.021(1), Fla....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1988 WL 63445
...rm or carrying a concealed firearm while committing a felony, are to be treated as separate offenses subject to separate convictions and sentences. Second, in the absence of a clear legislative intent, we next apply the Blockburger test [5] found in section 775.021(4), Florida Statutes (1985), [6] to determine "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." The elements of the reclassification statut...
...toward the accused. Application of such rule further supports the result we reach by our Blockburger analysis. 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), Florida Statutes (1985) [7] and our common law requires that the *303 court find that multiple punishments are impermissible....
...1986), and finding no waiver under the circumstances of this case, we will decide the double jeopardy issue. [5] The Blockburger test is a rule of statutory construction established in Blockburger v. United States,
284 U.S. 299,
52 S.Ct. 180,
76 L.Ed. 306 (1932). [6] Section
775.021(4) states: (4) Whoever, in the course of one criminal transaction or episode, commits 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. [7] Section
775.021(1) provides: (1) The provisions of the 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....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 1999 WL 393466
...court adjudicated the appellant guilty of strong armed robbery and grand theft based on the taking of the same property. We find that the dual convictions are contrary to our supreme court's holding in Sirmons v. State,
634 So.2d 153 (Fla.1994). See §
775.021(4)(b), Fla....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1989 WL 64522
...ame is true for purchase of cocaine. See Carawan v. State,
515 So.2d 161 (Fla. 1987); Dukes v. State,
528 So.2d 531 (Fla. 2d DCA 1988); Gordon v. State,
528 So.2d 910 (Fla. 2d DCA 1988). We note that these offenses occurred prior to the amendment of section
775.021(4), Florida Statutes, in 1988....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1996 Fla. App. LEXIS 6222, 1996 WL 316538
...We agree with appellant. Appellant correctly observes that the provisions of chapter 921, Florida Statutes, must "be strictly construed" and that, *534 "when the language is susceptible of differing constructions, it [must] be construed most favorably to the accused." §
775.021(1), Fla. Stat. (1993). See Flowers v. State,
586 So.2d 1058 (Fla.1991) (construction mandated by section
775.021(1) applicable to sentencing guidelines)....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2002 WL 1723878
...5th DCA 2002), the Fifth District considered this same issue and agreed that dual convictions for grand theft and exploitation of the elderly violate double jeopardy. The State acknowledges the decision in Thomason but contends that Thomason was wrongly decided because the court applied the Blockburger [2] test codified in section 775.021(4), Florida Statutes (1999), to determine whether the offenses were separate without first considering whether the legislature intended to authorize separate punishments for the two crimes in question....
..." Gordon v. State,
780 So.2d 17, 19 (Fla.2001) (quoting M.P. v. State,
682 So.2d 79, 81 (Fla.1996)). If there is no clear statement of legislative intent to authorize separate punishments for two crimes, courts apply the Blockburger test codified in section
775.021(4), to determine whether separate offenses exist....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2013 WL 3811766, 2013 Fla. App. LEXIS 11593
...The Third District noted that the trial court properly applied the plain language of the statute. Id. The court also noted that “[i]f there were any doubt (and we think there is none), ‘when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.’ ” Id. (quoting § 775.021(1), Fla....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1995 WL 10440
...porated within the crime of sexual activity as alleged in the information. The state argues that it may divide the sexual encounter into two sequential offenses under Blockburger v. United States,
284 U.S. 299,
52 S.Ct. 180,
76 L.Ed. 306 (1932), and section
775.021, Florida Statutes (1991)....
...ategory two lesser included offense of the crime of sexual activity. Cf. Blanchard v. State,
634 So.2d 1118 (Fla. 2d DCA) (battery may be a category two lesser included offense of false imprisonment), review denied,
641 So.2d 1344 (Fla. 1994). Under section
775.021(4)(a), "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." We admit that linguistically one may be able to express these two offenses so that each seems to contain an element that the other lacks....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2000 WL 201832
designating him to be a sexual predator pursuant to section
775.21(4)(c), Florida Statutes (1997). We affirm.
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2014 WL 481180, 2014 Fla. App. LEXIS 1671
...The Florida Supreme Court has explained how courts are to distinguish “lesser” offenses from “greater” offenses as follows: In distinguishing lesser offenses from greater offenses when faced with a double jeopardy violation, this Court has stated that based upon section
775.021(4), lesser offenses “are those in which the elements of the lesser offense are always subsumed within the greater, without regard to the charging document or evidence at trial.” State v. Florida, 894 So.2d [941] at 947 [ (Fla. 2005) ] (citing State v. McCloud,
577 So.2d 939, 941 (Fla.1991) (holding that an offense is a lesser offense “for purposes of section
775.021(4) only if the greater offense ... includes the lesser offense”)). Further, section
775.021(4)(b)(3) itself states that lesser offenses are offenses “the statutory elements of which are subsumed by the greater offense.” Therefore, the statutory elements of the lesser offense must he subsumed by the statutory elements of...
...State,
718 So.2d 917, 918 (Fla. 5th DCA 1998). Because of the overlapping nature of the offenses, the offense of burglary “is a lesser degree of the same substantive crime” as home invasion robbery. Id. at 918-19 . Therefore, under the clear dictates of section
775.021(4)(b)(3) and the Pizzo test, burglary is a lesser offense than home invasion robbery, and the burglary conviction should therefore be the one vacated to avoid a double jeopardy violation....
...State,
956 So.2d 1254 (Fla. 2d DCA 2007), as well as the Fifth Dis *396 trict’s decision in McAllister,
718 So.2d at 918 , and the Fourth District’s decision in Black v. State,
677 So.2d 22 (Fla. 4th DCA 1996). Each of these cases relied on the language of section
775.021(4)(b)(3) — the statute relied upon by Pizzo — to determine that the burglary offense was subsumed into the home invasion robbery offense and thus constituted the “lesser” offense for purposes of double jeopardy analysis....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1989 WL 8337
...He contends that he was improperly convicted of both aggravated assault with a firearm and use or display of a firearm during the commission of a felony. We agree and reverse. Criminal offenses are separate offenses only if each offense requires proof of an element that the other does not. § 775.021(4), Fla....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2017 WL 729773, 2017 Fla. App. LEXIS 2537
that courts strictly construe criminal statutes. § 775,021(1), Fla. Stat. At trial, the court insfructed
CopyCited 3 times | Published | Florida 3rd District Court of Appeal
...306 (1932); see also Pizzo v. State,
945 So. 2d 1203,
1206 (Fla. 2006) (“A defendant is placed in double jeopardy where based upon the
same conduct the defendant is convicted of two offenses, each of which does not
require proof of a different element.”); §
775.021(4), Fla....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1989 WL 10932
...2873,
101 L.Ed.2d 909 (1988). Therefore, we find no error in the trial court's refusal to strike the jury panel. With regard to the second issue, we note at the outset that this court has rejected the argument advanced by the state that (1) the 1988 amendment to §
775.021, Florida Statutes, overruled Carawan v....
...nt "to determine what law may be applicable after the amendment;" (2) the statutes in effect at the time of commission of a crime control both the offenses for which a perpetrator can be convicted and the punishments which may be imposed; and (3) if § 775.021(4), Florida Statutes (1988), [1] were given retroactive effect, the result would *1304 be an increase in punishment for appellant, thereby violating the ex post facto clauses of the state and federal constitutions....
...of an armed robbery, and Count V use of a firearm during the commission of an armed kidnapping, and remand for further proceedings consistent with this opinion. WIGGINTON and NIMMONS, JJ., concur. NOTES [1] Ch. 88-131, § 7 Laws of Fla., amended § 775.021(4), Fla....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2007 WL 4480757
...nvicting appellant. Second, the State asserts the trial court properly construed section
836.05 to include injury to the victim's mental or emotional well being. This second argument has merit. Appellant contends this court is obligated, pursuant to section
775.021, Florida Statutes, to strictly construe section
836.05 in his favor. Section
775.021(1) requires that the provisions of the criminal code "be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused." §
775.021(1), Fla....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2011 Fla. App. LEXIS 20323, 2011 WL 6372961
...e use of the Blockburger 3 test “to determine whether separate offenses exist.” Id. at 19-20. Finding no clear statement of legislative intent in its review of section
800.04, the Paul court applied the codified Blockburger analysis set forth in section
775.021....
...Under the “same elements” test, each offense is considered 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.’” Id. at 1173 (quoting § 775.021(4)(a), Fla....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 2009 Fla. App. LEXIS 19775, 2009 WL 4874472
...slature intends to authorize separate punishments. Hayes v. State,
803 So.2d 695, 699 (Fla.2001). Absent a clear statement of legislative intent to authorize separate punishments for two crimes, courts employ the Blockburger [1] test, as codified in section
775.021, Florida Statutes, to determine whether separate offenses exist. Section
775.021(4) provides: (4)(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....
...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. McKinney contends that robbery and theft are simply aggravated forms of the same underlying offense. Consequently, McKinney asserts that section
775.021(4)(b)2., precluding dual convictions for "offenses which are degrees of the same offense as provided by statute," mandates a robbery conviction alone. Until recently, precedent supported McKinney's argument. In Sirmons v. State,
634 So.2d 153 (Fla.1994), our supreme court held that convictions for robbery with a weapon and grand theft arising from a single act could not stand under section
775.021(4)(b)2....
...The supreme court narrowed that holding in Gordon v. State,
780 So.2d 17, 23 (Fla.2001), concluding that courts must discern the "primary evil" that a specific offense is intended to punish in order to determine whether the offenses are degree variants of each other under section
775.021(4)(b)2....
...rising from the same criminal transaction only when the statute itself provides for an offense with multiple degrees." Id. at 1076 (quoting Paul,
934 So.2d at 1176 (Cantero, J., specially concurring)). The court explained that the exception found in section
775.021(4)(b)2....
..., which expressly identifies three degrees of grand theft and two degrees of petit theft or the homicide statute, which specifically categorizes three degrees of murder as well as multiple forms of manslaughter. Id. Only in such a circumstance would section 775.021(4)(b)2....
...ore degrees of a single offense. Id. (citing Sirmons,
634 So.2d at 156 (Grimes, J., dissenting)). By statute, robbery is not a degree of theft nor is theft a degree of robbery. As a result, utilizing the analysis mandated by Valdes, we conclude that section
775.021(4)(b)2....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 2006 WL 2190958
...parate offenses because they do not require identical elements of proof, are not degree variants of the same core offense, and aggravated battery with a deadly weapon is not always subsumed within the offense of attempted voluntary manslaughter. See § 775.021(4) Fla....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 1989 WL 99698
...The aggravated assault conviction was established by proof that Smith pointed a firearm at the victim. The use of a firearm in the commission of a felony conviction encompasses solely the same assault with the gun. One of the two convictions must be vacated because multiple convictions in this case violate section 775.021(4), Florida Statutes (1987) and Carawan v....
...e the double jeopardy clause, and we reject its legal conclusion.
459 U.S. at 369,
103 S.Ct. at 673. In Florida the state legislature has expressly stated it intends to apply a Blockburger *757 test to multiple punishments in a single trial setting. §
775.021(4)(a), Fla....
...Carawan's principle of lenity was subsequently rejected by the Florida legislature when it enacted section 7, Chapter 88-131, Laws of Florida. But this amendment does not apply to offenses committed prior to its July 1, 1988 effective date. [4] The offenses in this case predate the statutory amendment. Thus Carawan and section 775.021(4) bar conviction for both offenses in this case....
...While we sympathize with Judge Stone's viewpoint, we believe that the supreme court's language *758 in Barton is controlling. However, we certify the following question as one which will have a great effect on the administration of justice: [6] WHEN ONE OF TWO CONVICTIONS MUST BE REVERSED UNDER SECTION 775.021(4), SHOULD THE TRIAL COURT IMPOSE JUDGMENT ON THE COUNT THAT WOULD RESULT IN THE DEFENDANT RECEIVING THE LONGEST OR MOST SEVERE SENTENCE UNDER THE GUIDELINES OR OTHER APPLICABLE STATUTES (WITHOUT REGARD TO A POSSIBLE DEPARTURE SENTENC...
...to the use of a weapon or firearm. Where, as here, the underlying offense requires the use of a weapon or firearm, then the underlying offense and the ancillary offense are obviously "the same offense" and also fall within the exception provided in section 775.021(4)(b)1., Florida Statutes (1988), relating to "offenses which require identical elements of proof." Even when the underlying offense does not require the use of a weapon or firearm, because the underlying felony offense, whatever its...
...offense, the underlying felony offense is always a necessarily lesser included offense of the ancillary weapon or firearm offense and, as such, is "the same offense" within constitutional contemplation and also falls within the exception provided in section
775.021(4)(b)3., Florida Statutes (1988), relating to "offenses which are lesser offenses the statutory elements [6] of which are subsumed by the greater offense." Therefore, as to a single factual event, convictions of both the underlying felony offense and an ancillary weapon or firearm offense, under the law prior to Carawan, were prohibited; under Carawan and State v. Smith,
547 So.2d 613 (Fla. 1989) are prohibited; and, under section
775.021(4), Florida Statutes (1988), will continue to be prohibited....
....07(2), Florida Statutes, commencing long before either Carawan v. State,
515 So.2d 161 (Fla. 1987) or Missouri v. Hunter,
459 U.S. 359,
103 S.Ct. 673,
74 L.Ed.2d 535 (1983), and the difficulty of the analysis will not be eliminated or simplified by section
775.021(4)(b), Florida Statutes (1988) because, as explained later in the text of this separate opinion, of exceptions 1....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2005 WL 1812800
declared Jackson a "sexual predator," pursuant to section
775.21, Florida Statutes (2000). Subsequently, the
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 12164, 2010 WL 3238999
...4)(b) by encouraging a person less than sixteen years of age to engage in prostitution does not have to personally "touch or strike another person." We are, of course, obligated to construe criminal statutes strictly and in favor of the accused. See § 775.021(1), Fla....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2010 Fla. App. LEXIS 11696, 2010 WL 3119943
...Valdes v. State,
3 So.3d 1067, 1070 (Fla.2009) (quoting Gordon v. State,
780 So.2d 17, 19-20 (Fla.2001)). Absent a clear statement of legislative intent to authorize separate punishments for two crimes, courts employ the Blockburger test, as codified in section
775.021(4), Florida Statutes, to determine whether separate offenses exist. Id. [1] Recently in Partch v. State, ___ So.3d ___ (Fla. 1st DCA 2010), this court construed section
775.021(4) to require a three-part inquiry in any double jeopardy analysis....
...Second, the court must determine whether there is more than one distinct act upon which the offenses are predicated. Third, the court must engage in the Blockburger same-elements test, i.e., whether each offense has an element the other does not, and if so whether one of the exceptions set forth in section 775.021(4)(b) applies to preclude separate convictions and sentences....
...Smith's penetration of the victim's vagina. Because the two offenses charged in this case arise from a single criminal act within a single criminal episode, the next inquiry is whether the two offenses are the "same offense" based on the Blockburger test. § 775.021(4)(a), Fla....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1991 WL 46845
...Case law from other districts supports this position. See Rowe v. State,
574 So.2d 1107 (Fla. 2d DCA 1990); Hall v. State,
549 So.2d 758 (Fla. 3d DCA 1989); Sheppard v. State,
549 So.2d 796 (Fla. 5th DCA 1989). However, for the reasons stated below, we disagree. Cave acknowledges the amendments to section
775.021(4), Florida Statutes, found in Chapter 88-131, Section 7, Laws of Florida, *767 effective July 1, 1988....
...in Carawan v. State,
515 So.2d 161 (Fla. 1987), is no longer applicable. Nevertheless, appellant argues, separate punishments for robbery and aggravated battery are not permissible under the facts of this case. He directs attention to exception 3 to section
775.021(4)(b) which reads as follows: 3....
...The statute clearly states that offenses are separate if each offense requires proof of an element that the other does not, and that the exception only applies to lesser offenses "the statutory elements of which are subsumed by the greater offense." § 775.021(4)(a) and (4)(b)3, Fla....
...violated. Missouri v. Hunter,
459 U.S. 359,
103 S.Ct. 673,
74 L.Ed.2d 535 (1983). The legislature expressly declared its intent to convict and sentence for each criminal offense committed in the course of a single criminal episode or transaction in section
775.021....
...st be reversed,..." was decided under the law as spelled out in Carawan v. State,
515 So.2d 161 (Fla. 1987). Thus, Sheppard's reliance on Rojas is misplaced. The "same force" analysis used in Sheppard, and urged by appellant, fails to give effect to section
775.021(4)(a) enacted in 1988, as interpreted in State v....
...Smith,
547 So.2d 613 (Fla. 1989). Since a robbery may, but does not necessarily include an aggravated battery, the statutory offense of "robbery" does not "subsume" the crime of aggravated battery. Thus, the same act may be punishable as two different offenses under section
775.021(4)(a)....
...State,
567 So.2d 429 (Fla. 1990). Hall v. State,
549 So.2d 758 (Fla. 3d DCA 1989), is not authority for the result urged by the appellant because Hall was also governed by Carawan v. State,
515 So.2d 161 (Fla. 1987), which, as noted above, was overruled by section
775.021(4), Florida Statutes (1988 Supp.). State v. Smith, supra . Finally, Rowe v. State, supra , which cites only Sheppard, and expresses agreement with the analysis in that case, similarly overlooks, in our opinion, the effect of *768 section
775.021(4), and the Smith, Burton, and Porterfield decisions....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2008 WL 1883877
...1st DCA 2007) (direct appeal from sentence "imposed" after partial granting of rule 3.800(a) motion). Furthermore, if there is a question as to precisely what is meant by the rule's phrase "legal sentence imposed," we are *1256 required to apply the rule of lenity. § 775.021(1), Fla....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 1991 WL 63418
...Obtaining property in return for a worthless check will always constitute theft because the more general theft element subsumes the more specific worthless check element. We agree that double jeopardy prevents double prosecution for this same offense. AFFIRMED. DAUKSCH and GRIFFIN, JJ., concur. NOTES [1] Section 775.021, Florida Statutes (1988) and not Carawan v....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 2005 WL 2140152
process analysis to the Sexual Predator Act, section
775.21). Affirmed.
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2004 WL 2112733
...In order to determine whether two convictions constitute a violation of the principles of double jeopardy, we are required to go beyond a simple application of the test set forth in Blockburger v. U.S.,
284 U.S. 299,
52 S.Ct. 180,
76 L.Ed. 306 (1932), as codified in section
775.021, Florida Statutes (2001)....
...s of the same core offense." See Gordon v. State,
780 So.2d 17 (Fla.2001); Mitchell v. State,
830 So.2d 944, 946 (Fla. 5th DCA 2002), review denied,
845 So.2d 892 (Fla.2003). We begin our analysis with the exceptions to the Blockburger test found in section
775.021(4)(b), Florida Statutes (2001)....
...greater offense. In order to determine whether the second exception the exception for degree variants applies, one must undertake a two-step inquiry. First we must determine whether the crimes constitute separate offenses under Blockburger and section 775.021(4)(a)....
...Using this analysis, we held in Mitchell that dual convictions for attempted second-degree murder and attempted felony murder were barred by the prohibition against double jeopardy. Finally, we consider the following language of the Florida Supreme Court in Gordon: "We have held repeatedly that section 775.021 did not abrogate our previous pronouncements concerning punishments for singular homicides." (Citations omitted)....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2009 Fla. App. LEXIS 13788, 2009 WL 2972478
...ated in Blockburger v. United States,
284 U.S. 299,
52 S.Ct. 180,
76 L.Ed. 306 (1932), to this analysis. See, e.g., Gordon v. State,
780 So.2d 17 (Fla.2001), receded from, Valdes v. State,
3 So.3d 1067 (Fla.2009). The Blockburger test is codified in section
775.021(4)(a), Florida Statutes (2005), which states in part, "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 p...
...o]ffenses which require identical elements of proof[;] (2)[o]ffenses which are degrees of the same offense as provided by statute[; and] (3)[o]ffenses which are lesser offenses[,] the statutory elements of which are subsumed by the greater offense." § 775.021(4)(b)....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2002 WL 31322534
...Specifically, he argues that the state, in order to prove the armed carjacking, had to prove the burglary as well. Thus, his crime of burglary was subsumed by his crime of carjacking. *464 Although this issue appears to be one of first impression, we are guided in our analysis by section 775.021(4), Florida Statutes (2002), which states: (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, s...
...I respectfully dissent because, in my view, the crime of armed carjacking subsumes and encompasses the crime of burglary of a conveyance with an assault in this case and thus there should not be dual convictions for both crimes. I would base this decision on section 775.021(4), Florida Statutes, which incorporates the Blockburger test [1] governing federal double jeopardy jurisprudence not the constitutional provision prohibiting double jeopardy....
...State,
543 So.2d 800, 802 (Fla. 5th DCA) (Sharp, W., J., concurring), rev. denied,
554 So.2d 1170 (Fla.1989); Gordon v. State,
457 So.2d 1095, 1098 (Fla. 5th DCA 1984), approved,
478 So.2d 1063 (Fla.1985). Our Legislature has expressed its intent in section
775.021(4), Florida Statutes: (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 sep...
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2002 WL 31306664
designating him as a sexual predator. Under section
775.21(4)(c)(1)(c), Florida Statutes (Supp.1998),
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2005 WL 2513016
a sexual predator by the trial court under section
775.21, Florida Statutes (2002). We reverse the trial
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2002 WL 31267527
...to authorize separate punishments for the two crimes. Gordon v. State,
780 So.2d 17, 19 (Fla. 2001). Absent a clear statement of legislative intent to authorize separate punishments for two crimes, courts employ the Blockburger [3] test, codified in section
775.021, Florida Statutes (2000), to determine whether separate offenses exist. Id. at 19-20. Section
775.021(4) provides: (4)(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 separatel...
...the injunction and knowingly, willfully, maliciously, and repeatedly following or harassing the beneficiary of injunction). Furthermore, we conclude that in the instant case the crime of battery was subsumed by the crime of violating the injunction. Section 775.021(4)(b) provides that the intent of the legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode, but section 775.021(4)(b) 3....
CopyCited 2 times | Published | Supreme Court of Florida | 21 Fla. L. Weekly Supp. 433, 1996 Fla. LEXIS 1716
...The Blockburger test, which is also called the “same-elements” test, inquires whether each offense contains an element not contained in the other; if not, they are the same offense and double jeopardy bars subsequent punishment or prosecution. The Blockburger test has been codified in Florida at section 775.021(4), Florida Statutes (1995)....
...State v.Steams,
645 So.2d 417 , 418 (Fla.1994). For purposes of double jeopardy analysis, "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.” §
775.021(4)(a), Fla. Stat. (1991) (emphasis added). Thus, section
775.021(4)(a) prohibited us from looking at the charging document to determine whether the "felony” element of "carrying a concealed weapon while committing a felony” was armed burglary or grand theft....
...See §
810.02(2), Fla. Stat. (1991). Thus, while the “carrying a concealed weapon while committing a felony” offense requires proof of the additional element of a "concealed” weapon, armed burglary requires proof of no element that the weapons offense does not. . Section
775.021(4), Florida Statutes (1995), provides: (4)(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 adjudi- *82 catión of gu...
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2000 WL 1672027
...Count II was committed outside the applicable window period. Count III was committed inside the window period. The time frame alleged in Count I goes beyond the date when the window closed. However, the rule of lenity requires the assumption that the offense occurred within the window period. See § 775.021(1), Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2001 WL 1359204
is unconstitutional and, therefore, reverse. Section
775.21, Florida Statutes (Supp.1998), also known as
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2007 WL 4145274
...State,
884 So.2d 482, 483-84 (Fla. 5th DCA 2004). Absent a specific statement of legislative intent, the Legislature requires that courts apply the test set forth in Blockburger v. United States,
284 U.S. 299,
52 S.Ct. 180,
76 L.Ed. 306 (1932). See §
775.021(4), Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 1999 WL 641837
...itution; in the dictionary definitions cited by the majority, a procurer of a prostitute is a pimp, one who obtains a prostitute for another. Although the majority broadly construes the term `procure,' this is contrary to the rule of construction of section 775.021(1), Florida Statutes (1993), which requires that criminal offenses `be strictly construed,' so that when the language of a criminal offense `is susceptible of differing constructions, it shall be construed most favorably to the accuse...
...Section
796.07(2)(f) makes it unlawful `[t]o solicit ... or procure another to commit prostitution ...' Although neither statute defines either `solicit' or `procure' the context in which the two terms are used in section
796.07 indicates a legislative intent to distinguish between the two acts. Id.; §
775.021(1), Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2003 WL 22715824
...forth fluid or other contents. See Merriam Webster's Collegiate Dictionary (10th ed.1995). There is no one common definition of the word. The Legislature committed itself to the "Rule of Lenity" in the construction of criminal statutes, providing in section 775.021(1), Florida Statutes (1999), that "[t]he 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." See also McLaughlin v....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 1997 WL 715687
section 775.225, Florida Statutes (1995), and section
775.21(4)(b)(2), Florida Statutes (Supp.1996). The
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2011 Fla. App. LEXIS 17874, 2011 WL 5416331
...The analysis of these two statutes reveals no clear statement of legislative intent one way or the other. *558 "[A]bsent an explicit statement of legislative intent to authorize separate punishments for two crimes, application of the Blockburger `same-elements' test pursuant to section 775.021(4) ....
...Gaber v. State,
684 So.2d 189, 192 (Fla.1996) (footnote omitted); see also Valdes,
3 So.3d at 1070 ("`Absent a clear statement of legislative intent to authorize separate punishments for two crimes, courts employ the Blockburger test, as codified in section
775.021, Florida Statutes (1997), to determine whether separate offenses exist.'" (quoting Gordon v. State,
780 So.2d 17, 19-20 (Fla.2001), receded from on other grounds by Valdes )). Therefore, the next step in the double jeopardy analysis is the application of the Blockburger [3] test codified in section
775.021(4), Florida Statutes, [4] which provides: (4)(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,...
...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.[ [5] ] The Legislature has clearly expressed its intent in section 775.021(4)(a) that an individual who commits an act or acts that constitute separate criminal offenses committed in a single transaction shall be punished separately for each offense....
...(reckless driving) and
322.34(6)(b) (driving with a suspended license), require proof of an element that the other does not. Hence the Legislature intends separate convictions and sentences for each offense unless the offenses fall into one of the enumerated *559 exceptions listed in section
775.021(4)(b)....
...enhancement to the penalty for DWI because death was an element of the offense. The fact that Appellant's conviction for fleeing or eluding was based upon a death, rather than serious bodily injury, is irrelevant to the double jeopardy analysis. See § 775.021(4)(a), Fla....
...oof adduced at trial").
51 So.3d at 648. Therefore, we do not believe that the analysis of Cooper, Chapman, or Houser applies here. Moreover, if the legislative intent is clear from the statute or from application of the Blockburger test codified in section
775.021(4) to punish for each offense, it does not matter that the offenses stem from the same wrongful conduct....
...We conclude that there is no clear statement of legislative intent in the two statutes at issue to either authorize or prohibit separate convictions and punishments based on a single injury to the same victim. Therefore, the Blockburger analysis under section 775.021(4) must be utilized, and under that analysis, there is no double jeopardy violation here....
...ORFINGER, C.J., and JACOBUS, J., concur. NOTES [1] §
322.34(6)(b), Fla. Stat. (2009). [2] §
316.192(3)(c)2., Fla. Stat. (2009). [3] Blockburger v. United States,
284 U.S. 299,
52 S.Ct. 180,
76 L.Ed. 306 (1932). [4] See Valdes,
3 So.3d at 1070. [5] Section
775.021(4) was originally enacted in 1976 to replace "the common law `single transaction rule,' which limited a conviction to only the most serious offense arising from a single criminal transaction....
...he accusatory pleading or the proof adduced at trial." Ch. 83-156, § 1, at 556, Laws of Fla. This sentence was added in an effort to expressly incorporate the Blockburger same-elements test. Kelso,
961 So.2d at 280. Subsequent amendments renumbered section
775.021(4) to
775.021(4)(a) and added section
775.021(4)(b) to emphasize preference for the Blockburger test over the rule of lenity with three exceptions....
CopyCited 2 times | Published | Supreme Court of Florida
be construed most favorably to the accused." §
775.021(1), Fla. Stat. (2017) ; see also Paul , 129 So
CopyCited 2 times | Published | Supreme Court of Florida | 1991 WL 77652
...The district court certified the following to be a question of great public importance: [*] When a double jeopardy violation is alleged based on the crimes of sale and possession (or possession with intent to sell) of the same quantum of contraband and the crimes occurred after the effective date of section 775.021, Florida Statutes (Supp....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal
...CASANUEVA, J., Concurs in part with an opinion.
SALARIO, Judge, Concurring specially.
5Even if the statute were susceptible of differing constructions, which it is
not, this court would be required to construe it most favorably to the accused. See §
775.021(1), Fla....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 1992 WL 111579
...[13] REVERSED and REMANDED. GOSHORN, C.J., and DAUKSCH, J., concur. NOTES [1] Section
893.02(4), Fla. Stat. [2] Thus "the language [in the statute] is susceptible of differing constructions" and sets the stage for a judicial interpretation of the statute, see §
775.021(1), Fla....
...Such a "jumping from the frying pan into the fire" defense would be rarely, if ever, asserted. [7] That scenario is the plot of most classic children's stories, i.e., Aesops Fables, Uncle Remus (Brer Rabbit), as well as The Three Little Pigs, Little Red Riding Hood, etc. [8] See § 775.021(1), Fla....
...[12] To construe the second "WHICH" proviso in section
817.564(1), Florida Statutes, ("which is subject to abuse") to relate to genuine controlled substances under chapter 893, as the State contends, would be to construe this statutory ambiguity most favorable to the State, rather than the accused, contrary to section
775.021(1), Florida Statutes, and general rules of statutory construction, and make that clause either nonsensically redundant or cause it to suggest that some substances controlled by Chapter 893 are subject to abuse and some are not and tha...
...cribed in Chapter 893 which are subject to abuse can be illegally imitated. All substances controlled by Chapter 893 are controlled because all such substances are "subject to abuse". [13] Our disposition of this case applying the rules and statute (§ 775.021(1), Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 14 Fla. L. Weekly 1279, 1989 Fla. App. LEXIS 2932, 1989 WL 53357
...See also Gordon v. State. We note that in this case we are presented solely with a single act episode and not with the possibility of multiple criminal acts or events. See generally Carawan v. State; Gordon v. State. Were it not for the amendment to section 775.021(4) subsequent to Carawan , we might well have deemed this single act factor significant in evaluating whether the legislature would have intended the arguably unreasonable result in this case....
...Therefore, dual convictions and punishments are permissible. Possession is not required to purchase, and purchase is not required to possess contraband. The supreme court itself in Carawan recognized that the sale of drugs can constitute a separate crime from possession. Id. at 170 . Section 775.021(4), Florida Statutes (Supp.1988), as amended, provides: 775.021 Rules of construction.— [[Image here]] (4)(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...
...Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense. The third prong of the Carawan analysis, the application of the rule of lenity, must now be read in accordance with the legislative intent expressed in the language of section
775.021(4), even if there may be an independent reasonable basis for arriving at a contrary intent. Here none of the exceptions in (4)(b)l, 2, or 3 apply. In State v. Barritt,
531 So.2d 338, 339-41 (Fla.1988), Justice Shaw, concurring specially, noted that section
775.021(4), as amended, had a substantial impact on prior supreme court opinions, including Carawan....
...tions to the supreme court: 1. DO CONVICTIONS FOR THE CRIMES OF PURCHASE OF A CONTROLLED SUBSTANCE AND POSSESSION OF A CONTROLLED SUBSTANCE ARISING OUT OF AN ACT INVOLVING ONLY ONE ROCK OF COCAINE CONSTITUTE DOUBLE JEOPARDY? 2. WHAT IS THE AFFECT OF SECTION 775.021(4), FLORIDA STATUTES (SUPP.1988) ON THE APPLICATION OF THE ANALYSIS IN CARAWAN V....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 1988 WL 50142
...WIGGINTON, Judge. This appeal is before us from a judgment of conviction and sentence for two counts of battery. The issue raised is whether appellant was properly adjudicated guilty and sentenced to two battery offenses arising out of a criminal transaction under section 775.021(4), Florida Statutes (1985)....
...the category two lesser included offense to the charge of false imprisonment. Appellant was sentenced to one year in county jail per offense, the sentences to be served concurrently. In challenging his convictions and sentences, appellant urges that section
775.021(4) would prohibit appellant's being adjudicated guilty and sentenced for the two batteries as those offenses were committed in the course of one criminal transaction and the statutory elements are one and the same without regard to the information and the evidence introduced at trial. However, in so urging, we believe appellant has advanced an application of section
775.021(4) that was recently discouraged by the supreme court in Carawan v. State,
515 So.2d 161 (Fla. 1987). Therein, the supreme court noted that the Blockberger test, [2] as codified in the last sentence of section
775.021(4), must not be applied "blindly, mechanically, and exclusively to every multiple-punishments problem."
515 So.2d at 166. Rather, the court carefully observed that section
775.021(4) was intended to be treated solely as a rule of construction to aid in the determination of legislative intent when a court is faced with a facially ambiguous statute and must resolve the issue of whether the legislative branch intended to punish the same offense under two different statutes. For example, section
775.021(4) would ordinarily prevent a situation wherein a defendant is convicted of and sentenced for both the main offense and the necessarily lesser included offense. Significant to the supreme court's analysis in Carawan is the fact that section
775.021(4) is employed only if the statute is facially ambiguous....
..."Act" was defined as being a "discrete event arising from a single criminal intent." Id. The court went on to define a criminal transaction as a "related series of acts." Applying the above observations to the instant case, it is this Court's conclusion that section 775.021(4) would not bar multiple punishments here....
...To summarize, in this case appellant was charged with distinct and separate criminal offenses which the jury subsequently reduced to lesser offenses by their verdict, the lesser offenses being both legally proper and supported by the evidence. Accordingly, we do not consider this an instance in which section 775.021(4) is applicable. AFFIRMED. BOOTH and ZEHMER, JJ., concur. NOTES [1] Section 775.021(4) provides: Whoever, in the course of one criminal transaction or episode, commits 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....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2000 WL 627657
Florida Sexual Predator Act, as codified at section
775.21(4), Florida Statutes (1997), does not apply
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2005 WL 545130
...to commit burglary or trespass, (3) possession of a firearm by a person convicted of a felony, and (4) carrying a concealed weapon. All of the offenses in Borges were committed in a single criminal episode. We held that the legislature, by enacting section 775.021(4), "intended to authorize multiple convictions and separate sentences when two or more separate criminal offenses are violated as part of a single criminal transaction, except for lesser included offenses.......
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 1993 WL 62237
...red subsequent to the trial in this case. Finally, we find no merit in the defendant's contention that he could not be sentenced separately for each of the crimes for which he was convicted, with each term of imprisonment to run consecutively. Under Section 775.021(4)(a), Florida Statutes (1989), a defendant may be sentenced separately for criminal offenses arising, as here, in the course of one criminal transaction or episode, which sentences may be imposed concurrently or consecutively, absent certain exceptions. Contrary to the defendant's contention, the six convictions for false imprisonment do not qualify for the statutory exception as to "[o]ffenses which require identical elements of proof." § 775.021(4)(b)(1), Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2012 WL 716136, 2012 Fla. App. LEXIS 3735
...6 (Fla.1993), superseded by statute on other grounds as stated in Ritchie v. State,
670 So.2d 924 (Fla.1996). In addition, the rule of lenity requires that when language of a statute is susceptible of differing constructions, it must be construed most favorably to the accused. See §
775.021(1), Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2011 Fla. App. LEXIS 4362, 2011 WL 1135284
...se. North Carolina v. Pearce,
395 U.S. 711, 717 ,
89 S.Ct. 2072 ,
23 L.Ed.2d 656 (1969). In determining whether a defendant has been exposed to double jeopardy as a result of multiple convictions, courts employ the Blockburger 2 test, as codified in Section
775.021, Florida Statutes (2007)....
...ghts will have been violated if he is convicted of two offenses and (1) the offenses require identical elements of proof; (2) the offenses are degrees of the same offense; or (3) one of the offenses is a lesser included offense of the other offense. § 775.021(4)(b), Fla....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2013 WL 1234222, 2013 Fla. App. LEXIS 5139
...This definition supports Appellant’s construction of the statute, although the State’s proffered construction is not unreasonable. Under statutory lenity principles, however, when a criminal statute is susceptible of more than one construction, we are compelled to construe the statute most favorable to Appellant. § 775.021(1), Fla....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 2003 WL 1524431
...We strike Count VI, possession of a firearm while committing a criminal offense. The defendant was charged with committing this crime in conjunction with committing the offenses of armed burglary and armed robbery (Counts II-IV). Since Count VI is subsumed within Counts II-IV, we strike it. See § 775.021(4)(b)3., Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2002 WL 429276
...ted double jeopardy because the two convictions arose out of a single episode. We agree with appellant's argument and reverse his conviction for attempted sexual battery. Attempted sexual battery is a lesser included offense of sexual battery. Under section 775.021(4)(b), Florida Statutes (2000), if one offense is a lesser included offense of another then a defendant may not be convicted of both if the offenses were committed in the course of one criminal episode or transaction....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 1998 WL 106979
Walk declared a sexual predator pursuant to section
775.21(4), Florida Statutes. The trial court granted
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2001 WL 627433
...t habitual [1] or third-time habitual felony offender [2] , the decision not to reference "attempts" in the statute should be afforded significance. Finally, the rule of lenity directs interpretation of any ambiguity to the benefit of the defendant. § 775.021, Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2012 WL 2010866, 2012 Fla. App. LEXIS 9074
...there are any “specific, clear and precise statements of legislative intent.” Valdes,
3 So.3d at 1071 . Absent a clear statement of legislative intent in the criminal offense statutes themselves, courts employ the Blockburger 1 test, codified in section
775.021(4), Florida Statutes, to determine whether separate offenses exist. Id. at 1070-72 . Section
775.021(4)(a) provides that offenses committed in “the course of one criminal transaction or episode” are separate offenses only “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.” In section
775.021(4)(b), the legislature has stated that its intent “is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction.” There are three enumerated exceptions to this rule of construction: 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. §
775.021(4)(b), Fla....
...Neither statute contains any “specific, clear, and precise” statement of the legislative intent to authorize separate punishments for the two offenses when they arise out of the same criminal transaction. 2 See Valdes,
3 So.3d at 1071 . *1062 Thus, we look to section
775.021(4) to discern the legislature’s intent....
...The felony retail theft offense, however, contains an element that is not an element of the third-degree grand theft, namely that the defendant “coordinates the activities of one or more individuals in committing the offense.” 3 Thus, the exception enumerated in section 775.021(4)(b)3 is applicable as the statutory elements of third-degree grand theft are subsumed by the felony retail theft in concert with others offense....
...preme Court’s ruling in Valdes,
3 So.3d at 1067 , because the two offenses are found in separate statutory provisions. The state’s reliance on Valdes is misplaced, however, because the supreme court in Valdes only addressed the interpretation of section
775.021(4)(b)2, which applies to *1063 “[ojffenses which are degrees of the same offense as provided by statute.” Our decision here is based on section
775.021(4)(b)3 as well as the definition of “separate offenses” as defined in section
775.021(4)(a)....
...of that the other does not. Robbery requires that the State show that “force, violence, assault, or putting in fear was used in the course of the taking,” and grand theft requires that the State show the value of the property taken. Accordingly, section 775.021(4)(b)l is inapplicable. Additionally, because neither offense is wholly subsumed by the other, neither is a necessarily included offense of the other. Therefore section 775.021(4)(b)3 is also inapplicable....
...usly placed on the statute is presumed to have been adopted in the reenactment.”). Nevertheless, it is unclear whether the supreme court’s interpretation of the retail theft statute is still authoritative after Valdes given that paragraph (b) of section 775.021(4) was added in 1988, several years after the Emshwiller opinion....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2007 WL 1610169
...*1281 Under the test found in Blockburger v. United States,
284 U.S. 299, 304,
52 S.Ct. 180,
76 L.Ed. 306 (1932), [1] "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 is codified in section
775.021(4)(a), Florida Statutes....
...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. § 775.021(4)(b), Fla....
...utes the other statute for which Cruz was convicted. "However, subsection (4)(b)(3) applies only to necessarily lesser included offenses listed in Category 1 of the Schedule of Lesser Included Offenses. . . ." Florida,
894 So.2d at 947 (citing to section
775.021(4)(b)(3), Fla....
...[3] Sub-section (1), also known as the rule of lenity, reads: "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 favorable to the accused." § 775.021(1), Fla....
CopyCited 2 times | Published | Supreme Court of Florida | 2014 WL 2516154, 2014 Fla. LEXIS 1812
...947.149, prior to serving the
mandatory minimum term of imprisonment.”).
- 10 -
Moreover, if there is any ambiguity in the language of section
775.082(3)(a)(4)(a)(II), we must construe it in favor of the defendant.
See §
775.021(1)....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2008 WL 2386435
...Although I admit that the decisional law on this point is confusing and difficult to reconcile, I think the statutory exception on which the panel relied in Lopez-Vazquez is not applicable here. It prohibits separate punishments when the two offenses are "degrees of the same offense as provided by statute. " § 775.021(4)(b)(2), Fla....
CopyCited 2 times | Published | Supreme Court of Florida | 1991 WL 101178
...The district court certified the following to be a question of great public importance: [*] When a double jeopardy violation is alleged based on the crimes of sale and possession (or possession with intent to sell) of the same quantum of contraband and the crimes occurred after the effective date of section 775.021, Florida Statutes (Supp....
CopyCited 2 times | Published | Supreme Court of Florida | 1991 WL 101179
...The district court certified the following to be a question of great public importance: [*] When a double jeopardy violation is alleged based on the crimes of sale and possession (or possession with intent to sell) of the same quantum of contraband and the crimes occurred after the effective date of section 775.021, Florida Statutes (Supp....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2014 WL 2599901, 2014 Fla. App. LEXIS 9013
...If the Court finds that the charges arose from the same criminal episode and were not predicated on distinct acts, then the third step is to determine whether each offense has an element the other does not, i.e., the Blockburger 2 same-elements test as codified in section 775.021(4), Florida Statutes, to determine whether separate offenses exist....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 1992 WL 126649
...Possession is a lesser-included offense of possession with intent to sell the same quantum of contraband. Albury v. State,
585 So.2d 509 (Fla. 3d DCA 1991). The state's reliance on State v. McCloud,
577 So.2d 939 (Fla. 1991) is misplaced as McCloud held that possession was not a lesser-included offense of sale under amended section
775.021(4)(b), Florida Statutes (Supp....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2012 WL 1956422, 2012 Fla. App. LEXIS 8800
...Jury Inst; (Crim) 15.1 (petit theft listed as a Category 1 lesser included offense of robbery). Double jeopardy principles prohibit convictions for “[ojffenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.” § 775.021(4)(b)3., Fla....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 1994 WL 236170
...In Dixon, the Supreme Court overruled Grady and receded from the "same conduct" test, holding that the "same elements" test formulated in Blockburger v. U.S. [4] would control in double jeopardy determinations. The Blockburger test, as codified in section 775.021(4), Florida Statutes (1991), provides that 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....
CopyCited 2 times | Published | Supreme Court of Florida | 27 Fla. L. Weekly Supp. 621, 2002 Fla. LEXIS 1468
classify J.M. as a sexual predator, pursuant to section
775.21, Florida Statutes (2000), also known as “The
CopyCited 2 times | Published | Supreme Court of Florida
leads to a significantly different result. See §
775.021(1), Fla. Stat. (2017) ; see also Crews v. State
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2002 WL 1466603
...ual circumstances." Blakley,
746 So.2d at 1186-87. The defendant also argues that the rule of lenity dictates a reversal as it would require the application of guidelines resulting in the lowest sentence. We disagree. The rule of lenity, codified in section
775.021(1), Florida Statutes (2001), provides that "[t]he 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 favo...
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2009 WL 32416
...urs under which the child may be placed in custody at the JPO's discretion prior to the detention hearing. See §
985.26(2) ("A child may not be held in ... detention care under a special detention order for more than 21 days...." (emphasis added)); §
775.021(1), Fla. Stat. (2008) (holding that penal statutes "shall be strictly construed" and that any ambiguities "shall be construed most favorably to the accused"); see also A.M.P. v. State,
927 So.2d 97, 100 (Fla. 5th DCA 2006) (applying rule of lenity in section
775.021(1) in juvenile case); G.S. v. State,
761 So.2d 1229, 1230 (Fla. 3d DCA 2000) (applying strict construction provision of section
775.021(1) in juvenile case)....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2007 WL 188415
...ncing created a double enhancement. He relies on Hale v. State,
630 So.2d 521 (Fla.1993), and argues that he was convicted under habitual offender statutes. The State responds that the trial court had discretion to impose consecutive sentences under section
775.021....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 1991 WL 117
...2d DCA 1989) (consecutive mandatory minimum sentences proper for conspiracy to traffic and trafficking in cocaine where conspiracy was much broader in scope, occurred at separate time, and was not part of same criminal episode). The state's reliance on section 775.021(4)(a), Florida Statutes (Supp....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 1992 WL 21077
...with intent to commit an assault while armed, being based on the single act of pushing the victim into her car at knifepoint, are in violation of the statutory prohibition against multiple convictions for offenses having identical elements found in section 775.021, Florida Statutes (1989), and in violation of the state constitutional prohibition against double jeopardy....
CopyCited 2 times | Published | Supreme Court of Florida | 30 Fla. L. Weekly Supp. 105, 2005 Fla. LEXIS 265
...State,
780 So.2d 17, 19-20 (Fla.2001). Under Blockburger , dual convictions are authorized only if each offense contains an element that the other does not. See id. at 20; Gaber v. State,
684 So.2d 189, 192 (Fla.1996). The Blockbur-ger test is codified in section-
775.021(4)(a), Florida Statutes (2004). Section
775.021(4) provides in full: (4)(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 s...
...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. Under section 775.021(4)(a) and Blockburger , multiple convictions for an act or acts in a criminal episode are unauthorized if each offense does not contain at least one element distinct from the other offenses. Under section 775.021(4)(b), multiple convictions are unauthorized if the offenses fall within one of the three statutory exceptions to the requirement of separate convictions and sentences. 2 To apply section 775.021(4), we must determine the elements of the two offenses....
...defendant’s act of shooting the victim during a robbery. See
780 So.2d at 18, 25 . We concluded that each offense contained an element not contained in the others, and that none of the three exceptions to the presumption of multiple convictions in section
775.021(4)(b) applied....
...he intentional infliction of bodily harm for aggravated battery, making the elements congruent. The State responds that although the act may be the same, the elements of the crimes differ. The State is correct. Under the Blockburger test codified in section 775.021(4)(a), attempted second-degree murder and aggravated battery with a deadly weapon each has an element distinct from the other....
...to constitute aggravated battery. See Schirmer,
837 So.2d at 589 . Thus, even apart from the additional elements of the law enforcement officer victim in count VI and the use of a firearm in count VII, the offenses are separate under Blockburger and section
775.021(4)(a)....
...Victim contact is not a required element of *947 proof for attempted second-degree murder; the requirement of attempted second-degree murder that the defendant’s act could have caused death is not a required element of aggravated battery. The respondent does not argue that dual convictions are unauthorized under section 775.021(4)(b)(l). Leaving aside section 775.021(4)(b)(2) for the moment, the next exception we consider is in subsection (4)(b)(S), which applies to “[o]ffenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.” The respondent assert...
...of -the lesser offense are always subsumed within the greater, without regard to the charging document or evidence at trial. See State v. McCloud,
577 So.2d 939, 941 (Fla.1991) (holding that “an offense is a lesser-included offense for purposes of section
775.021(4) only if the greater offense necessarily includes the lesser offense”)....
...t with the stabbing being committed as part of the attempted second degree murder.” 725 So.2d at 421 . The Fifth District in Schirmer expressly declined to follow Gresham , concluding, in accord with this Court’s precedent, that the exception in section
775.021(4)(b)(3) applies only to Category 1 or necessarily lesser included offenses, in which the pleadings and evidence are irrelevant. See Schirmer,
837 So.2d at 588-89 . 3 The Fifth District’s conclusion that section
775.021(4)(b)(3) does not preclude dual convictions of aggravated battery and attempted second-degree murder is correct. The final potential statutory bar to dual convictions that must be addressed is section
775.021(4)(b)(2), which is not discussed by either the Fourth District in this case or the Fifth District in Schirmer ....
...The relationship between aggravated battery and attempted homicide is different than that between aggravated battery and actual, not attempted, homicide. Id. at 173 (Shaw, J., dissenting), quoted in Gordon,
780 So.2d at 23 . Gordon controls our application of section
775.021(4)(b)(2) to the convictions of both aggravated battery on a LEO in count VI and attempted second-degree murder with a firearm in count VII....
...The evil of battery omits lethal potential, and the evil of attempted second-degree murder omits victim contact. Thus, the two crimes are not merely degree variants of the same core offense, and therefore do not come within the exception to the requirement of separate convictions set out in section 775.021(4)(b)(2)....
...Accordingly, the offenses of aggravated battery on a law enforcement officer and attempted second-degree murder with a firearm do not violate the constitutional ban on double jeopardy and are not exempt from the requirement of separate convictions under section 775.021(4), Florida Statutes....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 1995 WL 608509
...t cannot dismiss the charges against him. Even if the statutes could somehow be interpreted in the manner urged by the state, it would mean that the statutes are susceptible of different interpretations. Under those circumstances our lenity statute, section 775.021(1), Florida Statues (1993), would require the construction most favorable to appellees....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 1989 WL 109514
...Accordingly, Porterfield's convictions and sentences are affirmed. Because of the conflict between this decision and the decisions of the Second and Fifth District Courts of Appeal, we certify to the Florida Supreme Court the following question: Under the provisions of § 775.021(4)(b), Fla....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 1998 WL 909803
775.22, Florida Statutes (1993). Pursuant to section
775.21(4)(a), Florida Statutes (Supp.1996), Florida
CopyCited 2 times | Published | District Court of Appeal of Florida | 1997 Fla. App. LEXIS 13962, 1997 WL 761982
...In this case, the trial court may have been attempting to avoid a double jeopardy problem. We note that at one time in this state our supreme court ruled that a defendant could not be convicted of selling and possessing the same quantum of contraband. 4 However, after the amendment to section 775.021(4), Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2012 WL 3192726, 2012 Fla. App. LEXIS 13202
...contains its own specific enumerated sentence. Based upon our analysis, we need not reach this argument. . Under the rule of lenity, "when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.” § 775.021(1), Fla....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2011 Fla. App. LEXIS 13824, 2011 WL 3849615
...n and sentence for home-invasion robbery. Both of the offenses at issue were committed in the same criminal episode and stemmed from a single uninvited entry into the victim's home. Based on the constitutional prohibition against double jeopardy and section
775.021(4), Florida Statutes (2009), a defendant may not be convicted of and sentenced for two offenses that occur in the same criminal episode unless each offense contains an element the other does not. Gaber v. State,
684 So.2d 189, 191 (Fla.1996). This analysis focuses on the elements of the crime "without regard to the accusatory pleading or the proof adduced at trial." §
775.021(4); Gaber,
684 So.2d at 190....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 2007 WL 2428414
...kidnapping and in count three of attempted felony murder. The first step of the double jeopardy analysis is to inquire "whether each offense has an element that the other does not." Gordon v. State,
780 So.2d 17, 20 (Fla. 2001) (citations omitted); §
775.021(4)(a), Fla....
...The exceptions 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. § 775.021(4)(b), Fla....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 1998 WL 518503
classifying him as a sexual predator pursuant to section
775.21-23, Florida Statutes (1993), the Sexual Predators
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 2009 Fla. App. LEXIS 11587, 2009 WL 2513839
...iod of time for trial is invalid and shall be stricken on motion of the prosecuting attorney. (emphasis added). Alternately, he argues subsection (h) of Rule 3.191 expressly conflicts with subsection (p)(2), such that, under the rules of lenity, see § 775.021(1), Fla....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 12169, 2010 WL 3239003
...tatutory language must be strictly construed in favor of the defendant. See Carpenter v. State,
785 So.2d 1182, 1205 (Fla.2001). Especially in light of the statutory requirement that we interpret criminal statutes strictly in favor of the defendant, §
775.021, we conclude that the out-of-state offense referred to in section
775.082(9)(a) must be interpreted to require that the elements of the out-of-state offense would be sufficient for a conviction under a Florida statute that is punishable as a felony....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2004 WL 1836111
accordance with the Florida Sexual Predators Act, section
775.21, Florida Statutes (2003). He contends that
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 2000 WL 1154006
...The applicable statute states, "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...." § 775.021(4)(a), Fla. Stat. (1997). "The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction...." Id. § 775.021(4)(b)....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 1999 WL 606475
...than one offense involving penetration is before the court for sentencing. AFFIRMED. DAUKSCH and PETERSON, JJ., concur. NOTES [1] §
794.011(3), Fla. Stat. (1997). [2] §
810.02(2)(b), Fla. Stat. (1997). [3] §
810.02(3), Fla. Stat. (1997). [4] See §
775.021, Fla....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 1997 WL 162740
...d to thefts." Thompson v. State,
585 So.2d 492, 494 (Fla. 5th DCA 1991), approved,
607 So.2d 422 (Fla.1992). The state charged and proved a single attempt by appellant to obtain property (money) of a single victim by cashing a forged check.... *1382 Section
775.021(4)(b) bars dual convictions under these statutes for the same act, in these circumstances....
...is area. Our Supreme Court, in Gaber v. State,
684 So.2d 189 (Fla.1996), said: Thus, absent an explicit statement of legislative intent to authorize separate punishments for two crimes, application of the Blockburger "same-elements" test pursuant to section
775.021(4), Florida Statutes (1993), is the sole method of determining whether multiple punishments are double jeopardy violations....
...As we discussed above, the elements of grand theft and armed burglary require separate proof, and thus Gaber's conviction for both offenses does not violate principles of double jeopardy. Id. at 192 (citation omitted). The supreme court also made it clear that: "Section
775.021(4) is a codification of the Blockburger test, sometimes referred to as the same-elements test, which inquires whether each offense contains an element not contained in the other." State v. Maxwell,
682 So.2d 83, 84 (Fla.1996). The supreme court reemphasized its holding in a more recent case, stating: "In applying section
775.021 to a single criminal transaction or episode, we look to see whether the episode constitutes more than one separate criminal offense, State v....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 1999 WL 212801
...ne is concerned, is "unclear." Hayes,
720 So.2d at 1096. Appellees then argue that when the language of a penal statute "is susceptible of *814 differing constructions, it shall be construed most favorably to the accused," citing our lenity statute, section
775.021(1), Florida Statutes, Perkins v....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2004 WL 912376
designation as a sexual predator pursuant to section
775.21, Florida Statutes (2002), Florida's Sexual
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 1990 WL 52762
...88-16326 for offenses occurring on August 1, 1988, after the effective date of chapter 88-131, section 7, Laws of Florida. The statute in its amended version permits dual convictions and sentences for offenses based on one act unless the crimes fit into one of the three enumerated categories of section 775.021(4)(b)....
...In Gordon, we discussed the elements of the crimes of sale and possession with intent to sell and the supreme court affirmed in Smith. Under that analysis, we find the crimes committed on August 1, 1988, do fit into the category of "subsumed elements," the third category of section 775.021(4)(b)....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 5283, 2010 WL 1559096
...Principles of statutory construction require that the statute's words be afforded their plain meaning, and, if there is any ambiguity, such ambiguity must be resolved in favor of the defendant (the rule of lenity). See, e.g., Gonzalez v. State,
941 So.2d 1226, 1229 (Fla. 5th DCA 2006); see also §
775.021(1), Fla....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 1990 WL 48652
...1988), the Florida Supreme Court held that the legislature did not intend to punish a defendant twice for the single act of displaying or carrying a firearm while committing a felony. He reasons that the result in Hall is not altered by the legislature's amendment to section 775.021, Florida Statutes (1987), which permits conviction for separate offenses that are based upon a single act. The state responds that Hall v. State is no longer good law in light of the amendment to section 775.021(4)....
...As the Florida Supreme Court has recently noted, the double jeopardy clause does nothing more than prevent the imposition of greater punishment than the legislature intended. Thus, the sole issue is legislative intent. See State v. Smith,
547 So.2d 613, 614 (Fla. 1989). Prior to the 1988 amendment to section
775.021(4), legislative intent was determined through application of Carawan v....
...clear and specific statement of the legislature's intent to separately punish must control; (2) absent such a statement, the court must apply the test contained in Blockburger v. U.S.,
284 U.S. 299,
52 S.Ct. 180,
76 L.Ed. 306 (1932), as codified in section
775.021(4), to determine whether the offenses are separate [1] ; (3) if the Blockburger test indicates that the offenses are equivalent, then separate punishment is presumed improper; (4) if the Blockburger test indicates that the offenses ar...
...ts are presumed intended, unless there is evidence of a contrary legislative intent; (5) if Blockburger suggests that the offenses are separate, but a reasonable basis exists for concluding that there is a contrary intent, then the rule of lenity in section
775.021(1) requires that the court *313 find that multiple punishments are impermissible. Carawan, supra; Wheeler v. State,
549 So.2d 687, 689 (Fla. 1st DCA 1989). Following the issuance of Carawan, the legislature amended section
775.021(4), as follows: (4)(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 separa...
...Rather, Hall concluded that the legislature did not intend to separately punish the carrying or display of a firearm where such action was already the basis for enhancing the robbery offense. Hall offers little guidance in the wake of the recent amendment to section 775.021(4)....
...s." State v. *315 Smith, supra, at 616. Such an application of the Blockburger test was performed in Gibson, and the result indicates that separate punishment is permissible. In short, it appears that Gibson has been resuscitated by the amendment to section 775.021(4)....
...ng an escape while armed contain the element essential to the fifth offense of displaying a firearm while committing a felony. Thus, the presence of a firearm during the commission of the foregoing felonies forecloses, under either Blockburger or section 775.021(4)(a), the separate offense of displaying a firearm....
...[5] Despite this reservation, we affirm appellant's convictions. SMITH and THOMPSON, JJ., concur. NOTES [1] The Blockburger test finds that offenses are separate when each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial. See § 775.021(4), Fla....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2012 Fla. App. LEXIS 5598, 2012 WL 1216266
...ts committed within the same criminal transaction. McKinney v. State,
51 So.3d 645, 647 (Fla. 1st DCA 2011) (internal quotations omitted). The governing law on whether a defendant should be punished for two crimes within a single criminal episode is section
775.021(4), Florida Statutes (2010), 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 adjudicatio...
...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 Partch v. State,
43 So.3d 758, 760 (Fla. 1st DCA 2010), we explained that section
775.021 requires a three step inquiry to determine whether the defendant’s convictions violate the prohibition against double jeopardy....
...ere predicated on distinct acts. Id. Lastly, if the charges were not predicated on distinct acts and have occurred within the same criminal transaction, the third step is to determine if the charged offenses survive a same element test as defined by section 775.021, commonly referred to as the Blockburger 1 test....
...predicated on distinct acts that occurred within the same criminal transaction, we must determine whether resisting an officer with violence and resisting an officer without violence survive the Block-burger test. The Blockburger test is defined by section 775.021(4)(a), and provides that if each charged offense has an element that the other does not, then there is no double jeopardy violation. However, section 775.021(4)(b) sets forth three exceptions to this general rule: (1) offenses which require identical elements of proof; (2) offenses which are degrees of the same offense as provided by statute; and (3) offenses which are lesser offenses, the statutory elements of which are subsumed by the greater offense....
...Multiple convictions for offenses that fall within the statutory exceptions violate the constitutional provisions that protect against double jeopardy. 2 In Jones v. State,
764 So.2d 659, 660 (Fla. 1st DCA 2000), an analogous case, we applied the second statutory exception of section
775.021(4)(b) to find a double jeopardy violation....
...Under these circumstances, appellant could not be convicted of both resisting an officer with violence and resisting an officer without violence. Jones,
764 So.2d at 660 . The Fifth District, in another similar case, applied the third statutory exception of section
775.021(4)(b) to find a double jeopardy violation....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2012 WL 3822100, 2012 Fla. App. LEXIS 14870
...y child under the age of 16 years in a lewd, lascivious, or indecent manner; [[Image here]] without committing the crime of sexual battery, commits a felony of the second degree. ... §
800.04, Fla. Stat. (1997). .This principle is also reflected in section
775.021(4)(b), Florida Statutes (2006), which lists exceptions to the legislative intent to convict and sentence for each criminal offense committed in one criminal episode: 1....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2012 WL 4448791, 2012 Fla. App. LEXIS 16162, 37 Fla. L. Weekly Fed. D 2273
...ouble jeopardy. We agree and reverse his conviction and sentence for aggravated assault with a deadly weapon. A defendant’s double jeopardy rights are violated when he is convicted of two “[ojffenses which require identical elements of proof.” § 775.021(4)(b)l., Fla....
...ictim” alleged the same elements of aggravated assault with a firearm. “The proof showed that appellant confined his victim by threatening him with a loaded shotgun.” Id. The court concluded that the aggravated assault conviction was barred by section 775.021(4)(b)l....
...terrorize the victim.” The proof showed that appellant confined and moved the victim by threatening her with a knife and creating within her a fear of violence. Thus, the conviction of both crimes required identical elements of proof, contrary to section 775.021(4)(b)l....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2001 WL 1130982
...4th DCA 1998), and Canion v. State,
661 So.2d 931 (Fla. 4th DCA 1995), relied on by Sanders. In each of those instances, the defendants engaged a group of persons in one incident at one time and place. Vance, Green, and Canion involved only one illegal act. Section
775.021(4), Florida Statutes, permits conviction and sentence for *225 separate criminal offenses committed within one criminal transaction: (4)(a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which co...
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2015 Fla. App. LEXIS 13764, 2015 WL 5438776
...s the judgment to reflect that
this offense is a felony of the first degree punishable by life in prison.
Finally, because the sentences are not reclassified or “enhanced,” nothing
prevented the court below from “stacking” them. See § 775.021(4), Fla....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2008 WL 4753753
also declared a sexual predator pursuant to section
775.21, Florida Statutes (2002). This Court per curiam
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2004 WL 2387080
...terms in different statutes on the same subject is strong evidence that different meanings were intended lead to two equally plausible readings of legislative intent: one that permits probation and one that forbids it; rule of lenity codified at section 775.021(1), Florida Statutes (1991), requires judges choose the construction that favors the defendant)....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 1997 WL 677988
...(quoting United States v. Powell,
423 U.S. 87, 93,
96 S.Ct. 316, 320,
46 L.Ed.2d 228 (1975)). Although a condition of probation is not itself a criminal offense, we conclude that a statute imposing a condition of probation must be construed favorably to the accused. See §
775.021(1), Fla.Stat....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2015 Fla. App. LEXIS 15527, 2015 WL 6160805
...to a JAC, we conclude that we have no authority to add this language to this statute. It is a fundamental principle of Florida jurisprudence that penal statutes must be strictly construed. State v. Chubbuck,
141 So.3d 1163, 1170 (Fla.2014); see also §
775.021(1), Fla....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal
...2009) (“[Tjhere is no constitutional prohibition against multiple punishments for different offenses arising out of the same criminal episode, as long as the Legislature intends such punishments.” (citing Hayes v. State,
803 So.2d 695, 699 (Fla. 2001))). The legislature has codified the double jeopardy bar within section
775.021(4)(a)-(b), Florida Statutes (2015). Section
775.021(4)(a)-(b) is, at its core, a recitation of the well-known Blockburger test....
...The Blockburger test is a rule of statutory construction which “serves as a means of discerning [legislative] purpose” only where there is no “clear indication of contrary legislative intent.” Albernaz v. United States,
450 U.S. 333, 340 ,
101 S.Ct. 1137 ,
67 L.Ed.2d 275 (1981). The plain and ordinary language of section
775.021(4) unambiguously states that it is the legislature’s intent “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 ......
...ch 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.” § 775.021(4)(a) (emphasis added)....
...The legislature does not intend to allow separate sentencing for related offenses (1) that “require identical elements of proof,” (2) that “are degrees of the same offense as provided by statute,” or (3) that “are lesser offenses the statutory elements of which are subsumed by the greater offense.” § 775.021(4)(b)(l)-(3). Accordingly, “[ajbsent a clear statement of legislative intent to authorize separate punishments for two crimes, courts employ the Blockburger test,” as set forth in section 775.021(4)....
...1993) (explaining that the.legislature’s codification of the Blockburger test did not affect its jurisprudence on the single homicide rule, holding that sentences for both DUI manslaughter and vehicular homicide violated the single homicide rule, and determining that section
775.021(4) did not abrogate Houser); Rodriguez,
875 So.2d at 645 (explaining that the single homicide “rule retains viability today”); Ivey v....
...intend to punish the single death here by two separate homicide convictions.”). - Thus, even if our analysis of the statutory elements of two homicide offenses satisfies the statutory- double jeopardy bar prescribed by the-legislature in section -775.021, we are bound to apply the single homicide rule, which affords a second tier of double jeopardy protection....
...See Chapman,
625 So.2d at 839-40 ; Rodriguez,
875 So.2d at 644 -45 (citing Lawrence v. State,
801 So.2d 293, 294-95 (Fla. 2d DCA 2001) (en banc)). Double Jeopardy Analysis Against this backdrop, we apply the statutory Blockburger test set forth by our legislature in -section
775.021,....
...Moreover, leaving the scene of a crash with death also' requires that a defendant willfully leave the scene of a crash, whereas vehicular homicide has no such element. Compare §
782.071(l)(a), with §
316.027(2)(c). Accordingly; these two offenses satisfy the statutory Blockburger test set forth in section
775.021(4). Lastly, the'two offenses are not degrees of the same offense, nor is one a lesser offense subsumed by the greater offense. §
775.021(4)(b)(2)-(3)....
...he scene of a crash with death. §
316.027(2)(c). It is clear that these two offenses each require proof of an element that the other does not. Furthermore, this pairing of offenses does not fall under either of the enumerated exceptions'in sections
775.021(4)(b)(2) or (b)(3) because the two offenses are not degrees of the same offense, nor is one a lesser offense subsumed by the greater offense. As such, McCullough’s convictions for leaving the scene of a crash with death and fleeing or eluding causing serious bodily injury' or death satisfy the statutory Blockburger test. §
775.021(4)....
...r serious bodily injury). But see McKinney v. State,
51 So.3d 645, 648 (Fla. 1st DCA 2011) (affirming the trial court’s punishment of a defendant for both fleeing or eluding causing serious bodily injury or death and third-degree murder under both section
775.021(4) and the single homicide rule, even if it was based on a single homicide)....
...s consideration of an “accusatory pleading” or “the proof adduced at trial” when a court is looking at two offenses and trying to decide “if each offense requires proof of an element that the other does not.” (Emphasis added.) No part of section 775.021 instructs courts to utilize the single homicide rule as though it were the statutory Blockburger test....
...On the contrary, Chapman made clear that the statutory codification of the Blockburger test did not affect our supreme court’s jurisprudence on the single homicide rule.
625 So.2d at 839-40 . In other words, the McKinney court erred because it tried to import the alternative conduct analysis of section
775.021(4)(a) into its independent analysis of the single homicide rule....
...But to hold that the alternative conduct analysis of the statutory Blockburger test also applies to the single homicide rule is the same as holding that there is no single homicide rule at all. Confusion as to the applicability of the same elements test set forth in section 775.021(4) to the single homicide rule is evident in the case law....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2012 Fla. App. LEXIS 20449, 2012 WL 5933010
...However, “[bjefore determining legislative intent, a court must first determine whether the charges arose from a single episode.” Id. If the charges arose from the same criminal episode, then the next step requires application of the Blockburger 1 test, codified in section 775.021, Florida Statutes (2010), to determine if separate offenses exist....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2007 Fla. App. LEXIS 18692, 2007 WL 4163858
...usiness during the intervening weekend. Under the rule of lenity, Florida’s criminal laws “shall be strictly construed [and] when the language is susceptible of differing constructions, [they] shall be construed most favorably to the accused.” § 775.021(1), Fla....
CopyCited 1 times | Published | District Court of Appeal of Florida | 1999 Fla. App. LEXIS 15623, 1999 WL 1062457
...The trial court’s interpretation is in accord with the plain words of the statute. If there were any doubt (and we think there is none), “when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.” § 775.021(1), Fla....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 14 Fla. L. Weekly 2717, 1989 Fla. App. LEXIS 6671, 1989 WL 141721
...2d DCA 1989); Gordon v. State,
528 So.2d 910 (Fla. 2d DCA 1988), approved, State v. Smith,
547 So.2d 613 (Fla.1989). In reversing the appellant’s sentence, we note that the appellant’s offense occurred on May 13, 1988, prior to the July 1, 1988, effective date of section
775.021(4), Florida Statutes (Supp.1988)....
CopyCited 1 times | Published | Florida 1st District Court of Appeal
...manner likely to cause the death of, or great bodily harm to,
another.” §
782.071, Fla. Stat. (2014). The statute provides that
“the term ‘unborn child’ means a member of the species Homo
sapiens, at any stage of development, who is carried in the
womb.” §
775.021(5)(e), Fla....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2006 WL 3327646
...ng covering it in violation of section
800.04(5)(a); and (2) count Vlewd and lascivious conduct by kissing the victim's neck in violation of section
800.04(6)(a). In order for multiple convictions to be permitted under these two counts pursuant to section
775.021(4)(a), i.e., the "same elements" test, each offense is considered 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 ." §
775.021(4)(a), Fla....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2007 WL 3375001
sexual predator designation was mandatory under section
775.21(4)(c), Florida Statutes (1998), and (2) no
CopyCited 1 times | Published | Supreme Court of Florida | 40 Fla. L. Weekly Supp. 631, 2015 Fla. LEXIS 2537, 2015 WL 7008527
...armed burglary, and determined that the elements of armed burglary are subsumed
by attempted home invasion robbery. Id. Accordingly, the district court held that
armed burglary is the lesser crime. Id. The court also held that pursuant to Pizzo
and section 775.021(4)(b)3., Florida Statutes (2010), which governs double
jeopardy, the lesser offense of armed burglary should have been vacated....
...of law and is reviewed de novo. Pizzo,
945 So. 2d at 1206. The Legislature
codified the double jeopardy test delineated by the United States Supreme Court in
-4-
Blockburger v. United States,
284 U.S. 299 (1932), in section
775.021(4), Florida
Statutes, which provides in pertinent part:
(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 a...
...This Court has explained double jeopardy as follows:
A defendant is placed in double jeopardy where based upon the same
conduct the defendant is convicted of two offenses, each of which
does not require proof of a different element. Blockburger v. United
States,
284 U.S. 299, 304 (1932); see §
775.021(4), Fla....
...under the Blockburger test, with three exceptions: offenses requiring
identical elements of proof, offenses which are degrees of the same
offense as provided by statute, and lesser offenses which have
elements wholly subsumed by the greater offense. § 775.021(4)(b).
When an appellate court determines that dual convictions are
impermissible, the appellate court should reverse the lesser offense
conviction and affirm the greater....
...2d 522, or whether the
- 10 -
punishments for the two offenses should be compared, Pizzo,
916 So.
2d 828.
Id. at 1206. In Donovan, the Fifth District held that convictions for both grand
theft and organized fraud violated double jeopardy and section
775.021(4)(b)3.,
Florida Statutes (1987), because the elements of grand theft were subsumed by the
elements of organized fraud....
...original intentions of the sentencing court, if our elimination of the
lesser convictions left the appellant with no sentence at all.
Id. On review in Pizzo, this Court approved the elements test employed in
Donovan and explained that under section 775.021(4)(b)3., the lesser offense is
that for which each element is subsumed by another, the greater offense....
...The double jeopardy statute unambiguously expresses that
the legislative intent to convict and sentence for each criminal offense does not
include those “[o]ffenses which are lesser offenses the statutory elements of which
are subsumed by the greater offense.” § 775.021(4)(b)3., Fla....
...aintained.
CONCLUSION
Based on the foregoing, we hold that when a defendant is found guilty for
two offenses and adjudication of the defendant as guilty for both offenses would
violate double jeopardy and section 775.021(4)(b)3., the lesser offense as defined
by Pizzo should be vacated....
...ense” than the second-
degree felony. With this line of reasoning I cannot agree.
In concluding that Mr. Tuttle’s first-degree felony conviction must be set
aside, the majority purports to rely on the “plain and ordinary meaning” of section
775.021(4)(b)....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2005 WL 1026733
...Defendant-appellant Goree argues that it was impermissible for the trial *130 court to sentence him to three consecutive thirty-year sentences for three convictions of attempted second degree murder. On the contrary, consecutive sentencing is permissible. See § 775.021(4), Fla....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2017 WL 2324673
offense” or separate offenses is codified in section
775.021(4), Florida Statutes, which provides in part:
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2002 WL 1021559
...Where the legislature has authorized multiple revocations of a driver's license using the same convictions under separate statutes, it follows that the legislature intended to authorize separate punishments when a defendant's conduct has triggered those revocations. *1193 Section 775.021(4)(b), Florida Statutes (2000), states that it is the intent of the legislature "to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction." None of the three exceptions to this rule of construction applies in this case. See § 775.021(4)(b)1.-3., Fla....
...Sections
322.34(5) and
322.341 do not require identical elements of proof; the former requires evidence of a habitual traffic offender revocation, while the latter requires proof of a permanent revocation. The two offenses are not "degrees of the same offense as provided by statute." §
775.021(4)(b)2., Fla. Stat. (2000). Neither statute is a necessarily lesser included offense of the other. See §
775.021(4)(b)3.; State v....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2011 Fla. App. LEXIS 6319, 2011 WL 1634236
...Even if failure to report is considered a continuing offense, see Lieble v. State,
933 So.2d 119 (Fla. 5th DCA 2006), each failure to report constituted a new violation of the applicable reporting statute and a separate offense, not part of “one criminal episode or transaction.” §
775.021(4)(b), Fla....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 1990 WL 66198
...1989), held that because of double jeopardy, a defendant cannot be convicted of possession and sale of the same illegal drug. I perceive the court's rationale in V.A.A. to be that a possession charge is always subsumed into a charge of sale based upon section 775.021(4)(b)(3), Florida Statutes (Supp....
...assumed. Fla.Std.Jury Instr. (Crim.) at 227. Likewise, nowhere is the element of sale listed as an element of the crime of possession. The line of cases involving this double jeopardy issue began with Carawan v. State,
515 So.2d 161 (Fla. 1987). Subsection
775.021(4), Florida Statutes (1983), was applicable to Carawan; our case involves the same subsection, which the legislature amended in chapter 88-131, section 7, Laws of Florida. Those two versions of the law, in relevant part, provide: 1983 Act 1988 Act
775.021 Rules of construction.
775.021 Rules of construction....
...Such a holding appears inconsistent with this court's conclusion in V.A.A. that the elements of possession are subsumed by the elements of sale. An additional problem I have with the V.A.A. decision is the conclusion that "[t]he exception contained in subsection [
775.021](4)(b)(3) is implicated under the facts of the case...."
561 So.2d at 315. V.A.A. involved two sales of cannabis. One sale took place before the effective date of the 1988 amendments to section
775.021, while the other sale occurred after the effective date....
...possessed and sold a felony amount of cannabis which did not reach a trafficking level (over twenty grams but not in excess of 100 pounds). [4] How does a court apply the V.A.A. holding? The sale and the possession are both third-degree felonies. Subsection 775.021(4)(b)(3) which provides an exception to the legislature's intent that there shall be two convictions and two sentences when "offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense." In t...
...y help to [Mike] in either acquiring it or retaining possession of it. On the contrary, appellant aided [Mike] in divesting himself of it. Daudt at 53-54. Davis,
560 So.2d at 1233. The bottom line of my reasoning is that the legislature, in amending section
775.021(4), has declared the crimes of possession and sale of an illegal drug separate offenses, without regard to the indictment or information and without regard to the proof offered at trial....
...e comparison of the elements of the two crimes in question. If this comparison of the two crimes reflects that each offense contains an element that the other does not, then there is no double jeopardy unless the exceptions apply which are listed in section 775.021(4)(b), Florida Statutes (Supp....
...If none of the three exceptions under that section apply, then there can be two convictions and two sentences for the two crimes. I think the following question should be certified to the supreme court as a question of great public importance: WHEN DECIDING A DOUBLE JEOPARDY ISSUE PURSUANT TO SECTION 775.021(4)(b), FLORIDA STATUTES (SUPP. 1988), IS THE TRIAL OR APPELLATE COURT PERMITTED TO EXAMINE THE FORMAL CHARGES OR THE FACTS OF THE CASE TO MAKE THE DETERMINATION? NOTES [1] I conclude that section 775.021 precludes the court from looking at the facts of a case to determine double jeopardy....
...299,
52 S.Ct. 180,
76 L.Ed. 306 (1932). The Blockburger analysis is only utilized where the court cannot discern the clear legislative intent. In State v. Smith,
547 So.2d 613 (Fla. 1989), our supreme court has determined that the 1988 amendment to section
775.021(4), Florida Statutes (Supp....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 1996 WL 106377
...Finally, section
772.11 itself limits its remedy to violations of only sections
812.012 through
812.037. But there is nothing in the specified statutes deeming a violation of section
713.345 to be the crime of theft under sections
812.012-812.037. Frankly, if we were to apply the Blockburger test, see section
775.021(4), to a person who had been charged with a violation of both
713.345 and section
812.014 for a single episode involving only the same construction funds, we would find separate convictions legally permissible because they involve disparate elements....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2010 WL 1875567
...No. 3D10-703. District Court of Appeal of Florida, Third District. May 12, 2010. Rosevelt R. Perry, in proper person. Bill McCollum, Attorney General, for appellee. Before WELLS and SUAREZ, JJ., and SCHWARTZ, Senior Judge. PER CURIAM. Affirmed. See § 775.021(4)(a), Fla....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2007 WL 1372676
...ssue of whether convictions for this crime and the crime of organized fraud violate double jeopardy. The analysis below demonstrates that convictions for these two crimes do not violate double jeopardy because each crime contains different elements. Section 775.021(4), Florida Statutes (2003), provides that defendants shall be convicted and sentenced for separate criminal offenses committed in the course of one criminal episode or transaction, except for: (1) offenses which require identical ele...
...hout that person's authorization or prior consent. §
817.568(2)(a), Fla. Stat. In comparing the elements of these two crimes, it is apparent that each contains elements the other does not and that they do not meet any of the statutory exceptions in section
775.021(4)....
CopyCited 1 times | Published | Florida 5th District Court of Appeal
designating him as a sexual predator under section
775.21, Florida Statutes (2018). The order was entered
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 1997 WL 90824
...2d DCA 1994), in which the court held that convictions for both battery and false imprisonment could not stand as battery was a permissible lesser included offense of the crime of false imprisonment, citing to Sirmons v. State,
634 So.2d 153 (Fla.1994). Sirmons construed section
775.021(4), Florida Statutes (1989), as prohibiting dual convictions of robbery with a weapon and grand theft of an automobile all arising out of the same taking of an automobile at knife point....
...This test inquires whether each offense contains an element not contained in the other; if not, they are the same offense and double jeopardy bars subsequent punishment or prosecution....
678 So.2d at 321 (footnote and citations omitted). The Blockburger test was adopted in Florida with several exceptions. Section
775.021(4)(a), Florida Statutes (1993), provides: 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.......
...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. § 775.021(4)(b) (emphasis supplied)....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 1994 Fla. App. LEXIS 1661, 1994 WL 63494
...n actually threatened or a member of the threatened person’s family. Section
836.10. As with extortion, neither the actual intent to do harm nor the ability to carry out the threat, is an essential element of the crime. Smith v. State. Pursuant to section
775.021(4)(a), “offenses are separate if each offense requires proof of an element that the other does not.” See also Cherry v....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2013 WL 1235888, 2013 Fla. App. LEXIS 5078
...State,
803 So.2d 695, 700 (Fla.2001) (emphasis in original). But even if the acts are not distinct, there is no constitutional prohibition against multiple punishments “if the Legislature intended separate convictions and sentences for a defendant’s single criminal act[.]” Hayes,
803 So.2d at 699 . Section
775.021, Florida Statutes (2010), generally expresses such intent, and provides the framework for analysis: (4)(a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate cri...
...1st DCA 1991) (concluding, where defendant sexually assaulted victim near her home and in two different locations in a nearby park, that moving *925 victim to distinguishable locations gave defendant time to pause and reflect between acts). Finding Appellant’s acts indistinguishable for double jeopardy purposes, we look to section 775.021(4) to determine whether Appellant’s dual convictions nonetheless may stand....
...The statute provides that an individual shall be punished for all offenses arising out of a single criminal transaction or episode, except offenses that require identical elements of proof, are degrees of the same offense, or are lesser offenses whose elements are subsumed by the elements of the greater offense. See §§ 775.021(4)(b)1.-3., Fla....
...§
784.041(1), Fla. Stat. (2010). Battery occurs when a person “[a]ctually and intentionally touches or strikes another person against the will of the other[.]” §
784.03(1)(a), Fla. Stat. (2010). Because felony battery wholly subsumes battery, section
775.021 precludes punishing Appellant for the lesser offense....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2011 Fla. App. LEXIS 3908, 2011 WL 1004582
...ommon pocketknife. In summary, we find that R.H. did not violate the statute in question, and as such we reverse the adjudication in this case and remand for entry of a judgment of dismissal. Reversed and remanded. MAY and DAMOORGIAN, JJ., concur. . Section 775.021(1), Florida Statutes, codifying the rule of lenity, states that ‘‘[t]he provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it sh...
CopyCited 1 times | Published | Supreme Court of Florida | 1991 WL 36683
...The district court certified the following question as one of great public importance: WHEN A DOUBLE JEOPARDY VIOLATION IS ALLEGED BASED ON THE CRIMES OF SALE AND POSSESSION (OR POSSESSION WITH INTENT TO SELL) OF THE SAME QUANTUM OF CONTRABAND AND THE CRIMES OCCURRED AFTER THE EFFECTIVE DATE OF SECTION 775.021, FLORIDA STATUTES (1988 SUPP.), IS IT IMPROPER TO CONVICT AND SENTENCE FOR BOTH CRIMES? Id....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2013 WL 1136416, 2013 Fla. App. LEXIS 4418
...For reasons explained below we conclude that Appellant’s conduct, though possibly criminal, was not proscribed by the statute under which she was charged when construed most favorably to the accused, a construction we are obligated to adopt pursuant to the “Rule of Lenity.” See § 775.021(1), Fla....
...in *960 v. State,
721 So.2d 1170, 1172 (Fla.1998) (“[I]t is a well-established canon of construction that words in a penal statute must be strictly construed” (citation omitted)); Wallace v. State,
860 So.2d 494, 497 (Fla. 4th DCA 2003) (through §
775.021(a) “[t]he Legislature committed itself to the “Rule of Lenity” in the construction of criminal statutes-”)....
...As we said earlier, our task is not to find which of these reasonable constructions was in fact intended by the Legislature. Our role is simply to determine whether the statute is susceptible to a construction which would place Appellant’s conduct beyond its reach, thereby implicating the Rule of Lenity. See § 775.021(1), Fla....
CopyCited 1 times | Published | Supreme Court of Florida | 42 Fla. L. Weekly Supp. 322, 2017 Fla. LEXIS 583
...4th DCA 2007) (using the term “sexual intercourse” throughout
the opinion to refer to conduct between two males); Grohs v. State,
944 So. 2d 450,
457 (Fla. 4th DCA 2006) (referring to “sexual intercourse” involving two males).
Finally, we reject the suggestion that the rule of lenity in section
775.021(1),
Florida Statutes, requires that we adopt the restricted definition of “sexual
intercourse” urged by Debaun....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 22 Fla. L. Weekly Fed. D 670
...M.P.,
682 So.2d at 81 ("The Blockburger, test which is also called the `same-elements' test, inquires whether each offense contains an element not contained in the other; if not, they are the same offense and double jeopardy bars subsequent punishment or prosecution. The Blockburger test has been codified in Florida at section
775.021(4), Florida Statutes (1995).")....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2009 Fla. App. LEXIS 1784, 2009 WL 605316
...The plea agreement provided that Laurore was obliged to appear for sentencing, and that failure to appear would result in a thirty-year prison sentence with a minimum mandatory term of fifteen years. Laurore failed to appear for a period of seven years, during which time she lived under an alias. Section 775.021(4), Florida Statutes (1995), codifies the rules of construction for criminal penalties....
...ces 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. § 775.021(4)(a) (emphasis added)....
CopyCited 1 times | Published | District Court of Appeal of Florida
364 So. 2d 497, 500 (Fla. 2d DCA 1978) (citing §
775.021(4), Fla. Stat. (1977)) (discussing category four
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2011 Fla. App. LEXIS 10179, 2011 WL 2555402
...Affirmed in part, reversed in part and remanded. HAZOURI and CIKLIN, JJ., concur. NOTES [1] §§
775.082(2)(a)1.,
812.13(1), (2)(a), Fla. Stat. (2008). [2] §§
775.087(1),
812.014(1), (2)(c), Fla. Stat. (2008). [3] §§
775.087(1),
787.02(2), Fla. Stat. (2008). [4] §
775.021(1), Fla....
CopyCited 1 times | Published | Supreme Court of Florida | 2007 WL 1836835
...y for a total of thirty-nine years mandatory time on the robbery charges. Id. The statutory authority for the mandatory minimums was apparently derived from a firearm enhancement statute, section
775.087(2), Florida Statutes (1981); another statute, section
775.021(4), Florida Statutes (1981), provided that trial judges were allowed to issue consecutive prison sentences for separate offenses occurring during the same criminal episode....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2011 Fla. App. LEXIS 9617, 2011 WL 2462662
...However, they concluded that convictions on both offenses would not violate double jeopardy pursuant to section 806.081(3), Florida Statutes (2006), which provides: Upon conviction and adjudication of guilt [for arson resulting in injury to another], a person may be sentenced separately, pursuant to s. 775.021(4), for any [arson resulting in injury to another] and for any arson committed during the same criminal episode.......
...Here, the defendant has shown all three elements to satisfy the exception. First, although the terms of the sentence originated from plea negotiations, the ultimate plea was a general open plea as distinguished from a plea bargain. Second, a double jeopardy violation is apparent from the record. Section 775.021(4), Florida Statutes (2006) provides: (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....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2016 WL 3265542, 2016 Fla. App. LEXIS 9208
...the convictions under section
847.0135(4)(b) and section
934.215 do not violate double
jeopardy because "neither of the statutory elements of the offense of unlawful use of a
1
Blockburger v. United States,
284 U.S. 299 (1932); see also
§
775.021(4)(a), Fla....
...See, e.g., Partch v. State,
43 So. 3d 758, 760 (Fla. 1st DCA 2010) ("If the
charges are not predicated on distinct acts and have occurred within the same criminal
episode, we must next decide if the charges survive a same elements test as defined by
section
775.021, Florida Statutes (2008), commonly referred to as the Blockburger
analysis." (emphasis added))....
CopyCited 1 times | Published | Florida 4th District Court of Appeal
...3d 781, 783 (Fla. 4th DCA
2011).
“A defendant’s double jeopardy rights are violated when he is convicted
of two ‘offenses which require identical elements of proof.’” Ortiz-Medina
v. State,
126 So. 3d 1183, 1183 (Fla. 4th DCA 2012) (quoting §
775.021(4)(b)(1), Fla....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 8247, 2010 WL 2330419
...conditional medical release under s.
947.149, prior to serving the mandatory minimum term of imprisonment."). Moreover, if there is any ambiguity in the language of section
775.082(3)(a)(4)(a)(II), we must construe it in favor of the defendant. See §
775.021(1)....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 24 Fla. L. Weekly Fed. D 1619
...ith the declaration in subsection (1) that the statute was enacted to "provide enhanced penalties." See §
794.023(1), Fla. Stat. (1997). This would create an ambiguity which, under the rule of lenity, must be resolved in favor of the defendant. See §
775.021, Fla....
CopyCited 1 times | Published | Supreme Court of Florida | 41 Fla. L. Weekly Supp. 327, 2016 Fla. LEXIS 1421, 2016 WL 4082429
...main at the scene to comply with certain reporting requirements and to render aid" to anyone injured. Id. (emphasis added). Violation of this provision is a felony offense. Because this is a criminal statute, the language must be strictly construed. § 775.021(1), Fla....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2000 WL 873206
...ony. The state contends that the enhancement was proper because FKCS operates under a contract with the Department of Juvenile Justice and, therefore, FKCS falls within the purview of Section
784.075. Penal statutes are to be strictly construed. See §
775.021, Fla....
...A shelter, even if operating under a contract with the Department of Juvenile Justice, is not one of the listed facilities stated in Section
784.075. Accordingly, we reverse finding the battery that occurred did not fall within one of the specific facilities as defined in the statute. See §
775.021, Fla....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 1992 WL 178949
...The court disapproved this court's emphasis on the facts of the case rather than on the statutory elements of the crimes charged. Rodriquez I also used erroneous reasoning, said the court, because it ignored the "clear legislative intent" expressed in section 775.021(4), that there be convictions and sentences for each criminal offense committed during a criminal episode....
...ddress the same evil. Carawan, at 170. Carawan was short-lived, however, and the supreme court conceded in State v. Smith,
547 So.2d 613 (Fla. 1989), that the rules of construction announced in Carawan were overridden by the legislative amendment of section
775.021(4), Florida Statutes....
...We are led to this conclusion by the following: 1. Although without citation to Blockburger, [1] the Smith court used the Blockburger test to determine whether the crimes charged were separate offenses subject to separate punishments. The legislative intent expressed in section 775.021(4), Florida Statutes (Supp....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 11410, 2015 WL 4549461
...do not prohibit ‘multiple punishments for different
offenses arising out of the same criminal transaction as long as the
Legislature intends to authorize separate punishments.’” Rimondi,
89 So.
3d at 1061 (quoting Valdes v. State,
3 So. 3d 1067, 1069 (Fla. 2009)).
Section
775.021(4), Florida Statutes (2007), which codifies the test
established in Blockburger v....
...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.
§ 775.021(4)(a)-(b), Fla. Stat. (2007).
Thus, “[i]f each offense ‘has an element that the other does not, the
court must then determine if one of the exceptions set forth in
2
775.021(4)(b) applies.’” Juliao v....
...In applying this test, courts examine the statutory elements of the
two offenses and do not consider “the actual evidence presented at trial or
the facts as alleged in a particular information.” Donovan v. State,
572 So.
2d 522, 526 (Fla. 5th DCA 1990); see also §
775.021(4)(a), Fla....
...ade, not
misleading; or
3
3. To engage in any transaction, practice, or course of
business which operates or would operate as a fraud or deceit
upon a person.
Applying the test of section 775.021(4)(a), Florida Statutes (2007), to
these elements, “each offense requires proof of an element that the other
does not[.]” A fraudulent security transaction requires proof of a
connection with the rendering of investment advice or with the offer, sale
or purchase of an investment....
...First-degree grand theft requires proof that
the stolen property is worth at least $100,000, which is not an element of
fraudulent security transaction. See §
812.014(2)(a)1., Fla. Stat. (2007).
Appellant argues that we should consider the two statutes as “degree
variants” of the same offense pursuant to section
775.021(4)(b)2., Florida
Statutes (2007)....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2005 WL 1761995
...See State v. Florida,
894 So.2d 941, 945 (Fla. 2005). Legislative intent to authorize dual convictions and sentences may be expressly stated in a statute or discerned through the Blockburger [1] statutory construction test, which has been codified in Section
775.021(4), Florida Statutes (2002)....
...be punished separately from other theft penalties provided by law when the credit card theft arises out of a single criminal episode. Hence, in the absence of a legislative mandate, we must next consider whether the Blockburger test, as codified in section 775.021(4), permits dual convictions for robbery and credit card theft....
...Thus, under a strict Blockburger analysis we would be compelled to conclude that the dual convictions in this case are proper. See State v. McDonald,
690 So.2d 1317, 1319 (Fla. 2d DCA 1997). However, one of the exceptions to the Blockburger analysis, codified in section
775.021(4)(b)(2), prohibits dual convictions from a single episode where one crime is a degree variant of the other....
...Thus, for all of the foregoing reasons, Gorday's conviction and sentence for armed robbery cannot stand. We, therefore, reverse and remand with directions that she be discharged forthwith. Reversed and remanded with directions. NOTES [1] Blockburger v. United States,
284 U.S. 299, 304,
52 S.Ct. 180,
76 L.Ed. 306 (1932). [2] Section
775.021 provides: (4)(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 f...
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2012 WL 3022047, 2012 Fla. App. LEXIS 12093
...hether the Legislature ‘intended to authorize separate punishments for the two crimes.’ ... Absent a clear statement of legislative intent to authorize separate punishments for two crimes, courts employ the Blockburger [ 1 ] test, as codified in section 775.021, Florida Statutes (1997), to determine whether separate offenses exist.” Valdes v....
...State,
3 So.3d 1067, 1070 (Fla.2009) (citations omitted). In the instant case, there is no clear statement of the legislature authorizing or prohibiting separate punishments for violations of sections
810.02(2)(a)-(b) and
812.135(2)(a), Florida Statutes (2008). Thus, we must turn to section
775.021(4), Florida Statutes (2008), to determine whether attempted home invasion robbery and burglary of a dwelling with a battery or assault are separate offenses....
...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. § 775.021(4), Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2012 WL 3023179, 2012 Fla. App. LEXIS 12096
...Appellant contends that his consecutive sentences on these counts are illegal and result in a manifest injustice because he fired a single burst of seven shots at the two victims, and the offenses occurred in a single criminal episode. The consecutive sentences are legal. § 775.021(4)(a), Fla....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2004 WL 1485952
contending that the Florida Sexual Predators Act, section
775.21, Florida Statutes (2003), is unconstitutional
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2008 WL 2774464
declaring him to be a sexual predator pursuant to section
775.21, Florida Statutes (2007), the Florida Sexual
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 1989 WL 78301
...3d DCA 1989); Evans v. State,
528 So.2d 125 (Fla. 3d DCA 1988). Since the offenses occurred on October 19, 1986, this result is compelled by Carawan v. State,
515 So.2d 161 (Fla. 1987), and is not affected by ch. 88-131 § 7, Laws of Fla, the amendment to section
775.021(4), Florida Statutes (1987) which became effective July 1, 1988....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2014 WL 3434445, 2014 Fla. App. LEXIS 10884
...We agree
with Judge Northcutt that any ambiguity created by contradictory
language in sections
776.012(1) and
776.013(3) requires that these
provisions of the criminal code be strictly construed most favorably to the
accused. Little,
111 So. 3d at 223 (Northcutt, J., concurring) (citing §
775.021(1), Fla....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2008 WL 2744337
Defendant a Sexual Predator Offender pursuant to section
775.21, Florida Statutes (2007). Because we find that
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2012 WL 2864380, 2012 Fla. App. LEXIS 11396
...v. State,
682 So.2d 79, 81 (Fla.1996)). Absent clear legislative intent to authorize separate punishments, courts employ the Blockburger 3 “same elements” test, ie., “whether each offense has an element that the other does not,” codified at section
775.021(4)(a), Florida Statutes (2008). 4 If each of the offenses has an element that the other does not, the court must then determine if one of the excep *286 tions set forth in section
775.021(4)(b) 5 applies to preclude separate convictions and sentences....
...Johnson v. State,
913 So.2d 1291, 1291 (Fla. 2d DCA 2005). Here, there is no specific statement of legislative intent to have sexual battery and lewd or lascivious molestation punished separately when the two crimes arise from a single act. However, section
775.021(4)(a) establishes the general legislative intent to punish separate offenses that arise from the same act....
...Instead, sexual battery requires either penetration or oral, anal or vaginal union with the sexual organ of another, neither of which are elements of lewd or lascivious molestation. Further, the two offenses are not subject to any of the three exceptions set out in section 775.021(4)(b) in that they do not require identical elements of proof, are not degrees of the same offense as provided by statute, nor is one subsumed by the other....
...Roughton guilty of lewd or lascivious molestation, it failed to impose a sentence. Withholding the sentence on one of the two convictions does not cure a double jeopardy violation. See Bolding v. State,
28 So.3d 956 (Fla. 1st DCA 2010). . Blockburger v. United States,
284 U.S. 299 ,
52 S.Ct. 180 ,
76 L.Ed. 306 (1932). .Section
775.021(4)(a), Florida Statutes (2008), states: 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...
...s 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. . Section 775.021(4)(b), Florida Statutes (2008), states: 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....
CopyCited 1 times | Published | Supreme Court of Florida
...urglary of a dwelling with an assault or battery with a firearm"). These holdings cannot be reconciled with the requirement that the [double jeopardy] analysis be conducted " without regard to the accusatory pleading or the proof adduced at trial ." § 775.021(4)(a) Fla....
...Where multiple criminal offenses occur in the course of a single criminal episode or transaction, courts employ the test set forth by the United States Supreme Court in Blockburger v. United States ,
284 U.S. 299 ,
52 S.Ct. 180 ,
76 L.Ed. 306 (1932), which is codified at section
775.021(4)(a), Florida Statutes, to determine whether receiving separate punishments for each offense violates double jeopardy....
...ces 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. § 775.021(4)(a), Fla....
...offenses or only one, is whether each provision requires proof of a fact which the other does not."). If the offenses are separate, such that multiple punishments are authorized for the same criminal act, courts next look to the exceptions found in section 775.021(4)(b)....
...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. §
775.021(4)(b), Fla. Stat. (2009). "Where even a single act constitutes multiple separate criminal offenses, as defined in section
775.021(4)(a), the offender must be sentenced separately for each offense unless one of the three exceptions in *1092 section
775.021(4)(b) applies." Roughton v. State ,
185 So.3d 1207 , 1210 (Fla. 2016). The certified conflict here arises from the failure of the First and Fifth Districts to properly apply section
775.021 in the line of conflict cases....
...2d DCA 2000). In Washington , Washington contended that his convictions for burglary with a battery and aggravated battery constituted a double jeopardy violation.
752 So.2d at 17 . Unlike in Henderson , the Second District in Washington cited and applied section
775.021(4), concluding "that since the State must prove an additional element to convict on an aggravated battery charge, as opposed to a simple battery charge, subsection 775.[0]21(4) authorizes separate punishments for first-degree burglary with a battery and aggravated battery." Id....
...hibition against double jeopardy.
200 So.3d at 162 -63 . The Fifth District agreed, citing McGhee and Estremera for support. Id. at 163 . None of the decisions in the eight conflict cases contains a proper double jeopardy analysis in accordance with section
775.021. Instead, they all rely on cases in a line which can be traced back to the erroneous decisions in Baldwin and White . When a proper double jeopardy analysis is *1094 conducted in accordance with section
775.021(4)(b) and our recent decision in Roughton ,
185 So.3d 1207 , it is clear that Tambriz-Ramirez's convictions do not violate the prohibition against double jeopardy....
...to have been armed with a deadly weapon during the burglary. His aggravated assault was based on his use of the same deadly weapon . However, the analysis must be conducted " without regard to the accusatory pleading or the proof adduced at trial ." § 775.021(4)(a), Fla....
...attery. We also observe that being or becoming armed with a dangerous weapon during a burglary, which can include mere possession of the weapon, is distinct from using a deadly weapon to commit an aggravated assault. The subsumed-within exception of section 775.021(4)(b) 3, applies "only if the greater offense necessarily includes the lesser offense." State v....
...ted sexual battery. Tambriz-Ramirez also argues that aggravated assault and attempted sexual battery are degree variants of burglary with an assault or battery, and therefore convictions for both violate the prohibition against double jeopardy under section 775.021(4)(b) 2., Fla. Stat. (2009). Section 775.021(4)(b) 2....
...rovides *1096 for an offense with multiple degrees"); State v. Reardon ,
763 So.2d 418 , 420 (Fla. 5th DCA 2000) ("[T]he two offenses [burglary with a battery and aggravated battery] are not degrees of the same crime ...."). In Valdes , we held that section
775.021(4)(b) 2....
...16, 2017), and thus "intended to disallow separate punishments for degree variants of one another, regardless of whether they are contained within separate statutes," id. at 27. We reject that argument, because it directly contravenes the plain language of section 775.021(4)(b) 2....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2002 WL 1401926
...iolent felony be committed in Florida. Canales urges that since the habitual violent felony offender provision does not specifically permit the enumerated offenses to have been committed outside Florida, we should apply the rule of lenity set out in section 775.021, Florida Statutes (1988) and construe the provision in his favor....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2013 WL 40975, 2013 Fla. App. LEXIS 189
...s or proof in a particular case. Bell. Where an offense is not a necessarily lesser included offense, based on its statutory elements, the intent of the legislature clearly is to provide for separate convictions and punishments for the two offenses. § 775.021(4), Fla....
CopyCited 1 times | Published | District Court of Appeal of Florida | 1995 Fla. App. LEXIS 578, 1995 WL 33517
...Therefore, we reverse the dismissal of the motion and remand the case with directions to the trial court to consider whether Heg-strom applies to Jackson’s sentences, and, if so, whether his guilty plea precludes him from collaterally attacking his sentence. REVERSED and REMANDED. MINER and WOLF, JJ., concur. . Moreover, section 775.021(4), Florida Statutes (1977), enacted in 1976, abrogated the single-transaction rule....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2010 Fla. App. LEXIS 124, 2010 WL 90047
...However, we find the issue raised in the State's cross appeal to have merit. For the reasons discussed below, we quash the decision of the trial court to arrest judgment on the appellant's conviction for furnishing a firearm to a minor and remand for the trial court to reinstate that conviction. Section 775.021, Florida Statutes (2007), sets out the rules to be used by Florida courts to determine whether a defendant may be convicted of two separate offenses committed during one criminal episode. According to section 775.021(4): (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 c...
...On the other hand, furnishing a firearm to a minor contains the element of selling or transferring a firearm, which manslaughter does not. Therefore, according to Blockburger, the dual convictions were proper unless the offenses fit within one of the exceptions in section 775.021(4)(b)....
...Specifically, the appellant asserts that because the state could not prove the manslaughter charge without proving that the appellant sold a firearm to a minor, [1] his conviction for both manslaughter by culpable negligence and furnishing a firearm to a minor is precluded under section 775.021(4)(b)3. [2] However, the appellant's reasoning is erroneous because it is based on an examination of the facts of the case, which is improper. See § 775.021(4)(a), Fla....
...n the elements necessary to prove Manslaughter because in order to establish the culpable negligence element of the Manslaughter charge, it is necessary to establish that the Defendant provided the victim with a firearm." [2] The other exceptions of section 775.021(b) clearly do not apply....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2012 WL 603559, 2012 Fla. App. LEXIS 2940
...d added a third element: “three, Donald Lamar Green was detained in a facility.” These elements were consistently used in the instructions to the jury and argument of counsel. The offenses are not “separate criminal offenses” for purposes of section 775.021(4)(a), Florida Statutes because count I did not require proof of an element in addition to the elements required to prove count II....
...felony already charged. Under the clear language of section
784.082, aggravated battery with a deadly weapon and aggravated battery with a deadly weapon by one detainee upon another are degree variants of the same offense, not separate offenses. See §
775.021(4)(b), Fla....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2013 WL 673647, 2013 Fla. App. LEXIS 2994
...pplied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.” Blockburger v. United States,
284 U.S. 299, 304 ,
52 S.Ct. 180 ,
76 L.Ed. 306 (1932). See also §
775.021, Fla....
...State,
698 So.2d 252, 254 (Fla.1997): While possession with the intent to sell contains an element that possession does not, the converse is not true. Simple possession contains no element not found in possession with the intent to sell. Therefore, under section
775.021(4)(a), Florida Statutes (1993), we find that the legislature did not intend to punish the offense of possession with the intent to sell separately from and in addition to the offense of simple possession....
...In McCloud , we found that each offense contained an element that the other did not. We reasoned that “the crime of sale does not require possession as an element, and the crime of possession does not require sale as an element.” McCloud,
577 So.2d at 940 . Therefore, pursuant . to section
775.021(4)(a), Florida Statutes (Supp....
...n double jeopardy analysis, the supreme court seemed to take “the accusatory pleading” 5 *551 if not “the proof adduced at trial” into account. Whether the approach in Johnson, mirroring the approach in Paccione , can be said to comport with section 775.021(4)(a)’s requirement that statutory-offenses be considered “without regard to the accusatory pleading or the proof adduced at trial,” see generally State v....
...stance and sale of the same substance, in violation of applicable subsections of section
893.13, Florida Statutes (2010), double jeopardy prohibitions have not been violated. Our supreme court has so held. Affirmed. DAVIS and ROBERTS, JJ., concur. . Section
775.021(4)(a), Florida Statutes (2010), provides: "......
CopyCited 1 times | Published | Supreme Court of Florida | 41 Fla. L. Weekly Supp. 70, 2016 Fla. LEXIS 392, 2016 WL 743245
...In this case we consider whether dual convictions for capital sexual battery and lewd or lascivious molestation based on a single act violate the constitutional prohibition against double jeopardy. Our analysis turns on the rule of construction in section 775.021(4), Florida Statutes (2008); regarding “separate criminal offenses” “committed in the course of - one criminal episode or transaction.” We have for-review Roughton v....
...Finding no specific statement by the Legislature that it intended to punish sexual battery and lewd or lascivious molestation separately, the Fifth District applied the “same elements” test set forth in Blockburger v. United States,
284 U.S. 299, 304 ,
52 S.Ct. 180 ,
76 L.Ed. 306 (1932), and codified in section
775.021(4)(a). Under the basic rule of Blockburger and section
775.021(4)(a), if “each offense requires proof of an element that the other does not,” separate punishments for each offense do not violate the prohibition against double jeopardy....
...be sentenced, separately for each criminal offense” even if those offenses aré committed “in the course of one criminal transaction or episode.” “[Ojffenses, 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.” § 775.021(4)(a), Fla. Stat. (2008). Section 775.021(4)(b), Florida Statutes (2008), provides: 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....
...Fla. Stat. (2008). Although the conduct constituting capital sexual battery will as a practical matter ordinarily — if not always — also constitute lewd or lascivious molestation, the formal elements of these two crimes are quite distinct.. And section 775.021(4) requires analysis based on the formal elements of the crimes....
...Lewd or lascivious molestation requires proof that the touching was done with a lewd or lascivious intent, while sexual battery may be committed without any proof of a specific sensual intent. Each offense requires proof of an element that the other does not; therefore, they are “separate offenses” under section 775.021(4)(a). Where even a single act constitutes multiple separate criminal offenses, as defined in section 775.021(4)(a), the offender must be- sentenced separately for each offense unless one of the three exceptions iri section 775.021(4)(b) applies....
...hat is the same as the conduct prohibited by the other statute being compared, and cannot consider the entire range of conduct proscribed by the statute.
698 So.2d at 1209-10 . But our holding in Gibbs is irreconcilable with “the plain language of section
775.021(4)(a), which requires that .the elements of the offenses-be compared “without,regard to the accusatory pleading or the proof adduced at trial” (Emphasis added.) It runs afoul of the Legislature’s intent “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 [
775.021](1) to determine legislative intent.” §
775.021(4)(b),‘ Fla....
...CONCLUSION For the reasons explained above, we approve the decision of the Fifth District in Roughton and disapprove the decisions of the First and Second Districts in Berlin, Smith, Robinson, and Johnson . We recede from our prior decision in Gibbs and hold that a double jeopardy analysis must — in accordance with section 775.021(4) — be conducted without regard to the accusatory pleading or the proof adduced at trial, even where an alternative conduct statute is implicated....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2011 Fla. App. LEXIS 2294, 2011 WL 665327
...We conclude that in this instance they do. The verdict forms used at the trial of Mr. Reeves gave no indication of whether the jury found that he had committed a "possession" or a "making" with respect to each destructive device. After considering section 775.021, Florida Statutes (2007), our decision in Stearns v....
CopyCited 1 times | Published | Supreme Court of Florida
...Stat.
“Alcoholic beverages” are considered to be substances of any kind and
description which contain alcohol.
§
877.111(1), Fla. Stat.
(____________) is a chemical substance under Florida law.
Chapter 893, Fla. Stat.
(___________) is a controlled substance under Florida law.
§
775.021(5), Fla. Stat.
An “unborn child” means a member of the species Homo sapiens, at any
stage of development, and who is carried in the womb.
Give if applicable. §
775.021(5)(b), Fla....
...Stat.
“Alcoholic beverages” are considered to be substances of any kind and
description which contain alcohol.
(___________) is a controlled substance under Florida law. Ch. 893, Fla.
Stat.
(___________) is a chemical substance under Florida law. §
877.111(1),
Fla. Stat.
§
775.021(5), Fla. Stat.
An “unborn child” means a member of the species Homo sapiens, at any
stage of development, and who is carried in the womb.
Give if applicable. §
775.021(5)(b), Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 1997 WL 66222
...In this case, the trial court instructed only on simple possession as a lesser included offense of both charges. Possession with intent to sell/deliver cocaine is neither a necessarily included lesser offense nor a permissive lesser included offense of trafficking. See § 775.021(4)(b)(3)....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 25 Fla. L. Weekly Fed. D 415
...State,
678 So.2d 319, 321 (Fla.1996) (citations omitted). The test is applied only to the statutory elements of the crimes involved, not to the pleadings or the proof introduced at trial. See State v. Enmund,
476 So.2d 165, 169 (Fla.1985) (Shaw, J., concurring specially). Section
775.021(4)(a), Florida Statutes (1999), expresses the legislature's intent that a defendant be sentenced "separately" for "separate" criminal offenses arising from one criminal transaction....
...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. § 775.021(4)(a) & (b), Fla....
...Attempted second degree murder and a felony causing bodily injury do not fall within any of the exceptions to the express legislative intent that a defendant be sentenced "for each criminal offense committed in the course of one criminal episode or transaction." § 775.021(4)(b), Fla....
...The two offenses do not require "identical elements of proof"; the offenses are not "degrees of the same offense as provided by statute"; and one offense is not a lesser included offense of the other, the "elements of which are subsumed by the greater offense." § 775.021(4)(b)1.-3., Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal
...ngle act are permissible where each separate offense contains an element that the other lacks." Gresham v. State,
725 So. 2d 419, 420 (Fla. 4th DCA 1999)(citing Blockburger v. United States,
284 U.S. 299 (1932)). The Blockburger test is set forth at section
775.021(4)(a), Florida Statutes (2002), which provides that "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." The State argue...
CopyCited 1 times | Published | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 973, 1991 WL 15571
...Second, the state properly confesses error that it was a violation of the defendant’s double jeopardy rights under Carawan v. State,
515 So.2d 161 (Fla.1987) to convict the defendant on the firearm charge. Although Carawan has been superseded by Section
775.021(4), Florida Statutes (1989), the offenses in this case took place prior to the effective date of the statute, and, accordingly, the said statute is inapplicable to this case....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2006 WL 305453
...The postconviction court addressed the merits of Shepherd's claim, concluding that Shepherd was sentenced as an HFO for count one, thereby allowing the court to properly run his sentences for counts five and seven consecutive to count one. The postconviction court relied on section 775.021(4)(a), Florida Statutes, to conclude that it was permissible to sentence a defendant to consecutive sentences for separate crimes which occur as part of the same criminal episode....
...*337 In his motion for rehearing, Shepherd correctly pointed out that if he was actually sentenced as an HFO for count one, then he was incorrectly habitualized for an offense that was a capital felony. See Parrimon v. State,
644 So.2d 95 (Fla. 2d DCA 1994). Shepherd additionally claimed that section
775.021(4)(a) cannot be used to impose consecutive HFO sentences for offenses that occurred as part of the same criminal episode....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2014 Fla. App. LEXIS 19711, 2014 WL 6778278
...Thus, the State acknowledged that Mr. Mizner's convictions
would not withstand scrutiny under a Blockburger4 analysis, as codified in section
4
Blockburger v. United States,
284 U.S. 299 (1932).
- 13 -
775.021(4)(b), Florida Statutes (2011),5 if they were committed within the same criminal
episode.
Mr....
...Internet service, local bulletin board
service, or any other device capable of electronic data storage or transmission" as an
element of those offenses, and both offenses are felonies. §
847.0135(3)(b), (4)(b).
5
Section
775.021(4) provides in pertinent part as follows:
(b) The intent of the Legislature is to convict and
sentence for each criminal offense committed in the course
of one criminal episode or tran...
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 18351, 2010 WL 4907468
...2d DCA 2005) (alteration in original) (quoting Hutchinson v. State,
315 So.2d 546, 547 (Fla. 2d DCA 1975)). Thus, even if the statutory language were susceptible to different meanings, we would be compelled by the rule of lenity to construe it in Stelmack’s favor. See §
775.021(1), Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2002 Fla. App. LEXIS 19137
...that such false statement has been or will be exposed. (Emphasis added). Section
837.07 makes the defense applicable to “any” prosecution for perjury. The rule of lenity requires this statute to be construed “most favorably to the accused.” §
775.021, Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 1998 WL 874918
...State,
586 So.2d 1058 (Fla.1991), in which the supreme court held that legal constraint points should only be used once in calculating a guidelines sentence, was retroactive. To resolve conflicting opinions in Flowers, the court resorted to Florida's lenity statute, section
775.021(1), Florida Statutes (Supp.1988), and held that the sentencing *931 guidelines, when susceptible of different interpretations, must be construed in favor of the defendant....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 1999 WL 1191480
...es. In United States v. Dixon,
509 U.S. 688,
113 S.Ct. 2849,
125 L.Ed.2d 556 (1993), the Supreme Court held that the Blockburger test controls in determining whether there is a double jeopardy bar to additional punishment and successive prosecution. Section
775.021(4), Florida Statutes (1988) codifies the Blockburger test, or "same-elements test," which the legislature adopted to permit a defendant to be convicted and sentenced for separate offenses committed during the course of a single criminal episode....
...nvictions, misdemeanor DLWS does not require proof of an element that felony DWLS does not. See §
322.34(2)(c). In other words, there is nothing in a simple DWLS charge that does not appear in the felony charge. Thus, under the Blockburger test and section
775.021(4)(a), these offenses are not separate and distinct offenses, and prosecution for both offenses is therefore barred by double jeopardy. The Blockburger test also examines whether one offense is a lesser included offense of the other. Consistent with Blockburger, section
775.021(4)(b)3 contains an exception for lesser included offenses, which it defines as "offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense." By this definition, only necessarily included offenses implicate double jeopardy principles. See State v. McCloud,
577 So.2d 939, 941 (Fla.1991)("[a]n offense is a lesser-included offense for purposes of section
775.021(4) only if the greater offense necessarily includes the lesser offense."). See also State v. Baker,
456 So.2d 419 (Fla.1984). Because all the essential elements of misdemeanor DWLS are included within the elements of felony DWLS, DWLS qualifies as a lesser included offense under section
775.021(4)....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2006 WL 3589002
designating appellant a sexual predator, pursuant to section
775.21(4), Florida Statutes (2004). However, the state's
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 1995 WL 509264
..., even if the sentence was a result of a plea agreement). Accordingly, we reverse and remand for Reeves to be resentenced only on the possession of cocaine charge. DELL and STONE, JJ., concur. NOTES [1] The statute to which the court is referring is section 775.021(4), which provides in pertinent part: (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....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2012 WL 3627429, 2012 Fla. App. LEXIS 14161
...6 (Fla.1993), superseded by statute on other grounds as stated in Ritchie v. State,
670 So.2d 924 (Fla.1996). In addition, the rule of lenity requires that when language of a statute is susceptible of differing constructions, it must be construed most favorably to the accused. See §
775.021(1), Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2014 WL 4083452, 2014 Fla. App. LEXIS 12808
...islature “intended to
authorize separate punishments for the two crimes.” Absent
a clear statement of legislative intent to authorize separate
punishments for two crimes, courts employ the Blockburger
test, as codified in section 775.021, Florida Statutes (1997),
to determine whether separate offenses exist.
State v....
...2d 277, 281-82 (Fla. 2007) (emphasis added).
In this case, none of the stolen items (laptop, pressure washer, jewelry)
are of a type of property that the legislature intended for separate
punishment. Thus, we employ the Blockburger test, as codified in section
775.021, Florida Statutes (2009), to determine whether multiple
convictions for the thefts are appropriate....
...Thus, we determine that the theft of
the pressure washer, laptop, and jewelry arose out of a single criminal
episode.
“If the charges are not predicated on distinct acts and have occurred
within the same criminal episode, we must next decide if the charges
survive a same elements test as defined by section
775.021, Florida
Statutes (2008), commonly referred to as the Blockburger analysis.” Partch
v. State,
43 So. 3d 758, 760 (Fla. 1st DCA 2010) (footnote omitted). Section
775.021(4)(b) states:
(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 s...
...Offenses which are lesser offenses the statutory elements
of which are subsumed by the greater offense.
4
As pointed out in Hearn the identity of the owner of the stolen property is not
an element of the crime.
9
§ 775.021(4)(b), Fla....
...Since we have reversed the count of
grand theft with instructions that the count be reduced to a second degree
petit theft, and all of the counts of petit theft require identical elements of
proof, the facts of the instant case fit the first exception under section
775.021(4)(b).
Therefore, we reverse and remand the case with instructions that the
trial court amend and vacate the judgments and sentences as necessary
so that Tindal stands convicted of only one count of second degree petit
theft....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2004 WL 1837348
residence" have the same meaning ascribed in section
775.21. Accordingly, permanent residence means a place
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2004 WL 1779021
court found that the Sexual Predators Act, section
775.21, Florida Statues, did not apply to Bouchillon
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2004 WL 730839
203 (Fla. 1st DCA March 11, 2004), and under section
775.21, Florida's sexual predator law. See Frazier
CopyCited 1 times | Published | Florida 2nd District Court of Appeal
offense committed on or after October 1, 1993. See §
775.21(4)(a), Fla. Stat. (2015). Here, the felony information
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2009 Fla. App. LEXIS 2844, 2009 WL 873546
....084, if it sets forth written reasons why it is not necessary for the protection of the public. §
775.084(4)(e). The trial court can then sentence the defendant separately on each charge, imposing them concurrently or consecutively as it sees fit. §
775.021(4)(a)....
CopyCited 1 times | Published | Florida 1st District Court of Appeal
...Another applicable principle of statutory construction is
the rule of lenity, which posits that a criminal statute must be
strictly construed and when its language is susceptible to differing
constructions, it shall be construed most favorably to the accused.
See State v. Weeks,
202 So. 3d 1, 10 (Fla. 2016) (citing section
775.021(1), Florida Statutes).
Interpreting “driving privilege” as authorization to drive
pursuant to a valid Florida driver’s license or a statutory
exemption is consistent with the dictionary definition of “privilege”
and wi...
CopyCited 1 times | Published | Supreme Court of Florida | 2016 WL 1460708
...any kind and
description which contain alcohol.
§
877.111(1), Fla. Stat.
(____________) is a chemical substance under Florida law.
Chapter 893, Fla. Stat.
(_____________) is a controlled substance under Florida law.
§
775.021(5), Fla....
...Stat.
An “unborn quick child” is a viable fetus means a member of the
species Homo sapiens, at any stage of development, and who is carried in the
womb. A fetus is viable when it becomes capable of meaningful life outside
the womb through standard medical measures.
Give if applicable. § 775.021(5)(b), Fla....
...s of any kind and
description which contain alcohol.
( ) is a controlled substance under Florida law. Ch. 893, Fla.
Stat.
( ) is a chemical substance under Florida law. §
877.111(1),
Fla. Stat.
§
775.021(5), Fla. Stat.
An “unborn child” means a member of the species Homo sapiens, at any
stage of development, and who is carried in the womb.
Give if applicable. §
775.021(5)(b), Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2000 WL 368906
...These facts were sufficiently similar to permit the introduction of Murray's testimony. See State v. Smith,
586 So.2d 1237 (Fla. 2d DCA 1991). We also reject Blevins' double jeopardy challenges to his grand theft and aggravated battery convictions. Section
775.021, Florida Statutes, provides, in pertinent part: (4)(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...
...(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. § 775.021(4), Fla....
...The exceptions 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. § 775.021(4)(b)1-3., Fla....
...stitute separate criminal offenses. Blevins also argues that his conviction for burglary with intent to commit a battery bars his conviction for aggravated battery. It is undisputed that, applying the necessarily included lesser offense exception of section 775.021(4)(b)3, Florida Statutes, a defendant cannot be convicted of burglary with an assault or battery and also be convicted of either simple battery, see Torna v....
CopyPublished | Florida 5th District Court of Appeal | 2011 Fla. App. LEXIS 14235, 2011 WL 3962150
...e second count, both to run consecutively. Beard argues that to be convicted and sentenced on the two conspiracy counts is a violation of double jeopardy. In denying Beard's 3.850 motion, the trial court did a Blockburger [1] analysis as codified in section 775.021(4)(a), Florida Statutes....
CopyPublished | Florida 4th District Court of Appeal
...of cases decided on the same day involving crimes in which dual
convictions arose from a single transaction, our supreme court has
determined that the now-abrogated common law single transaction rule—
upon which Faison rests—cannot be reconciled with the post-Faison
amendment to section
775.021, Florida Statutes, which clarified that “[t]he
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 . . . to determine legislative intent.” See
§
775.021(4)(b), Fla. Stat. (2015); see also State v. Maisonet-Maldonado,
308 So. 3d 63, 70-71 (Fla. 2020) (holding that Houser v. State,
474 So. 2d
1193 (Fla. 1985), which recognized the single homicide rule, was
superseded by the 1988 amendment to section
775.021, and receding
from State v....
...Chapman,
625 So. 2d 838 (Fla. 1993), to the extent it held
otherwise); State v. Marsh,
308 So. 3d 59, 61-63 (Fla. 2020) (holding that
dual convictions for DUI with serious bodily injury and DWLS with serious
bodily injury are not prohibited, consistent with section
775.021(4)’s plain
language, as interpreted in Maisonet-Maldonado,
308 So. 3d at 70-71).
Faison and its progeny were arguably superseded by the amendment
to section
775.021(4), in that Faison’s rationale was premised on the now-
abrogated common law single transaction rule....
...defendants be charged with every offense that arises out of one criminal
episode unless an exception applies.”); Kelso v. State,
961 So. 2d 277, 279
(Fla. 2007) (discussing common law single transaction rule as being
“legislatively replaced” by the enactment of section
775.021); see also
Richard Sanders, “Double Offense” Problems in Kidnapping and False
Imprisonment Cases, 77 FLA. BAR. J. 10, 15 (Dec. 2003) (“Indeed, since
13
current §
775.021(4) was not in effect when Faison was decided, it could
be argued that statute effectively overruled Faison.”).
Thus, we certify to the Florida Supreme Court the following question of
great public importance:
Have Faison v. State,
426 So. 2d 963 (Fla. 1983), and its
progeny been superseded by section
775.021(4), Florida
Statutes?
Affirmed in part, reversed in part, and remanded with instructions;
question of great public importance certified.
GERBER, J., concurs.
WARNER, J., concurs in part and dissents in part with an opinion....
...cases are so slight that one wonders how justice is served when seemingly
similar factual circumstances reach decidedly different results.
I also disagree with the certified question presented by the majority.
Whether Faison has been superseded by section 775.021(4), Florida
Statutes, was never raised in this appeal, and the parties have never had
an opportunity to provide argument on the applicability of the statute....
CopyPublished | Florida 3rd District Court of Appeal | 2011 Fla. App. LEXIS 14136, 2011 WL 3903157
...nder section
322.34(5) filed in circuit court, on double jeopardy grounds. The trial court granted the defendant’s motion, finding that convictions under section
322.34(2) and
322.34(5) would constitute double jeopardy. Our analysis is governed by section
775.021(4), Florida Statutes (2009), codifying the double jeopardy guidelines established by the United States Supreme Court in Blockburger v....
...306 (1932), and the Florida Supreme Court’s decision in Valdes v. State,
3 So.3d 1067, 1076 (Fla. 2009), adopting Justice Cantero’s special concurrence in State v. Paul,
934 So.2d 1167, 1176 (Fla.2006), concluding that the legislative intent in section
775.021(4)(b)(2) was to “disallow separate punishments for crimes arising from the same criminal transaction only when the statute itself provides for an offense with multiple degrees.” Section
775.021 provides in relevant part: (4)(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 sente...
...See also Cooke,
767 So.2d at 469 (concluding that subsections
322.34(2) and (5) contain elements not found in the other offense, and therefore convictions for both offenses do not constitute double jeopardy). Thus, the issue we must resolve is whether these offenses are “degrees of the same offense” under section
775.021(4)(b)(2) or “degree variants” under Valdes ....
CopyPublished | Florida 1st District Court of Appeal | 2001 Fla. App. LEXIS 12536, 2001 WL 1013589
...Because of the amendment, section
316.193(3)(c)2 is now internally inconsistent. Although it specifically requires an injury “to another,” it includes a term that is defined as including “the driver.” In accordance with the rule of construction set forth in section
775.021(1), Florida Statutes, we resolve this obvious ambiguity in the appellant’s favor and conclude that section
316.193(3)(c)2 does not authorize a conviction of DUI causing serious bodily injury where only the driver has been injured....
CopyPublished | District Court of Appeal of Florida | 14 Fla. L. Weekly 2084, 1989 Fla. App. LEXIS 4910, 1989 WL 101260
involved occurred prior to the passage of section 775.-021(4)(a), Florida Statutes (Supp.1988). See State
CopyPublished | Florida 6th District Court of Appeal
...5
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.
§ 775.021(4), Fla....
...And nothing in the
statute is inconsistent with Blockburger’s distinct acts test.”
384 So. 3d at 750.
In State v. Banda, with the benefit of Trappman’s clarifications, we organized
the Blockburger “distinct acts” test and “different elements” test, as codified in
section
775.021(4), into “a three-part analysis to determine whether a double
jeopardy violation occurred.” 397 So....
...Moreover, because the statutory elements of
solicitation are entirely subsumed by the statutory
elements of traveling after solicitation, the offenses are the
same for purposes of the Blockburger same-elements test
codified in section 775.021(4) ....
CopyPublished | Florida 4th District Court of Appeal | 2007 WL 2481016
..."The Youthful Offender Act is a separate statutory scheme for treating young defendants to whom the Act applies." Mendez v. State,
835 So.2d 348, 349 (Fla. 4th DCA 2003). Where the two sentencing statutes are susceptible of differing constructions, this court must construe the statutes favorably to the accused. See §
775.021(1), Fla....
CopyPublished | Florida 4th District Court of Appeal | 2001 WL 1008146
...ief. See Lemon v. State,
769 So.2d 417 (Fla. 4th DCA 2000). We affirm the trial court's summary denial of appellant's challenges in grounds two, three and four of the motion. Appellant's consecutive sentences for two separate crimes were legal under section
775.021(4), Florida Statutes....
CopyPublished | Florida 5th District Court of Appeal | 2015 Fla. App. LEXIS 13194, 2015 WL 5165545
...hat knowledge of the victim’s status is not required under section
782.065 if that is what it intended. Lastly, but perhaps most importantly, because the statute is ambiguous as to this issue, this court must apply the rule of lenity. As stated in section
775.021, “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.” §
775.021(1), Fla....
CopyPublished | Florida 4th District Court of Appeal
...(2017).
Moreover, even if the stalking statute was arguably susceptible to
differing constructions, the rule of lenity requires us to “strictly” construe
the statute “most favorably to the accused” so as not to criminalize conduct
that is not, in and of itself, criminal. § 775.021(1), Fla....
...see; viewing his surroundings; and walking his dog. Because each of those
actions have some legitimate purpose, they cannot support a charge of
stalking under the plain language of the stalking statute.
In addition, the rule of lenity, as codified in section 775.021(1), Florida
Statutes (2017), requires that we resolve any differing constructions “most
favorably to the accused.” Id....
CopyPublished | Florida 1st District Court of Appeal | 2010 Fla. App. LEXIS 14532
considered whether The Florida Sexual Predator Act, section
775.21, Florida Statutes (2000), permitted classification
CopyPublished | Florida 3rd District Court of Appeal
...” Id. (internal
citations and footnote omitted).
Legislative intent in this regard generally “depends on whether each
offense requires proof of an element the other does not.” Roughton v. State,
185 So. 3d 1207, 1209 (Fla. 2016). See §
775.021(4)(a), Fla....
CopyPublished | Supreme Court of Florida
required to register as a sexual predator under section
775.21, Florida Statutes, or as a sexual offender
CopyPublished | Florida 4th District Court of Appeal | 2006 Fla. App. LEXIS 16210, 2006 WL 2788214
...6. Both cases were originally sentenced together and on the same score-sheet and “must continue to be treated in relation to each other.” Tripp,
622 So.2d at 942 . Any ambiguity in the statute must be resolved in favor of the criminal defendant. §
775.021(1), Fla....
CopyPublished | Florida 5th District Court of Appeal | 2000 Fla. App. LEXIS 12596, 2000 WL 1434470
...iction. Initially, under Blockburger v. United States,
284 U.S. 299 ,
52 S.Ct. 180 ,
76 L.Ed. 306 (1932) analysis there is no double jeopardy violation in convicting the defendant for both attempted burglary of a conveyance and criminal mischief. In section
775.021(4)(b), Florida Statutes, the legislature expressed its intent that there be a separate conviction and sentence for each criminal offense, unless one of the offenses is a degree of the other, a necessarily included offense subsumed in the other, or both offenses are identical....
CopyPublished | District Court of Appeal of Florida | 1994 Fla. App. LEXIS 9304, 1994 WL 523413
...eceived three consecutive fifteen-year minimum mandatory sentences followed by a ten-year minimum mandatory sentence for a total minimum mandatory sentence of fifty-five years. In Palmer v. State,
438 So.2d 1 (Fla. 1983), the supreme court construed section
775.021(4), Florida Statutes (1981), to authorize consecutive sentencing for offenses not committed during a single criminal transaction or episode....
CopyPublished | Florida 2nd District Court of Appeal | 2017 WL 4272109
...de novo." Binns v.
State,
979 So. 2d 439, 441 (Fla. 4th DCA 2008). The double jeopardy clauses in the
United States and Florida constitutions prohibit multiple convictions for the same
offense. Amend. V, U.S. Const.; Art I, §9, Fla. Const. Under section
775.021(4)(a),
Florida Statutes (2014), "[w]hoever, 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." Therefore, when considering a double jeopardy claim alleging multiple
convictions for the same offense, we first consider whether the convictions arose from
the same criminal transaction or episode. §
775.021(4)(a); see also Lee v....
...If we conclude that "the convictions arose from the same
criminal episode, we 'must then determine if the convictions were predicated on distinct
-2-
acts.' " Lee, 42 Fla. L. Weekly at D1274 (quoting Partch,
43 So. 3d at 760); see also
§
775.021(4)(a)....
...ual battery and lewd or lascivious
battery arose from the same criminal episode and were not predicated on distinct acts,
we must determine whether sexual battery and lewd or lascivious battery each contain
an element that the other does not. See §
775.021(4)(a). In conducting this analysis,
we are limited to the language of the statute "without regard to the accusatory pleading
or the proof adduced at trial." §
775.021(4)(a).
Section
794.011(1)(h), Florida Statutes (2014), defines sexual battery as
"oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the
anal or vaginal penetration of another by any othe...
CopyPublished | District Court of Appeal of Florida | 14 Fla. L. Weekly 2297, 1989 Fla. App. LEXIS 5324, 1989 WL 112130
ALTENBERND, Judge. McNair appeals his convictions for trafficking in and possession with intent to sell cocaine. Because the same cocaine was the basis for both convictions and because the offenses occurred prior to the 1988 amendment to section 775.021(4), Florida Statutes (1985), appellant’s conviction for trafficking is affirmed, but we reverse his conviction for possession with intent to sell cocaine....
CopyPublished | Supreme Court of Florida | 39 Fla. L. Weekly Supp. 583, 2014 Fla. LEXIS 2857, 39 Fla. L. Weekly Fed. S 583
...d
approve the result reached by the Second District Court of Appeal.
Generally, Florida law requires offenders to be “sentenced separately for
each criminal offense” committed “in the course of one criminal transaction or
episode.” § 775.021(4)(a), Fla....
...Stat. (2009). In enacting this rule, the Legislature
intended “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 [§ 775.021](1) to determine legislative intent.” §
775.021(4)(b), Fla....
...which provides that a defendant may be convicted of either theft or dealing in
stolen property, but not both, where those charges relate to “one scheme or course
of conduct.”
When dual convictions are impermissibly imposed in violation of section
775.021(4)(b), the proper remedy is to vacate the lesser conviction....
...1988) (stating that when “one of two convictions must fall, we hold that the
conviction of the lesser crime should be set aside”).
As I have previously explained, “[t]here is no more harm [when the lesser
conviction is vacated due to a violation of section
812.025] than there is under
section
775.021(4) when impermissible dual convictions have been returned and
the conviction for the lesser offense has been set aside.” Williams v....
...- 12 -
should also be to vacate the lesser conviction. The majority has never provided a
cogent explanation for why impermissible dual convictions under section
812.025
should be treated differently than impermissible dual convictions under section
775.021(4)(b)....
CopyPublished | Supreme Court of Florida
designation on an offender who qualifies under section
775.21, Florida Statutes (2018), the Florida Sexual
CopyPublished | Florida 3rd District Court of Appeal | 2005 Fla. App. LEXIS 14826, 2005 WL 2293185
...The sentence, as modified in the order on Delgado’s motion to correct sentencing error, did not exceed the statutory maximum for the convictions. §
775.082(3)(c), Fla. Stat. (1999). The imposition of consecutive sentences is also not error as each offense contains an element the other does not. See §
775.021(4)(a), Fla....
CopyPublished | Florida 2nd District Court of Appeal | 14 Fla. L. Weekly 2231, 1989 Fla. App. LEXIS 5144, 1989 WL 108477
...t for a single underlying act. See Carawan v. State,
515 So.2d 161 (Fla.1987). See also Seay v. State, No. 87-02204, — So.2d — (Fla. 2d DCA Aug. 16, 1989); Kelly v. State,
546 So.2d 441 (Fla. 2d DCA 1989). Although Carawan has been superseded by section
775.021(4)(b), Florida Statutes (1988 Supp.), retroactive application of the statute is prohibited....
CopyPublished | Supreme Court of Florida | 39 Fla. L. Weekly Supp. 565, 2014 Fla. LEXIS 2822, 2014 WL 4638692
...egory of habitual offenders to earn
provisional credits and one which categorically precludes all habitual offenders
from earning provisional credits, the rule of lenity requires this Court to construe
the 1988 statute most favorably to Leftwich. § 775.021(1), Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2013 WL 5224914, 2013 Fla. App. LEXIS 14797
...In this appeal, the focus is on section
440.105(4)(f)’s reference to a “monetary value.” That term is not defined in the statute. Because this statute is a criminal offense, the legislature requires this court to strictly construe it in a manner most favorable to the defendant. See §
775.021(1), Fla....
CopyPublished | District Court of Appeal of Florida
Judge. PER CURIAM. Affirmed. See §
775.21(4)(a)(1)(a), Fla. Stat. (2004); Sheppard v. State
CopyPublished | Florida 4th District Court of Appeal | 2009 Fla. App. LEXIS 13748, 34 Fla. L. Weekly Fed. D 1888
in finding him to be a sexual predator under section
775.21, Florida Statutes, without an opportunity to
CopyPublished | Florida 1st District Court of Appeal
Blockburger same-elements test codified in section
775.021(4), Florida Statutes. Therefore, double jeopardy
CopyPublished | Florida 1st District Court of Appeal | 1995 Fla. App. LEXIS 9244
...was committed to the cus *1294 tody of the Department of Health and Rehabilitative Services. M.P.C. appeals his multiple adjudications, arguing that he cannot be adjudicated delinquent of the three crimes because of double jeopardy. See Sirmons v. State,
634 So.2d 153 (Fla.1994); §
775.021(4)(b), Fla.Stat....
CopyPublished | Supreme Court of Florida | 22 Fla. L. Weekly Supp. 634, 1997 Fla. LEXIS 1523, 1997 WL 618897
...Rodriguez,
602 So.2d 1270 (Fla.1992), even though the First District Robins decision discussed Rodriguez and the fact that the Rodriguez certified question was then pending in the Florida Supreme Court.
587 So.2d at 583 . (d) The State argued that Hall v. State,
517 So.2d 678 (Fla.1988), was superseded by section
775.021(4), Fla....
...A review of the subsequent history of Hall would have disclosed Cleveland v. State,
587 So.2d 1145 (Fla.1991), in which the Florida Supreme Court rejected this precise argument and held that Hall is still good law. (e) The State argued that the controlling version of section
775.021(4) is determined by the date of conviction....
CopyPublished | Supreme Court of Florida | 2015 WL 5853925
...Element 1 of instruction 7.9 differentiates between the two
-2-
offenses consistent with the applicable statute. Because Vessel Homicide does not
specifically provide for a separate offense for death of an unborn child, section
775.021(5),1 newly enacted during the 2014 legislative session, see ch....
...defining “lottery,” Little River Theatre Corp. v. State,
185 So. 855 (Fla. 1939), is
added. In addition, the definition of “lottery” is simplified to only include the three
elements already set out in the instructions. Also defined are the term and phrases
1. Section
775.021(5) provides as follows:
Whoever commits an act that violates a provision of this code or
commits a criminal offense defined by another statute and thereby
causes the death of, or bodily injury to, an unborn child commits a
separate offense if the provision or statute does not otherwise
specifically provide a separate offense for such death or injury to
an unborn child.
§
775.021(5), Fla....
...wing
three elements beyond a reasonable doubt:
Give 1a, 1b, or 1c as applicable. Element 1a applies to either Vehicular
Homicide or Vessel Homicide. Element 1b applies to Vehicular Homicide only.
Element 1c applies to Vessel Homicide only. See § 775.021(5), Fla....
CopyPublished | Florida 3rd District Court of Appeal
...defendant, court reporter, bailiff, courtroom deputy, courtroom clerk,
corrections officer (for an in-custody defendant), courthouse security and
other personnel).
6
Valdes v. State,
3 So. 3d 1067, 1069 (Fla. 2009). See also §
775.021(4),
Fla....
...3
We therefore reverse in part and remand to the trial court with
directions to vacate the judgment and sentence for Count Six (aggravated
battery as a lesser-included offense of attempted felony murder). We affirm
in all other respects the judgments and sentences.
3
Section 775.021(4)(a)–(b) provides:
(4)(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
adjudicat...
CopyPublished | Florida 1st District Court of Appeal | 2017 WL 4449458
predator because the victim was not a minor. See §
775.21(4)(a)1.a., Fla. Stat. (2010); Maceo v. State,
CopyPublished | Florida 1st District Court of Appeal | 1989 WL 117145
...State, 549 *
496 So.2d 687 (Fla. 1st DCA 1989), the rationale expressed in that opinion and the result reached nevertheless require reversal and resentencing herein. See also, Jones v. State,
551 So.2d 1221 (Fla. 1st DCA 1989). Further, the state’s argument that section
775.021(4) should be applied retroactively so as to govern this case was rejected by the Florida Supreme Court in State v....
CopyPublished | Florida 3rd District Court of Appeal
...a Blockburger analysis, the Court held that “only one homicide conviction
17
and sentence may be imposed for a single death.” Id. at 1196. Houser
reasoned that “Blockburger and its statutory equivalent in section
775.021(4), Fla....
...(1983)[5], are only tools of statutory interpretation which
cannot contravene the contrary intent of the legislature,” and observed that
“Florida courts have repeatedly recognized that the legislature did not intend
to punish a single homicide under two different statutes.” Id. at 1196-97.
5
In 1983, section 775.021(4), Florida Statutes, provided:
Whoever, in the course of one criminal transaction or episode,
commits separate criminal offenses, upon conviction and
adjudication of guilt, shall be sentenced separately for e...
...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.
Section 775.021(4) was subsequently amended to add subsection (4)(b),
and the 2013 version (applicable to the instant case) includes the following
additional language:
(b) The intent of the Legislature is to convict and sentence for...
...lishing the
“single homicide” rule, first established in Houser, “that dual convictions for
offenses resulting from a single death were prohibited in Florida.” Id. at 67.
The Court in Maisonet-Maldonado held that the statutory language of section
775.021(4), Florida Statutes (2010), “clearly expresses that offenses which
pass the codified Blockburger test should be punished separately and that
there is no exception for offenses arising from a single death.” Id. at 69. The
only exceptions to the rule, it continued, are those listed in section
775.021(4), Florida Statutes (2010), 6 which provides:
(4)(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 a...
...r 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
6
The 2010 version of section 775.021(4) construed by the Court in Maisonet-
Maldonado is identical to the 2013 version applicable in the instant case.
19
of an element that the other does not, without regard to the
accu...
...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.
“Under the plain meaning of section 775.021(4)(a), Florida Statutes
(1993), a court is required to examine each of a defendant's convictions
arising out of the same incident to determine whether ‘each offense requires
proof of an element that the other does not, without regard to the accusatory
pleading or the proof adduced at trial.’” Id....
...Courts are to look to the statutory elements of
the offenses, not to the “facts of the record,” to determine where one offense
“requires proof of an element that the other does not.” Id. If the test is
satisfied, the courts turn to whether an exception applies under section
775.021(4)(b)(1)-(3):
(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...
...offense.”) (footnotes omitted); Velazco v. State,
342 So. 3d 614, 616 (Fla.
2022) (holding that dual convictions of DUI and DUI causing serious bodily
injury violated double jeopardy because the two offenses are degree variants
of the same offense under section
775.021(4)(b)2.—i.e., the dual convictions
“arise out of a single act of driving under the influence, running into a single
victim, and causing serious bodily injury to the victim and damage to the
victim’s scooter”).
Finall...
...2d DCA 2017)).
However, and as discussed above, in 2020, the Florida Supreme Court
eliminated this judicially-created “single homicide rule” and with it the related
doctrine of merger. To the extent that such a rule or doctrine conflicts with
the plain and unambiguous language of section 775.021(4), as construed by
26
the Court in Maisonet-Maldonado, the opinions relied upon by Ragan are no
longer good law on this point.
It is beyond peradventure that “there is no constit...
...against multiple punishments for different offenses arising out of the same
criminal transaction as long as the Legislature intends to authorize separate
punishments.” Valdes,
3 So. 3d at 1069. The Florida Legislature, by the
express language contained in section
775.021(4), has expressed its clear
intent that a person who “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.”
§
775.021(4)(a), Fla....
...extension here, dual attempted homicide convictions and sentences for a
single attempted death) simply has no place within the statutory scheme. As
the Court concluded in Maisonet-Maldonado,
308 So. 3d at 69: “After the
1988 amendment, the plain language of section
775.021 clearly expresses
that offenses which pass the codified Blockburger test should be punished
separately and that there is no exception for offenses arising from a single
death. Accordingly, we conclude that the 1988 amendment to section
775.021 superseded our decision in Houser ....
CopyPublished | Florida 2nd District Court of Appeal | 2002 Fla. App. LEXIS 15659, 2002 WL 31421575
...s blood or breath has to be approved and not a urine test to determine the presence of chemical or controlled substances. When a criminal statute is ambiguous and capable of different constructions, it should be construed in favor of an accused. See § 775.021(1), Fla....
CopyPublished | Florida 3rd District Court of Appeal | 1990 Fla. App. LEXIS 8293, 1990 WL 164820
...tribute to the adverse jury verdict. Other points raised are without merit except as to the defendant's conviction for use of a firearm in the commission of a felony. Since the offense in this case was committed prior to the legislative amendment to section 775.021(4), Florida Statutes (Supp.1988), his conviction and resulting sentence are prohibited and therefore reversed....
CopyPublished | Florida 1st District Court of Appeal | 2014 Fla. App. LEXIS 17629, 2014 WL 5462415
...
94 So.3d 662 , 664 (Fla. 5th DCA 2012). Like the defendant in Miles, Silvers was convicted of multiple violations of the same *849 statute based upon multiple unlawful touchings of the same victim during a single criminal episode. Neither the battery statute, nor section
775.021(4), Florida Statutes, permits multiple convictions and sentences under these circumstances....
CopyPublished | Florida 4th District Court of Appeal | 2008 Fla. App. LEXIS 16785, 2008 WL 4722762
...same primary evil.” See Paul,
934 So.2d at 1175 (where crimes are not intended to punish same primary evil but address different evils, and two crimes are not merely degree variants of the same core offense, separate punishments are authorized by §
775.021(4)(b))....
CopyPublished | Florida 5th District Court of Appeal | 2016 Fla. App. LEXIS 16042
...battery (one prior) and domestic battery by strangulation, and one consisting of felony
battery (one prior) and battery on a law enforcement officer, violated double jeopardy.
113 So. 3d at 108. This Court reasoned that both pairs of convictions ran afoul of section
775.021(4)(b)2., Florida Statutes (2009), which forbids convictions of two offenses that
are “different degrees of the same offense.” Id....
CopyPublished | Florida 4th District Court of Appeal
...construe criminal statutes, and . . . ‘when the language is susceptible to
differing constructions, [the statute] shall be construed most favorably to
the accused.’” Johnson v. State,
602 So. 2d 1288, 1290 (Fla. 1992) (third
alteration in original) (quoting §
775.021(1), Fla....
CopyPublished | Florida 5th District Court of Appeal | 2007 Fla. App. LEXIS 16851, 2007 WL 3118865
...§
787.02(3)(a), Fla. Stat. (2005). . §
800.04(5)(c)2, Fla. Stat. (2005). .§
784.03, Fla. Stat. (2005). . Moore trapped the victim in a hotel elevator, where he molested her. . The exact wording of section
787.02(3)(b), Florida Statutes, is as follows: "Pursuant to §
775.021(4), nothing contained herein shall be construed to prohibit the imposition of separate judgments and sentences for the first degree offense described in paragraph (a) and for each separate offense enumerated in sub-paragraphs (a) 1.-5.” We believe that the Legislature intended to state that nothing contained in section
775.021(4) shall be construed to prohibit the imposition of separate judgments and sentences for first degree false imprisonment and for each offense enumerated in subparagraphs (a) 1.-5....
...ardy ("absent an explicit statement of legislative intent to authorize separate punishments for two crimes)....” Paul,
934 So.2d at 1172 (quoting Gaber v. State,
684 So.2d 189, 192 (Fla.1996)). In Florida, the Blockburger test has been codified in section
775.021, Florida Statutes....
CopyPublished | Florida 2nd District Court of Appeal
...harmful material to a minor in violation of section
847.0138, the question of whether the
statutory elements of that offense are subsumed by the statutory elements of unlawful
1
Blockburger v. United States,
284 U.S. 299 (1932); see also
§
775.021(4)(a), Fla....
CopyPublished | Florida 1st District Court of Appeal | 1991 Fla. App. LEXIS 10739, 1991 WL 216497
...uly 30, 1990. He argues that he should not have been convicted and sentenced for the aggravated assault and the simple battery because the statutory elements of those crimes are subsumed by the statutory elements of robbery with a deadly weapon. See section 775.021(4), Florida Statutes (1989)....
CopyPublished | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 8148, 1990 WL 159653
...Formerly, we would have reversed the consecutive sentences imposed, emanating from this single criminal episode, on the authority of State v. Boatwright,
559 So.2d 210 (Fla.1990). However, the Boatwright opinion, in footnote 3, acknowledged that the amendment to section
775.021(4)(a), Florida Statutes (1989) was not applicable in that case....
CopyPublished | Florida 4th District Court of Appeal | 2013 WL 5730015, 2013 Fla. App. LEXIS 16770
... Demps v. State, 965 So.2d *1189 1242, 1243 (Fla. 4th DCA 2007). A conviction that violates double jeopardy constitutes fundamental error that may be raised for the first time on appeal. Kilmartin v. State,
848 So.2d 1222, 1224 (Fla. 1st DCA 2008). Section
775.021(4)(b)2., Florida Statutes, precludes separate convictions and sentences where the “[o]f-fenses ......
CopyPublished | Court of Appeals for the Eleventh Circuit
Laws Ch. 2006-235, § 1, codified at Fla. Stat. §
775.21(2)(g) (2006); see Fla. Stat. §
943.0435(1)(c)
CopyPublished | Florida 5th District Court of Appeal | 2016 Fla. App. LEXIS 15693
...In Shelley , the Court explained that “because the statutory elements of solicitation are entirely subsumed by the statutory elements of traveling after solicitation, the offenses are the same for purposes of the Blockburger same-elements test codified in section 775.021(4), Florida Statutes.” , Id....
CopyPublished | Florida 2nd District Court of Appeal
...JAC, we conclude that we
have no authority to add this language to this statute. It is a fundamental principle of
Florida jurisprudence that penal statutes must be strictly construed. State v. Chubbuck,
141 So. 3d 1163, 1170 (Fla. 2014); see also §
775.021(1), Fla....
CopyPublished | Supreme Court of Florida
...,
the rule of lenity. “[W]hen criminal statutes are subject to competing, albeit
reasonable, interpretations, they must be ‘strictly construed . . . most favorably to
the accused.” Polite v. State,
973 So. 2d 1107, 1111 (Fla. 2007) (quoting §
775.021(1), Fla. Stat. (2002)). This extremely important statutory canon is
codified in section
775.021(1), Florida Statutes (2012), which provides that, “[t]he
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.” §
775.021(1), Fla....
....23’s prohibition on the possession
of firearms by felons is “clearly absurd.”
The proper disposition of this case turns on the definition of “antique
firearm” set forth in section
790.001(1). Under the rule of lenity codified in
section
775.021(1), this definition must “be strictly construed.” Accordingly, to
the extent that “the language” of the definition “is susceptible of differing
constructions,” it must “be construed most favorably to the accused.”
§
775.021(1), Fla....
CopyPublished | Florida 1st District Court of Appeal
be construed most, favorably to the accused.” §
775.021(1), Fla. Stat. (2014); see Thompson v. State,
CopyPublished | Florida 5th District Court of Appeal | 2000 Fla. App. LEXIS 13653, 2000 WL 1545036
...he prohibition against double jeopardy, and that the court erred in not charging the jury with the lesser included offense of attempted burglary of a conveyance. As we pointed out in Grubbs I where appellant raised the same double jeopardy argument, section 775.021(4)(b), Florida Statutes, expresses the intent of the legislature that there be a separate conviction and sentence for each criminal offense, unless one of the offenses is a degree of the other, a necessarily included offense subsumed in the other, or both offenses are identical....
CopyPublished | Florida 3rd District Court of Appeal
declaring him to be a sexual predator pursuant to section
775.21, Florida Statutes, for a qualifying offense
CopyPublished | Florida 2nd District Court of Appeal
transient address, contrary to Florida Statute
775.21. (3 DEG FEL) (LEVEL 7) Notwithstanding
CopyPublished | Florida 4th District Court of Appeal | 2006 Fla. App. LEXIS 17275, 2006 WL 2956509
...State,
682 So.2d 79, 81 (Fla.1996)). A determination of this legislative intent involves a two-part inquiry: first, the court must engage in the Blockburger 1 same elements test, i.e., “whether each offense has an element that the other does not,” (codified at section
775.021(4)(a)) and, second, even if each of the offenses has an element that the other does not, the court must determine if one of the exceptions set forth in section
775.021(4)(b) applies and nonetheless precludes separate convictions and sentences....
...ctions for solicitation to commit first degree murder and conspiracy to commit first degree murder are precluded because this case fits within the statutory exception for “[o]ffenses which are degrees of the same offense as provided by statute.” § 775.021(4)(b)2., Fla. Stat. In determining whether the second exception in section 775.021(4)(b) applies, it is appropriate to look to whether the two offenses arising from the single criminal episode are simply varying degrees of the same core offense, i.e., are the two crimes directed at the same evil....
CopyPublished | District Court of Appeal of Florida | 1995 Fla. App. LEXIS 10919, 1995 WL 607756
...Having now considered a response filed on behalf of the state and petitioners’ reply thereto, we find that the aggravated battery prosecutions are not barred by the prior disorderly conduct convictions. The Florida Legislature has codified the constitutional protection against double jeopardy in section 775.021(4), Florida Statutes....
CopyPublished | Florida 1st District Court of Appeal
Simmons qualified as a sexual predator under section
775.21(4)(a)1.a., Florida Statutes, as he was convicted
CopyPublished | Florida 5th District Court of Appeal
...In Shelley, the Court
explained that "because the statutory elements of solicitation are entirely subsumed by
the statutory elements of traveling after solicitation, the offenses are the same for
purposes of the Blockburger same-elements test codified in section 775.021(4), Florida
Statutes." Id....
CopyPublished | Florida 4th District Court of Appeal
...meaning of the actual statute in
dispute. However, the rule of lenity is “a canon of last resort.” Paul v.
State,
129 So. 3d 1058, 1064 (Fla. 2013) (citing Kasischke,
991 So. 2d at
814).
As our supreme court explained in Conage, “[t]hrough section
775.021(1), Florida Statutes, the Legislature has elevated lenity from a
9
canon of construction to a statutory command.” 346 So....
...But
“[i]n Florida, the rule of lenity is a default rule that comes into play at the
end of the interpretative process” only “if the statute remains ambiguous
after consulting traditional canons of statutory construction.” Id. at 603
(quoting Paul,
129 So. 3d at 1064); see also §
775.021(1), Fla....
CopyPublished | Florida 4th District Court of Appeal | 2014 Fla. App. LEXIS 16792, 2014 WL 5149148
...ihill v. State,
848 So. 2d 442,
444 (Fla. 4th DCA 2003). Whether double jeopardy is violated is a legal
determination, reviewed de novo. State v. Paul,
934 So. 2d 1167, 1171
(Fla. 2006) (citing State v. Florida,
894 So. 2d 941, 945 (Fla. 2005)).
Section
775.021(4)(a), Florida Statutes (2009), requires the use of the
Blockburger1 “same elements” test in determining if multiple convictions
and punishments are allowed for crimes committed during the same
criminal episode. Ramirez v. State,
113 So. 3d 105, 107 (Fla. 5th DCA
2013). If each offense “has an element that the other does not, the court
must then determine if one of the exceptions set forth in section
775.021(4)(b) applies.” Id....
CopyPublished | Florida 2nd District Court of Appeal | 1990 Fla. App. LEXIS 7847, 1990 WL 152195
...As in V.A.A., we certify to the Florida Supreme Court the following question of great public importance: WHEN A DOUBLE JEOPARDY VIOLATION IS ALLEGED BASED ON THE CRIMES OF SALE AND POSSESSION (OR POSSESSION WITH INTENT TO SELL) OF THE SAME QUANTUM OF CONTRABAND AND THE CRIMES OCCURRED AFTER THE EFFECTIVE DATE OF SECTION 775.021, FLORIDA STATUTES (1988 SUPP.), IS IT IMPROPER TO CONVICT AND SENTENCE FOR BOTH CRIMES? SCHOONOVER, C.J., and RYDER and CAMPBELL, JJ., concur.
CopyPublished | Florida 4th District Court of Appeal | 2006 Fla. App. LEXIS 16941, 2006 WL 2872590
...for the same conduct. Amends. V, XIV, U.S. Const.; Art. I, § 9, Fla. Const. This is a fundamental right that may be raised for the first time on appeal. Tannihill v. State,
848 So.2d 442, 444 (Fla. 4th DCA 2003). Florida has codified this right in section
775.021, Florida Statutes (2003)....
CopyPublished | Florida 5th District Court of Appeal | 2014 Fla. App. LEXIS 15807, 2014 WL 5039699
...with intent to defraud are subsumed within the general theft statute and therefore double jeopardy applies. We review a claim of double jeopardy de novo. Bailey v. State,
21 So.3d 147, 149 (Fla. 5th DCA 2009). The Block-burger 2 test, as codified in section
775.021(4)(a), Florida Statutes (2014), considers offenses to be separate if “each offense requires proof of an element that the other does not.” Here, Appellant’s conviction for hiring a vehicle with the intent to defraud required the...
CopyPublished | Florida 2nd District Court of Appeal | 2014 Fla. App. LEXIS 21532, 2014 WL 8764326
...(4) reflect a clear
legislative intent to punish the offenses separately"); State v. Murphy,
124 So. 3d 323,
330 (Fla. 1st DCA 2013).
Without a specific statement of legislative intent, we must apply the
Blockburger1 analysis under section
775.021(4), Florida Statutes (2011), and determine
whether the receiving and communication device offenses contain an element that is
1
Blockburger v....
CopyPublished | Florida 5th District Court of Appeal | 2006 Fla. App. LEXIS 18739, 2006 WL 3228578
...Double Jeopardy Analysis Both the Fifth Amendment to the United States Constitution and Article I, Sec *928 tion 9 of the Florida Constitution protect persons from being put in jeopardy twice for the same offense. Our supreme court recently reiterated that it looks to the Blockburger 2 test, as codified in section
775.021(4), Florida Statutes, to determine whether double jeopardy has been violated. State v. Paul,
984 So.2d 1167 (Fla.2006). Section
775.021(4), Florida Statutes (2005), states: (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 b...
...Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense. (Emphasis added). The analysis involves two steps. Gordon v. State,
780 So.2d 17, 20 (Fla.2001). First, the court must determine whether the offenses each contain an element of proof that the other does not, as stated in section
775.021(4)(a). If they do not, double jeopardy bars multiple prosecutions or convictions. If they each contain separate elements, then the court must determine if one of the three exceptions in section
775.021(4)(b) applies....
...The first exception is merely a restatement of the same elements test in subsection (4)(a). The second exception is referred to as the “degree variants” test. The third exception deals with necessary lesser included offenses. a. The Blockburger or “Same Elements” Test Blockburger and section 775.021(4)(a) require courts to first examine whether “each offense requires proof of an element that the other does not....” This step is referred to as the “same elements” test....
...g that for both crimes, the State would adduce proof of the same facts, ie. that on August 9, 2005, Duff was driving with a suspended or revoked license. This argument runs afoul of the “same elements” test, as expressed in the plain language of section 775.021(4)(a)....
...In other words, this test focuses on comparing the statutory elements, not the underlying pleadings or proof. Duff also argues that Cooke does not control this case because the court in Cooke did not consider the “degree variants” exception in section 775.021(4)(b)(2)....
...ense distinguished only by degree factors.” Id. at 154 . However, in Gordon v. State,
780 So.2d 17 (Fla.2001), the supreme court noted that Extended to its logical extreme, a broad reading of Sirmons and the second statutory exception would render section
775.021 a nullity....
...Indeed, the plethora of criminal offenses is undoubtedly derived from a limited number of “core” crimes. In no uncertain terms, the Legislature specifically expressed its intent that criminal defendants should be convicted and sentenced for every crime committed during the course of one criminal episode. See § 775.021(4)(b)....
...iolation, are consistent with the limited statutory exception. However, extension of this exception to multiple convictions for attempted first-degree murder, aggravated battery, and felony causing bodily injury would contravene the plain meaning of section 775.021....
...Consequently, the court looked to whether the crimes were intended to punish the same “primary evil”. Id. Both the supreme court and this Court have continued to follow the “primary evil” analysis in applying the “degree variants” exception in section 775.021(4)(b)(2)....
...In effect, we held that dual convictions for driving without a valid driver’s license and driving while license revoked as a habitual traffic offender, arising out of the same incident, violate double jeopardy because they are degree variants (same primary evil), contrary to section 775.021(4)(b)(2), and because one is a necessary lesser included offense of the other, contrary to section 775.021(4)(b)(2)....
...gree variants of the same core offense. Lopez-Vazquez,
931 So.2d at 235 . Based on the above analysis, we conclude that Duffs conviction for driving while license revoked as a habitual traffic offender violates the “degree variants” exception in section
775.021(4)(b)(2), Florida Statutes....
...n that “if two charged crimes share a lesser included offense, or if one offense is a lesser included offense of the other, dual convictions necessarily violate double jeopardy.” Adopting such a rule would be an unwarranted judicial extension of section 775.021(4)(b)(3), in which the Legislature proscribed dual convictions for “[o]ffenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.” This exception applies only to necessary lesser included offenses....
...Florida no longer follows the “same conduct” test. We reverse Duffs subsequent conviction for driving while license revoked as a habitual traffic offender because it violates the “degree variants” principle of double jeopardy, as codified in section 775.021(4)(b)(2), Florida Statutes (2005)....
CopyPublished | Florida 1st District Court of Appeal
...at 663.
The district court decidedly did not hold that a pre-2007 conviction for a qualifying
offense could not be used to designate a probation violator as a violent felony
offender of special concern.
Asserting that the statute is ambiguous, Williamson urges us to employ the
Rule of Lenity. See § 775.021(1), Fla....
CopyPublished | Florida 4th District Court of Appeal
...So, in our case, the
State argues the Second District must have construed “maliciously” to
modify only “touches,” rather than also each other verb.
2 This construction, defining malice in section
843.19(4) as actual malice, is
consistent with the Rule of Lenity and section
775.021(1), Florida Statutes
(2017). Section
775.021(1) states that “[t]he 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.”...
CopyPublished | Florida 1st District Court of Appeal
...Nor is there danger that Mr. Williams could be separately
charged with attempted burglary as that charge was subsumed by
the completed burglary. See Aubuchon v. State,
110 So. 3d 55, 58
3
(Fla. 2d DCA 2013) (“[U]nder section
775.021(4)(b)(2), an attempt
to commit an offense is considered to be subsumed within the
completed offense because the offense of attempt is usually a
degree variant of the primary offense.”).
Appellant relies upon Castillo v....
CopyPublished | Florida 3rd District Court of Appeal | 13 Fla. L. Weekly 2451, 1988 Fla. App. LEXIS 4837, 1988 WL 117175
...See generally, Ferguson v. State,
377 So.2d 709 (Fla.1979). Since section
831.02 is a penal statute, it must give clear notice of the acts it proscribes and should be strictly construed. See Ferguson, supra; State v. Winters,
346 So.2d 991 (Fla. 1977); see also section
775.021(1), Florida Statutes....
CopyPublished | District Court of Appeal of Florida
("The Florida Supreme Court has held that section
775.021, Florida Statutes, does not abrogate the merger
CopyPublished | Florida 1st District Court of Appeal | 2013 WL 5932261, 2013 Fla. App. LEXIS 17698
...above show a prima facie violation of the statute. Appellant argues for application of the rule of lenity, asserting that the statutory language is ambiguous and permits both interpretations advanced by the parties. The rule of lenity is codified in section 775.021(1), Florida Statutes, and provides that “[t]he 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.” § 775.021(1), Fla....
CopyPublished | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 8499, 1990 WL 169463
PER CURIAM. Defendant appeals her convictions for first-degree murder and possession of a firearm while engaged in a criminal offense. The instant offenses occurred on September 8, 1988, several months after the July 1, 1988 effective date of section 775.021(4), Florida Statutes (Supp.1988), the legislative amendment specifying the legislature’s intent that crimes with unique statutory elements be punished separately....
CopyPublished | Florida 1st District Court of Appeal
...Effective October 2014, the feticide statute was amended to criminalize the killing
of an “unborn child,” which is defined as “a member of the species Homo sapiens,
at any stage of development, who is carried in the womb.” §
782.09(1), (5), Fla.
Stat. (2014); §
775.021(5)(e), Fla. Stat. (2014). Also effective October 2014, a new
rule of construction was added to section
775.021, Florida Statutes (2014), which
provides in part as follows:
(5) Whoever commits an act that violates a provision of this code or
commits a criminal offense defined by another statute and thereby
causes the death of...
...Commonwealth v. Morris, 142
4
In 2014, the Legislature amended the definition of “unborn child” to include any
“member[s] of the species Homo sapiens, at any stage of development, who is
carried in the womb.” §§
782.09(1), (5), Fla. Stat. (2014); §
775.021(5)(e), Fla....
CopyPublished | Florida 4th District Court of Appeal | 2005 Fla. App. LEXIS 18781, 2005 WL 3180016
...ingle episode constitute a double jeopardy violation. State v. Florida,
894 So.2d 941, 945 (Fla.2005). Under Blockburger , dual convictions are authorized if each offense contains an element that the other does not. Id. This principle is codified in section
775.021(4), Florida Statutes (2001), which provides: (4)(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 gui...
...requires that Ronda be her stepdaughter’s caregiver and act with culpable negligence in failing to provide her with care, supervision, and services. Therefore, these are clearly different crimes which require proof of different elements. Although section 775.021(4) provides certain exceptions to its ....
CopyPublished | Florida 3rd District Court of Appeal
...These dual convictions and sentences violate
principles of double jeopardy, which “prohibits subjecting a person to multiple
prosecutions, conviction, and punishments for the same criminal offense.”
Valdes v. State,
3 So. 3d 1067, 1069 (Fla. 2009). See also §
775.021(4),
Fla. Stat. (2012). 3
3
Section
775.021(4)(a)–(b) provides:
(4)(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
adjudicat...
CopyPublished | Florida 4th District Court of Appeal
...performing contractual services for a county detention facility.” §
800.09(1)(a)4., Fla. Stat. (2021).
“The intent of the Legislature is to convict and sentence for each
criminal offense committed in the course of one criminal episode or
transaction . . . .” §
775.021(4)(b), Fla. Stat. (2021). One exception to this
rule of construction is for “offenses which require identical elements of
proof.” §
775.021(4)(b)1., Fla....
...800.09(1)(a)4. definition of “employee.” To determine the unit of
prosecution, the crucial provision of section
800.09(2)(a) is the subsection
prohibiting the behavior, not the statute’s definition of an “employee.”
Brown’s reliance upon section
775.021(4)(b)1., Florida Statutes (2021),
is similarly misplaced. Under section
775.021(4)(b)1., an exception to the
legislature’s intent to convict for “each criminal offense committed in the
course of one criminal episode” applies where the “offenses require
identical elements of proof.” Id....
CopyPublished | Florida 5th District Court of Appeal | 9 Fla. L. Weekly 2480, 1984 Fla. App. LEXIS 16388
supra at 1060. Certainly, the provisions of Section
775.021(4), Florida Statutes (1981), do not suggest
CopyPublished | Florida 1st District Court of Appeal
...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.
§ 775.021(4)(b), Fla....
...3d at 1253-54 (“Without an explicit statement of legislative
intent authorizing separate punishments for two crimes, courts
determine whether separate punishable offenses exist through
application of the Blockburger ‘same-elements test,’ as codified in
section 775.021(4), Florida Statutes. Under this test, courts look to
whether ‘each offense requires proof of an element that the other
does not.’” (internal citations omitted) (quoting § 775.021(4)(a),
Fla....
CopyPublished | Supreme Court of Florida
Department of Corrections) §
775.21(6)(b), Fla. Stat. To prove the crime of
CopyPublished | Supreme Court of Florida | 40 Fla. L. Weekly Supp. 653, 2015 Fla. LEXIS 2626, 2015 WL 7566535
...should be read together, he argues that the limitation extension statute should be
construed in light of the definitions found in the education statute, under which,
according to the argument, a public school teacher would not be considered a
5. See § 775.021(1), Fla....
...category of “instructional personnel” in the public education statute indicates an
intent to exclude public school teachers from the reference to “public officer or
employee” in section
775.15(12)(b).
The rule of lenity, as expressed in section
775.021(1), applies when a statute
is “susceptible of differing constructions.” The requirement to construe the
language most favorably to the accused applies when the posited differing
constructions are reasonable....
...ory construction and in particular
the rule of lenity, which in Florida is more than “just an interpretive tool” but is in
- 26 -
fact “a statutory directive.” Kasischke,
991 So. 2d at 814 (citing section
775.021(1), Florida Statutes).
The disparity explained by Judges Altenbernd and Padovano is not simply a
policy disagreement, as the majority erroneously contends, but an expression
directly related to the judiciary’s role to dete...
...’s use of the phrase
“misconduct in office” is not clear and unambiguous but is instead subject to two
reasonable interpretations. As required by generally accepted principles of
statutory construction and by the rule of lenity set forth in section 775.021(1), I
would interpret the statute in the light most favorable to the defendant.
- 27 -
Accordingly, I dissent from the majority’s statutory construction analysis and
would answer the cer...
CopyPublished | Florida 4th District Court of Appeal | 2001 Fla. App. LEXIS 16387, 2001 WL 1471794
...luding the statutory maximum, as defined in s.
775.082, for the primary offense and any additional offenses before the court for sentencing. The sentencing court may impose such sentences concurrently or consecutively.” (Emphasis added)); see also §
775.021(4)(a), Fla....
CopyPublished | Florida 2nd District Court of Appeal | 1990 Fla. App. LEXIS 8892, 1990 WL 180943
...State, we certify to the Florida Supreme Court the following question of great public importance: WHEN A DOUBLE JEOPARDY VIOLATION IS ALLEGED BASED ON THE CRIMES OF SALE AND POSSESSION (OR POSSESSION WITH INTENT TO SELL) OF THE SAME QUANTUM OF CONTRABAND AND THE CRIMES OCCURRED AFTER THE EFFECTIVE DATE OF SECTION 775.021, FLORIDA STATUTES (SUPP.1988), IS IT IMPROPER TO CONVICT AND SENTENCE FOR BOTH CRIMES? FRANK, A.C.J., and PATTERSON and ALTENBERND, JJ., concur.
CopyPublished | Florida 4th District Court of Appeal | 1990 Fla. App. LEXIS 8795, 1990 WL 179107
...ll v. State,
517 So.2d 678 (Fla.1988). 1 AFFIRMED IN PART; REVERSED IN PART. HERSEY, C.J., and ANSTEAD and DELL, JJ., concur. . Hall has been superceded by statute; however, the acts giving rise to the charges occurred prior to the effective date of section
775.021(4), Florida Statutes (Supp.1988).
CopyPublished | Florida 5th District Court of Appeal | 1998 Fla. App. LEXIS 14778, 1998 WL 821761
...e of a child under subsection (4) of the same statute. Hence, the same sexual act committed on victim one also constitutes a lewd act committed in the 'presence of victim two. This conclusion is consistent with the legislative direction contained in section 775.021(4), Florida Statutes, that separate convictions be entered for even a single act if the act violates separate criminal provisions, Simmons also urges that his impeachment on a collateral issue was improper and that he is entitled to a new trial....
CopyPublished | Florida 6th District Court of Appeal
...within the same transaction.
Accordingly, courts apply a three-part analysis to determine whether a double
jeopardy violation occurred. First, to implicate a potential violation, the offenses
must occur “in the course of one criminal transaction or episode.” § 775.021(4)(a),
Fla....
...Third, the
statutory “different elements test,” 1 evaluates the charged offenses’ elements and
explores whether the offenses themselves fall outside the Legislature’s general intent
“to convict and sentence for each criminal offense committed in the course of one
criminal episode or transaction.” See § 775.021(4); see also Graham v....
...“same
elements test” and a “different elements test.” See Trappman,
384 So. 3d at 750
(citing cases).
4
The State concedes that Banda’s offenses occurred during one criminal
transaction under section
775.021(4)(a)....
...lockburger, we need not resolve
this issue because the “different elements test” demonstrates Banda’s crimes did not
violate double jeopardy.
The Florida Legislature has codified the “different elements test” in two
places within section
775.021, Florida Statutes. See Trappman,
384 So. 3d at 750.
First, we must determine whether each of Banda’s offenses include an element the
other does not, “without regard to the accusatory pleading or the proof adduced at
trial.” See §
775.021(4)(a); see also Trappman, 384 So....
...3d at 750 (stating that
different-elements test “is reflected in the text of the last sentence of subsection
4(a)”). Second, we must analyze three statutory exceptions to the Legislature’s
general intent to punish each crime committed in one criminal episode. See §
775.021(4)(b); see also Trappman, 384 So....
...Banda believed to be a minor, 3) via electronic mail. 2 See §
847.0138(2); Fla. Std.
Jury Instr. (Crim.) 11.21. The offenses’ elements differ; transmission requires
sending a harmful image to someone believed to be a minor, but solicitation does
not.
Thus, we must address section
775.021(4)(b)’s exceptions and ask whether
solicitation and transmission: 1) “require identical elements of proof”; 2) “are
degrees of the same offense as provided by statute”; or 3) “are lesser offenses the
statutory elements of which are subsumed by the greater offense.” No exception
fits....
...(Crim.) 11.21 (listing unlawful use of a two-way
communication device as sole category one lesser-included offense).
Thus, there is no exception to the Legislature’s general intent to impose
separate punishments for each act Banda committed during one criminal episode.
See § 775.021(4)(a)–(b)....
CopyPublished | Florida 4th District Court of Appeal | 2007 Fla. App. LEXIS 18139, 2007 WL 3355600
PER CURIAM. Affirmed. Appellant demonstrated no illegality in the trial court’s imposing consecutive sentences in this case, where the sentences were not enhanced. See §
921.16(1), Fla. Stat. (2000); §
921.0024(2), Fla. Stat. (2000); §
775.021(4), Fla....
CopyPublished | Florida 1st District Court of Appeal
...rmined if the convictions were
predicated on distinct acts. Id. If the offenses are not predicated on distinct acts
and occurred within the same criminal episode, it must be decided if the offenses
survive a “same elements” test as defined by section 775.021, Florida Statutes,
which is commonly referred to as the Blockburger1 analysis. Id. Section 775.021,
Florida Statutes (2011), provides in part:
(4)(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 convic...
CopyPublished | District Court of Appeal of Florida | 1987 Fla. App. LEXIS 10998, 12 Fla. L. Weekly 2625
...State,
515 So.2d 161 (Fla.1987) and State v. Capenter,
417 So.2d 986 (Fla.1982). We therefore affirm the separate convictions for battery of a law enforcement officer and obstructing an officer with violence and approve separate sentences for each offense in this case pursuant to section
775.021(4), Florida Statutes (1985)....
CopyPublished | District Court of Appeal of Florida | 1994 Fla. App. LEXIS 10830, 1994 WL 627367
...to obtain checks from an insurance company. These crimes occurred on several different days. After obtaining the checks from the insurance company, Sinclair negotiated them to receive money. Again, these crimes occurred on separate and diverse days. Section 775.021(4)(a) and (b), Florida Statutes (1991), allows a defendant to be convicted and sentenced for several crimes if they are listed in the same information, do not violate the Blockburger 3 test and are not degrees of the same offense....
...ment as part of, or in support of, a claim for payment or other benefit pursuant to an insurance policy, knowing that such statement contains any false, incomplete or misleading information; grand theft does not. Therefore, neither Blockburger 4 nor section 775.021(4)(a) and (b), Florida Statutes (1991) would bar multiple convictions in the same prosecution....
...tes, and fraudulent sale of a counterfeit controlled substance, under section
817.563, Florida Statutes. Thompson sold counterfeit rock cocaine to an undercover officer. He argued that both of the charges arose out of the same act and were barred by section
775.021(4)(b) of Florida’s double jeopardy statute....
CopyPublished | Florida 4th District Court of Appeal
...One possible reading of section
837.055(2), Florida Statutes (2013), is that the child who is the subject of
investigation suffers harm after the giving of the false information, without
there being any causal connection. If a criminal statute is ambiguous, we
would normally apply the rule of lenity in section
775.021(1), Florida
Statutes (2017), and construe the statute “most favorably to the accused.”
As the majority notes, the legislature amended the statute in response
to the Casey Anthony case, where the death of a child preceded a mother’s
giving of false information....
CopyPublished | Florida 4th District Court of Appeal | 2005 Fla. App. LEXIS 6524, 2005 WL 1026187
...ense has an element that the other does not, Desire v. State,
829 So.2d 948, 950 (Fla. 4th DCA 2002); Blockburger v. United States,
284 U.S. 299, 304 ,
52 S.Ct. 180 ,
76 L.Ed. 306 (1932); or determine whether it falls within an exception pursuant to section
775.021(4)(b), Florida Statutes. Section
775.021(4)(a) mandates that we resolve the double jeopardy issue comparing the statutory elements of the crimes....
...State,
698 So.2d 1206, 1208 (Fla.1997). Under this test, a defendant may be convicted of multiple crimes for the same conduct, as the offenses are treated separately based on an elements analysis, regardless of pleadings or proof. State v. Cohen,
696 So.2d 435 (Fla. 4th DCA 1997). Section
775.021(4)(b) explicitly recognizes a policy favoring convictions for each separate offense committed except where the offenses “require identical elements of proof,” are “degrees of the same offense,” or are lesser offenses, the elements of which are subsumed by the greater offense....
...Here, as in Applewhite , resisting is neither a necessarily included offense or a permissive lesser included offense of escape. In any event, even if resisting may be considered a permissive lesser of escape under some circumstances, it would not be considered a lesser offense for the purpose of applying section 775.021(4)(b)....
CopyPublished | Florida 2nd District Court of Appeal
...out of the
same conduct in a single criminal episode, we must determine whether those offenses
violate the "same elements" test under Blockburger v. United States,
284 U.S. 299
(1932), or whether multiple punishments are otherwise precluded under section
775.021(4), Florida Statutes (2011)....
...3d 1054, 1058-59 (Fla. 2d DCA 2016).
Nothing in either section
934.215 or in section
847.0138(2) explicitly
authorizes multiple punishments when the same conduct violates both statutes.1
Accordingly, we look to Blockburger, as codified at section
775.021(4), which provides:
(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...
...ent that the
other does not, we confine our analysis to the statutory elements of each offense
without regard to the specific charges or to the evidentiary record. See Roughton v.
State,
185 So. 3d 1207, 1210 (Fla. 2016) ("[T]he plain language of section
775.021(4)(a) ....
...anyone via any mechanism,2 and so section
847.0138(2) requires proof of multiple
elements that section
934.215 does not. But Weitz argues that the third exception—that
the elements of the lesser offense are subsumed by the elements of the greater, section
775.021(4)(b)(3)—applies because the elements of section
934.215 are subsumed by
the elements of section
847.0138(2)....
...1st DCA 2008), it does not matter that offenses under both section
847.0138(2) and section
934.215 are third-degree felonies.
4InValdes,
3 So. 3d at 1077, the supreme court receded from language in
Paul, Florida, and Gordon v. State,
780 So. 2d 17 (Fla. 2001), regarding how to analyze
the exception in section
775.021(4)(b)(2). Valdes does not address the exception in
section
775.021(4)(b)(3), so the analysis of that exception in Paul and Florida remains
good law.
-5-
Boland v....
CopyPublished | District Court of Appeal of Florida | 1993 Fla. App. LEXIS 4759, 1993 WL 136091
...We conclude that the double jeopardy clauses of the constitutions of Florida and of the United States preclude appellant’s conviction for both possession of cocaine and possession of the same cocaine in a county detention facility. In making this determination, we reject the state’s argument that section 775.021(4)(a), Florida Statutes (1991), permits the dual convictions and sentences imposed in this case....
...893.02(4); ... *196 (2) Whoever violates subsection (1) shall be guilty of a felony of the third degree, ... . Blockburger v. United States,
284 U.S. 299 ,
52 S.Ct. 180 ,
76 L.Ed. 306 (1932). . The test has been codified in the Florida Statutes at section
775.021(4), which provides: (4)(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 se...
...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. § 775.021(4), Fla.Stat....
CopyPublished | Supreme Court of Florida | 1990 WL 59663
...ntainer as a separate offense from transfer of the drug itself. McCray v. State,
531 So.2d 408, 409 (Fla. 1st DCA 1988). Very shortly after Carawan v. State,
515 So.2d 161 (Fla. 1987), was issued, the legislature spoke loud and clear when it amended section
775.021(4), Florida Statutes (1985)....
...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. Ch. 88-131, § 7, Laws of Fla. (codified at § 775.021(4)(a), (b), Fla....
...This Court has recognized the propriety of considering such subsequent legislation in arriving at the proper interpretation of the prior statute. Gay v. Canada Dry Bottling Co.,
59 So.2d 788 (Fla. 1952). (Citations omitted.) In light of the unambiguous language in the statute in question and the amendment to section
775.021(4) cited above, it seems to me crystal clear that the legislature intended to endeavor to impede the flow of drugs in this state by punishing as a separate crime the delivery of containers used for packaging drugs, as spelled out in the statute under consideration....
CopyPublished | District Court of Appeal of Florida | 1996 Fla. App. LEXIS 5503, 1996 WL 279230
...First, the increase to thirty years constituted a departure because the recommended guideline sentence for Cleveland’s manslaughter count was 85.5 to 141.75 months. In addition, the consecutive sentences for attempted manslaughter and shooting into a building also constitute a departure. Section 775.021(4), Florida Statutes (1993), does provide that a separate sentence should be imposed for each offense, and that the sentencing judge may impose these sentences concurrently or consecutively....
CopyPublished | Florida 5th District Court of Appeal | 2010 Fla. App. LEXIS 7673, 2010 WL 2131908
...[11] As for the double jeopardy issue, our decision is controlled by Swilley v. State,
845 So.2d 930 (Fla. 5th DCA 2003). Contrary to the argument advanced by the State, Swilley was not implicitly overruled by Valdes v. State,
3 So.3d 1067 (Fla.2009). In Valdes, our high court addressed the interpretation of section
775.021(4)(b)2., Florida Statutes, which addresses offenses that are degrees of the same offense. Our decision in Swilley was based on section
775.021(4)(b)3....
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 4779, 1991 WL 120201
SMITH, Judge. Appellant appeals his convictions for aggravated assault with a deadly weapon and improper exhibition of a weapon, contending the dual convictions violate double jeopardy principles. We affirm. * Section 775.021(4)(b), Florida Statutes (Supp.1988), permits dual convictions and sentences for criminal offenses arising *613 out of one act, episode or transaction where each offense has at least one statutory element that the other does not....
...isplaying a weapon. It is not necessary that the defendant make a threatening gesture with the weapon to be convicted of violating section
790.10. Thus, contrary to appellant’s assertion, this case does not fall under the “subsumed” exception, section
775.021(4)(b)(3), since aggravated assault does not necessarily include improper exhibition of a weapon....
CopyPublished | Supreme Court of Florida | 12 Fla. L. Weekly 259, 1987 Fla. LEXIS 1921
been reviewed and revised to conform it to section
775.021(4), Florida Statutes (1976), as amended thereafter
CopyPublished | Florida 1st District Court of Appeal | 2008 Fla. App. LEXIS 7486, 2008 WL 2167861
...re has authorized the subsequent prosecution in these circumstances. See e.g. M.P. v. State,
682 So.2d 79 (FIa.1996); see also Missouri v. Hunter,
459 U.S. 359 ,
103 S.Ct. 673 ,
74 L.Ed.2d 535 (1983). The Florida legislature has stated its intent in section
775.021(4), Florida Statutes....
...of an element the other *1281 does not, and except for crimes which are degrees of the same offense as provided by statute or when one of the crimes is a lesser offense of the other and the statutory elements are subsumed by the greater offense. See § 775.021(4)(a), (b), Fla. Stat. Application of the section 775.021(4) standard has resulted in criminal contempt adjudications and convictions for related substantive offenses being allowed' when the substantive offense is not subsumed within the act of contempt....
...Johnson,
676 So.2d 408 (Fla.1996); Richardson, supra. On the other hand, when the elements of the substantive offense are entirely subsumed within an adjudication or conviction for violation of an injunction, separate convictions for the substantive offenses have been precluded under section
775.021(4)....
...ntirely subsumed within the other. Furthermore, a section
784.03(2) felony battery is not an enhancement or degree of a section
784.03(1) battery, and is instead a separate substantive offense. See Bates v. State,
825 So.2d 1025 (Fla. 1st DCA 2002). Section
775.021(4) permits the felony battery prosecution in these circumstances....
CopyPublished | Florida 2nd District Court of Appeal | 2015 Fla. App. LEXIS 7745, 2015 WL 2432060
...apply the Blockburger2 test to determine if the offenses with which Mr. Hutto was
2
Blockburger v. United States,
284 U.S. 299 (1932).
-4-
charged are separate. See §
775.021(4)(a) (codifying the Blockburger test: "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")....
...2006) (defining
necessarily lesser included offenses as "those offenses in which the statutory elements
of the lesser included offense are always subsumed within those of the charged
-5-
offense"); see also § 775.021(4)(b)(2) (providing that the legislature does not intend for
separate sentencing for "[o]ffenses which are degrees of the same offense as provided
by statute")....
CopyPublished | Florida 4th District Court of Appeal | 2013 WL 2218007, 2013 Fla. App. LEXIS 8134
...With respect to ground two, see State v. McCloud,
577 So.2d 939 (Fla.1991) (holding it is not a double jeopardy violation for a defendant to be convicted of both sale and possession of the same quan- *935 turn of cocaine, after the effective date of section
775.021, Florida Statutes (Supp....
CopyPublished | Florida 1st District Court of Appeal | 1997 Fla. App. LEXIS 5572, 1997 WL 266634
...on of a firearm. Mr. Legette contends that the dual convictions constitute a double jeopardy violation. Despite the state’s concession of error on this issue, we conclude these two offenses each require proof of an element that the other does not. § 775.021(4)(a), Fla....
CopyPublished | Florida 4th District Court of Appeal
...conviction can arise from a single violation of the driving with a suspended
license statute even though injury results to several persons.”
679 So. 2d
at 765. We are constrained to follow that result. Section
322.34(6)
contains no language similar to that found in the DUI statute, section
775.021(4)(b), Florida Statutes (2015), which states that the legislature
intends to convict and sentence a defendant for “each criminal offense”
they commit in the course of one criminal transaction, unless several
exceptions are present....
CopyPublished | Florida 4th District Court of Appeal | 2004 Fla. App. LEXIS 6968, 2004 WL 1103684
...The statutory rule of lenity supports such a narrow interpretation of the term “billy.” The legislature has stated that criminal statutes “shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.” § 775.021(1), Fla....
CopyPublished | District Court of Appeal of Florida | 14 Fla. L. Weekly 1233, 1989 Fla. App. LEXIS 2797, 1989 WL 51206
...Appellant entered a bank and gave a demanding note to the teller, pointed to the money drawer, leaned over, put his hand in his pocket and said “now.” The teller testified she gave up the money because appellant looked mean and she was afraid. Under Carawan v. State,
515 So.2d 161 (Fla.1987) and section
775.021(4), Florida Statutes (Supp.1988), it is error to convict for two crimes where one is lesser than the other and “the statutory elements of which are subsumed by the greater offense.” §
775.021(4)(b)(3), Fla.Stat....
CopyPublished | Florida 1st District Court of Appeal | 2017 WL 2126359, 2017 Fla. App. LEXIS 6929
...whether the
convictions were predicated on the same or distinct acts; and (3) if the convictions
did not occur during separate episodes and were not based on distinct acts, whether
the two convictions “survive a same elements test as defined by section 775.021,
Florida Statutes, [(2014)], commonly referred to as the Blockburger
analysis.” Partch v....
CopyPublished | Florida 5th District Court of Appeal | 14 Fla. L. Weekly 1191, 1989 Fla. App. LEXIS 2703, 1989 WL 49605
...ly missile into a building offense. Additionally, we find this case distinguishable from Torres v. State,
527 So.2d 272 (Fla. 3d DCA 1988), review denied,
536 So.2d 246 (Fla.1988), because the instant offense took place after the Legislature amended Section
775.021(4)(a), Florida Statutes, to provide that “[w]hoever 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...
CopyPublished | District Court of Appeal of Florida | 1978 Fla. App. LEXIS 15573
...Appellant was adjudicated guilty of these charges and sentenced to five years on each count to be served concurrently. This sentence was error because the appellant could only be sentenced for the higher of the two crimes. Story v. State,
355 So.2d 1213 (Fla. 4 DCA 1978). *859 The appellee has referred us to Section
775.021(4), Florida Statutes (1976) 1 but we have determined that statute is inapplicable here because the appellant committed the crimes before the effective date of the statute. State v. Munford,
357 So.2d 706 (Fla. 1978). The convictions and the sentence for the delivery are affirmed but the sentence for the possession is set aside. ANSTEAD and MOORE, JJ., concur. . §
775.021(4), Fla.Stat.(1976): “Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separate...
CopyPublished | Florida 2nd District Court of Appeal | 2017 WL 1969499, 2017 Fla. App. LEXIS 6774
...1st DCA 2013) (reversing a
conviction for simple battery because the defendant's felony battery and simple battery
convictions arose from the same acts and because felony battery "wholly subsumes
-2-
battery"); see also § 775.021(4), Fla....
CopyPublished | Florida 2nd District Court of Appeal
"custody"—in other sections of chapter 775. See, e.g., §
775.21(10)(g), Fla. Stat. (2016) (providing that third-degree
CopyPublished | Florida 2nd District Court of Appeal | 2012 WL 1648289, 2012 Fla. App. LEXIS 7410
...We are not inclined to believe that this statute is ambiguous in this regard. One cannot “conceal the location” of a child in violation of a court order unless the order requires one to disclose the child’s location. Even if the statute is ambiguous, it must be construed in favor of the defendant. See § 775.021(1), Fla....
CopyPublished | Florida 5th District Court of Appeal
designating him as a sexual predator under section
775.21, Florida Statutes (2018). The order was entered
CopyPublished | Florida 1st District Court of Appeal
...risdiction.
May 10, 2018
ROBERTS, J.
The petitioner, Charles Vansmith, petitions this Court for a
writ of certiorari. The petitioner argues that the trial court
departed from the essential elements of law by using section
775.021(4)(a), Florida Statutes (2017), to determine that it still
had jurisdiction to keep him placed in a secure residential facility
based on section
916.303(3), Florida Statutes (2017)....
...The petitioner argued that the trial court
only had jurisdiction for fifteen years based on section
916.303(3).
The trial court denied the motion finding that it had jurisdiction
for thirty years based on the court’s ability to structure sentences
consecutively in accordance with section
775.021(4)(a), which
prompted the petitioner to file the instant petition for writ of
certiorari.
Certiorari is generally the proper procedural mechanism for
seeking review of an order that involuntarily commits a person.
Dep’t of Children & Families v....
...pursuant to this part exceed the maximum sentence for
the crime for which he was charged.
At the time, the Legislature enacted the above language in
section
916.13(3), trial courts had been authorized to structure
sentences consecutively under section
775.021(4) for seven years,
see section
775.021(4), Florida Statutes (1976), and singular
versions of words included the plural versions of words for decades,
see section
1.01, Florida Statutes (1941). Because sections
775.021(4) and
1.01(1) had been in existence before the Legislature
enacted the statutory language at issue, the Legislature is
presumed to have known that a trial court could determine that it
had jurisdiction for an extended period of time based on a
consecutive sentencing structure.
The petitioner urges us to apply the rule of lenity, which is
codified in section
775.021(1)....
...Upon examining sections
916.303 and
916.105, we find no evidence
of retribution or deterrence. Since there is no evidence of an intent
to punish a person who has been committed with the aid of section
916.303 and no evidence that section
916.303 criminalizes
behavior, section
775.021(1) does not apply.
Based on the foregoing, we find that the Legislature intended
section
775.021(4)(a) to be applied when determining the
maximum sentence referred to in section
916.303(3). Since the
trial court determined the petitioner’s maximum sentence utilizing
section
775.021(4)(a), it did not depart from the essential elements
of law....
CopyPublished | District Court of Appeal of Florida | 13 Fla. L. Weekly 1115, 1988 Fla. App. LEXIS 1867, 1988 WL 44491
...subsections. Although it is argued by the State that it was the legislative intent that the subsections be interconnected, it is clearly not the language used by the legislature and the Court cannot make such a presumption. Based on Florida Statute 775.021, 1 in strictly construing that statute, it is the clear statement of the legislature to punish individuals for the offense of felony DUI pursuant to 316.1931(2)(b)3 only if there has been a previous violation of subsection (2). We think the trial court’s interpretation of the statute is correct. 2 Any other construction effectuates a rewriting of the statute. The dismissal is affirmed. . 775.021 Rules of construction.— (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....
CopyPublished | Florida 4th District Court of Appeal
...not require proof of a different element. Blockburger v. United States,
284
U.S. 299, 304 (1932). “[A]bsent an explicit statement of legislative intent
to authorize separate punishments for two crimes, application of the
Blockburger . . . ‘same-elements’ test pursuant to section
775.021(4),
Florida Statutes[,] is the sole method of determining whether multiple
punishments are double-jeopardy violations.” State v. Shelley,
176 So. 3d
914, 917 (Fla. 2015) (alterations in original) (quoting Gaber v. State,
684
So. 2d 189, 192 (Fla. 1996)). The Florida Legislature codified exceptions
to the Blockburger test in section
775.021(4), Florida Statutes, which
provides:
(4)(a) ....
...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.
§ 775.021(4), Fla....
...nt or a
managed care plan for payment.
§
409.920(2)(a)1., Fla. Stat. (2021).
On appeal, the State asserts that grand theft and Medicaid provider
fraud each require proof of an element the other does not and that none of
the exceptions in section
775.021(4)(b) apply....
...The State argues the trial court erred in vacating the defendants’
convictions for grand theft based on double jeopardy grounds, asserting
that Medicaid provider fraud and grand theft charges each have an
element the other does not and none of the exceptions in section
775.021(4)(b), Florida Statutes (2020), are met....
...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.
§ 775.021(4), Fla....
...The “agency” is the Agency for Health
Care Administration. §
409.920(1)(a), Fla. Stat. (2020).
Here, “each offense requires proof of an element that the other does not,
without regard to the accusatory pleading or the proof adduced at trial.”
See §
775.021(4)(a), Fla....
CopyPublished | Florida 4th District Court of Appeal
...not require proof of a different element. Blockburger v. United States,
284
U.S. 299, 304 (1932). “[A]bsent an explicit statement of legislative intent
to authorize separate punishments for two crimes, application of the
Blockburger . . . ‘same-elements’ test pursuant to section
775.021(4),
Florida Statutes[,] is the sole method of determining whether multiple
punishments are double-jeopardy violations.” State v. Shelley,
176 So. 3d
914, 917 (Fla. 2015) (alterations in original) (quoting Gaber v. State,
684
So. 2d 189, 192 (Fla. 1996)). The Florida Legislature codified exceptions
to the Blockburger test in section
775.021(4), Florida Statutes, which
provides:
(4)(a) ....
...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.
§ 775.021(4), Fla....
...nt or a
managed care plan for payment.
§
409.920(2)(a)1., Fla. Stat. (2021).
On appeal, the State asserts that grand theft and Medicaid provider
fraud each require proof of an element the other does not and that none of
the exceptions in section
775.021(4)(b) apply....
...The State argues the trial court erred in vacating the defendants’
convictions for grand theft based on double jeopardy grounds, asserting
that Medicaid provider fraud and grand theft charges each have an
element the other does not and none of the exceptions in section
775.021(4)(b), Florida Statutes (2020), are met....
...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.
§ 775.021(4), Fla....
...The “agency” is the Agency for Health
Care Administration. §
409.920(1)(a), Fla. Stat. (2020).
Here, “each offense requires proof of an element that the other does not,
without regard to the accusatory pleading or the proof adduced at trial.”
See §
775.021(4)(a), Fla....
CopyPublished | Florida 1st District Court of Appeal | 2001 Fla. App. LEXIS 5967
order declaring him a sexual predator under section
775.21, Florida Statutes (2000). J.M. contends that
CopyPublished | Florida 2nd District Court of Appeal | 1990 Fla. App. LEXIS 1430
...State,
528 So.2d 910 (Fla. 2d DCA 1988), approved sub nom, State v. Smith,
547 So.2d 613 (Fla.1989) (also denying retroactive application of the relevant statute as amended). We turn now to the July 5, 1988, crimes. Because they were committed after the effective date of section
775.021, Florida Statutes (1988), the statute, as amended, applies to them....
...In its amended version, the legislature has clarified its intent by mandating separate convictions and sentences for each criminal offense committed in one criminal episode unless the crimes fit into *315 one of three enumerated exceptions outlined in section 775.021(4)(b)....
...Accordingly, we certify the following question to the supreme court as one of great public importance: WHEN A DOUBLE JEOPARDY VIOLATION IS ALLEGED BASED ON THE CRIMES OF SALE AND POSSESSION (OR POSSESSION WITH INTENT TO SELL) OF THE SAME QUANTUM OF CONTRABAND AND THE CRIMES OCCURRED AFTER THE EFFECTIVE DATE OF SECTION 775.021, FLORIDA STATUTES' (SUPP.1988), IS IT IMPROPER TO CONVICT AND SENTENCE FOR BOTH CRIMES? The adjudication of delinquency for the two counts of sale is affirmed; the adjudication of delinquency for the two possession counts is reversed....
CopyPublished | Florida 2nd District Court of Appeal | 2013 WL 845517, 2013 Fla. App. LEXIS 3753
...In most cases, “lesser offenses ‘are those in which the elements of the lesser offense are always subsumed within the greater, without regard to the charging document or evidence at trial.’ ” Pizzo,
945 So.2d at 1206 (quoting State v. Florida,
894 So.2d 941, 947 (Fla.2005), and citing §
775.021(4), Fla....
...In addition, under section 775.031(4)(b)(2), an attempt to commit an offense is considered to be subsumed within the completed offense because the offense of attempt is usually a degree variant of the primary offense. See, e.g., Valdes v. State,
3 So.3d 1067, 1077 (Fla.2009) (holding that section
775.021(4)(b)(2) *59 applies to offenses that are different degrees of the same offense); cf....
CopyAgo (Fla. Att'y Gen. 2006).
Published | Florida Attorney General Reports
adopting "The Florida Sexual Predators Act," section
775.21, Florida Statutes, the Legislature clearly
CopyPublished | District Court of Appeal of Florida | 1996 Fla. App. LEXIS 2237, 1996 WL 98873
...See §
810.011(1), Fla.Stat. (1991). The court narrowly interpreted the definition of curtilage in the burglary context because criminal statutes must be construed in favor of the person against whom a penalty is imposed.
660 So.2d at 1044 (citing §
775.021(1), Fla.Stat....
CopyPublished | Florida 2nd District Court of Appeal
...Here, the parties identify no clear
expression of legislative intent with regard to unlawful travel and attempted lewd battery,
and we have discerned none. Thus, we must determine whether Byun's convictions
and sentences for both offenses violate the Blockburger2 test codified in section
775.021(4), Florida Statutes (2015)....
...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.
§
775.021(4).
Under this analysis, we look to elements, not to facts. See Roughton v.
State,
185 So. 3d 1207, 1210 (Fla. 2016) ("[T]he plain language of section
775.021(4)(a)[ ] requires that the elements of the offenses be compared 'without regard
to the accusatory pleading or the proof adduced at trial.' " (emphasis omitted)); State v.
Carpenter, 417 So....
...4And, obviously, unlawful travel has elements that attempted lewd battery
does not have.
-7-
812 (Fla. 2d DCA 1999) (en banc) (holding that only necessarily lesser included
offenses are subsumed pursuant to section 775.021(4)(b)(3) and receding from
language in a prior case "which states that a defendant may not be convicted of a
permissive lesser included offense when he has been convicted of the greater offense,
with both offenses arising out of the same criminal act" (citing State v....
CopyPublished | Florida 1st District Court of Appeal | 1993 Fla. App. LEXIS 2423, 1993 WL 55629
...Because the state introduced competent, substantial evidence on each element of the offenses charged, the trial judge correctly denied appellant’s motion for judgment of acquittal on each count. Dual convictions for aggravated assault and shooting into an occupied vehicle are authorized by section 775.021(4), Florida Statutes (1991)....
...The supreme court accepted jurisdiction and issued a cursory decision quashing this court's decision in Price on the authority of its decision in State v. Barnes,
595 So.2d 22 (Fla.1992). The supreme court did not specifically address the issue of the validity of dual convictions for the two offenses at issue pursuant to section
775.021(4), Florida Statutes....
CopyPublished | Florida 5th District Court of Appeal | 1998 Fla. App. LEXIS 2946
...rmed robbery and grand theft auto because they are merely a degree variance of the same core offense of theft. Id. at 154 . Multiple punishments or convictions are not permitted if the offenses in question are degrees of the same offense pursuant to section 775.021(4)(b)2, Florida Statutes (1989)....
CopyPublished | District Court of Appeal of Florida | 1999 Fla. App. LEXIS 3851, 1999 WL 162494
...McClora argues, and the State concedes, that on the facts of this case, McClora may not be convicted of both battery and aggravated battery because these charges arose out of acts which took place during a single altercation. Thus, the battery offense is subsumed by the greater offense of aggravated battery. See § 775.021(4), Fla....
CopyPublished | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 4273, 2015 WL 1334323
...proffered construction is not unreasonable. Under statutory
lenity principles, however, when a criminal statute is
susceptible of more than one construction, we are compelled
to construe the statute most favorable to Appellant. §
775.021(1), Fla....
CopyPublished | Florida 1st District Court of Appeal | 2002 Fla. App. LEXIS 3784, 2002 WL 448659
...eopardy violation. See Fogle v. State,
754 So.2d 878 (Fla. 1st DCA 2000); see also Jones v. State,
711 So.2d 633 (Fla. 1st DCA 1998)(double jeopardy prevents multiple convictions for the same offense); U.S. Const, amend. V; Fla. Const, art. I, § 9. Section
775.021(4)(b), Florida Statutes (1999), provides for separate conviction and sentence for each criminal offense committed in the course of one criminal episode or transaction, unless the offenses *1012 require identical elements of proof, the...
CopyPublished | Florida 3rd District Court of Appeal
...more of the sentences be served consecutively. Sentences of imprisonment
for offenses not charged in the same indictment . . . shall be served
consecutively unless the court directs that two or more of the sentences be
served concurrently.”); § 775.021(4)(a), Fla....
CopyPublished | District Court, S.D. Florida | 1995 U.S. Dist. LEXIS 4973, 1995 WL 227685
...ying crime of theft and are distinguished only by degree factors, Sirmons’ dual convictions based on the same core offense could not stand. In a concurring opinion, Justice Kogan explained that the majority’s decision was predicated on Fla.Stat. § 775.021(4), which provides: (4)(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 separat...
...ple punishments law,” Sir-mons, supra at 154-55, because only the first tier of the required analysis is the classic Blockburger test that “offenses are separate if each offense requires proof of an element which the other does not.” Fla.Stat. § 775.021(4)(a)....
...fore deciding the multiple-punishments issue.” Sirmons, supra at 154 . The Florida Supreme Court’s conclusion that Sirmons’ convictions of grand theft and robbery could not stand was based on the third tier of the statutory analysis, Fla.Stat. § 775.021(4)(b)2, which provides that multiple punishments are not permitted if the offenses in question “are degrees of the same offense as provided by statute.” By enacting that exception to the Blockburger analysis, the Florida legislature in...
...rate for double jeopardy purposes if each offense requires proof of an element which the other does not. The Florida statutes that define Gadson’s offenses clearly pass constitutional muster under the Blockburger analysis, as codified at Fla.Stat. § 775.021(4)(a)....
...Robbery requires a taking which burglary with assault does not. Burglary with an assault requires an entering or remaining which robbery does not. Williams v. Dugger, supra, at 1575. 5 Since Gadson’s convictions thus are not duplicitous when measured against the first tier of Fla.Stat. § 775.021(4), the remaining question is whether they fall within any of the three remaining tiers of that provision. Sirmons, supra. Fla.Stat. § 775.021(4)(b)l states that one exception to the express legislative intent “to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction” occurs when the offenses require identical elements of proof....
...The second exception to the legislative intent separately to punish multiple offenses, which was the one at issue in Sirmons , states that multiple punishment is not allowed when the offenses are degrees of the same offense provided by statute. Fla.Stat. § 775.021(4)(b)2....
...nd Related Crimes.” The third and final exception to the Florida Legislature’s intent to convict and punish each crime separately occurs when an offense is a lesser offense whose statutory elements are subsumed by the greater offense. Fla. Stat. § 775.021 (4)(b)3....
...For the foregoing reasons, it remains the recommendation of the undersigned that this petition for writ of habeas corpus be denied. Objections to this report may be filed with the District Judge within ten days of receipt of a copy of the report. Dated: February 23, 1995. 1. Fla.Stat. § 775.021(4) was enacted in negative response to the Florida Supreme Court's earlier decision in Carawan v....
CopyPublished | Florida 1st District Court of Appeal | 1991 Fla. App. LEXIS 2533, 1991 WL 39352
...McCloud,
577 So.2d 939 (Fla.1991), where it held, in answer to a certified question, that dual convictions for sale and possession (or possession with intent to sell) of the same quantum of contraband does not constitute double jeopardy when the crimes occurred after the effective date of section
775.021, Florida Statutes (Supp.1988)....
CopyPublished | Florida 1st District Court of Appeal | 2011 Fla. App. LEXIS 2680, 2011 WL 715009
...See Franklin v. State,
816 So.2d 1203 (Fla. 4th DCA 2002). We also reverse the appellant’s conviction on Count III. Dual convictions on Counts I and III violate double jeopardy because Count III is a necessarily lesser-included offense of Count I. See §
775.021(4)(b)3., Fla....
CopyPublished | Florida 3rd District Court of Appeal | 1991 Fla. App. LEXIS 2316, 1991 WL 35298
...arm. We reverse. The trial court erred in dismissing the counts for unlawful possession of a firearm as duplicative of the charges and convictions for attempted first-degree murder, armed robbery, and armed burglary. Under the statutory amendment to section 775.021(4), Florida Statutes (1990), which superceded Carawan v....
...Gidden v. State,
573 So.2d 153 (Fla. 3d DCA 1991); Brunson v. State,
568 So.2d 1344 (Fla. 3d DCA 1990). The offenses in this case occurred after the effective date of the statutory amendment. Since our decision is based on a post-Ca- rawan analysis of section
775.021(4), we do not reach defendant’s claim that he could not be convicted of the firearm charge since his other offenses were enhanced or aggravated by the fact he possessed a firearm....
CopyPublished | District Court of Appeal of Florida | 1992 Fla. App. LEXIS 2793, 1992 WL 51258
...urder. The counts were merged at sentencing and the trial court imposed only one life sentence. We have *290 held that trial courts are not permitted to enter an adjudication of guilt for an offense when a sentence could not legally be imposed under section 775.021(4), Florida Statutes (1989), for that same offense....
CopyPublished | Florida 4th District Court of Appeal
...299 (U.S.
1932), battery and felony battery based on one prior battery were different
degrees of the same offense and so were crimes arising from the same
criminal transaction.
113 So. 3d at 107-08. Therefore, a defendant could
not be convicted of both under Florida’s double jeopardy statute, section
775.021(4)(a)....
CopyPublished | Florida 2nd District Court of Appeal
...different offenses arising out of the same criminal transaction as long as the [l]egislature
intends to authorize separate punishments." Valdes v. State,
3 So. 3d 1067, 1069 (Fla.
2009).
To determine legislative intent in this case, both parties rely on section
775.021(4)(a), Florida Statutes (2016), which authorizes multiple punishments for a
single criminal act if that act constitutes separate criminal offenses....
CopyPublished | Florida 2nd District Court of Appeal | 2006 WL 625865
for sexual predator designation pursuant to section
775.21, Florida Statutes (2004). Castaneda appeals
CopyPublished | Florida 1st District Court of Appeal | 2014 WL 996524, 2014 Fla. App. LEXIS 3604
...By contrast, in Roughton , the Fifth District held that the defendant’s dual convictions for sexual battery and lewd or lascivious molestation did not violate the prohibition against double jeopardy because the offenses included different elements and none of the exceptions in section 775.021(4)(b), Florida Statutes, applied....
CopyPublished | Florida 4th District Court of Appeal
court make findings at the time of sentencing. See §
775.21(5)(a)1., Fla. Stat. (2014) (stating that “the
CopyPublished | Florida 5th District Court of Appeal | 2015 WL 1071158
that is to the benefit of the defendant. See §
775.021(1), Fla. Stat. (1991); Scates v. State, 603 So
CopyPublished | Florida 1st District Court of Appeal | 2007 WL 737541
...Dep't of Health,
948 So.2d 803, 809 (Fla. 2d DCA 2006). This concept weighs in favor of appellant. [2] Furthermore, according to the Rule of Lenity, where a statute is susceptible to differing constructions, we adopt the construction most favorable to an accused. §
775.021(1), Fla....
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 2160, 1991 WL 32063
...considered separate crimes. Our supreme court, in Carawan , basically held that a single act could not form the basis for more than one conviction and sentence. The court denied rehearing of Carawan on December 10, 1987. The legislature then amended section 775.021(4), Florida Statutes (Supp.1988), effective July 1, 1988....
CopyPublished | Florida 3rd District Court of Appeal | 2003 Fla. App. LEXIS 3129, 2003 WL 1036463
...The trial court reasoned that the burglary count duplicated count three, which was grand theft of an automobile. The State’s point is well taken. Burglary of an automobile and theft of the same automobile are two different offenses. State v. Stephens,
601 So.2d 1195, 1196-97 *15 (Fla.1992); see also §
775.021(4), Fla....
CopyPublished | Supreme Court of Florida | 16 Fla. L. Weekly Supp. 425, 1991 Fla. LEXIS 903, 1991 WL 94294
...ument and the proof, the use of a firearm during the commission of a felony was a permissible lesser included offense of first-degree premeditated murder. We explained that the analysis of lesser included offenses for purposes of double jeopardy and section 775.021(4), Florida Statutes (1979), depended solely upon the statutory elements of the charged crimes....
...re’s manifest concern over the proliferation of violent crimes involving the use of firearms.” Carawan,
515 So.2d at 169 . There is nothing that has occurred since Carawan which would mandate a different result. While the legislature has amended section
775.021(4), 2 thereby limiting the scope of Carawan , this amendment is inapplicable because it does not apply to crimes committed prior to the date of its enactment, July 1, 1988....
CopyPublished | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 4061, 1990 WL 73187
...Therefore the appellant’s convictions and sentences are hereby affirmed and the ultimate sentences are two life terms to run consecutively. Sentences under review are affirmed. . There may be separate convictions and sen-fencing for the battery and the kidnapping of the same victim. § 775.021(4), Fla.Stat....
CopyPublished | Supreme Court of Florida
...bodily injury to a person under section
316.193(3)(c), Florida
Statutes (2014), are degree variants of the same criminal offense so
that double jeopardy is violated. We agree.
Because the convictions are variants of the same offense
under section
775.021(4)(b)2., Florida Statutes (2014), we hold that
his dual convictions for both offenses as to the same victim arising
from a single episode violate the prohibition against double
jeopardy....
...onvictions
did not violate double jeopardy. Velazco,
305 So. 3d at 82. The
Third District concluded that the offenses of DUI causing damage to
property or person and DUI causing serious bodily injury satisfied
the same-elements test set forth in section
775.021(4)(a) and that
none of the three exceptions to the same-elements test set forth in
section
775.021(4)(b) applied. Velazco,
305 So. 3d at 78-81. As to
the degree-variant exception in section
775.021(4)(b)2., the Third
District concluded that “a faithful textualist approach to
interpretation belies the proposition that the offenses ‘are degrees of
the same offense as provided by statute’ ” because “the legislature
chose not to classify any DUI-related crimes by ‘degree.’ ” Velazco,
305 So. 3d at 79 (quoting §
775.021(4)(b)2.)....
...y injury
and DUI serious bodily injury arising from the commission of a
single act.” Velazco,
305 So. 3d at 82 (Emas, C.J., concurring in
part and dissenting in part). Applying double jeopardy principles
and this Court’s precedent construing section
775.021(4)(b)2.,
Judge Emas “conclude[d] that these two offenses are degree-variant
offenses and aggravated forms of the basic DUI offense.” Id....
...at 87-88.
Accordingly, Judge Emas concluded that DUI causing damage to
property or person and DUI causing serious bodily injury “are
degree-variant offenses and aggravated forms of the basic DUI
offense”; therefore, the two offenses satisfy the degree-variant
exception in section 775.021(4)(b)2., and “double jeopardy bars
convictions and sentences for both offenses.” Id....
...at 82, 89.
II. ANALYSIS
Velazco argues that his convictions and sentences for DUI
causing damage to property or person and DUI causing serious
bodily injury violate double jeopardy because the two offenses are
degree variants of the same offense under section
775.021(4)(b)2.2
2. Velazco does not argue and we do not address whether his
convictions violate the Blockburger v. United States,
284 U.S. 299
(1932), same-elements test as codified in section
775.021(4)(a),
Florida Statutes.
-6-
We agree and quash the Third District’s decision below to the extent
it is inconsistent with this decision....
...driving under the influence, running into a single victim, and
causing serious bodily injury to the victim and damage to the
victim’s scooter. Velazco argues that his convictions are
impermissible under the second statutory exception to the same-
elements test, 4 section
775.021(4)(b)2., which prohibits dual
3. “Double jeopardy claims based on undisputed facts present
questions of law and are subject to de novo review.” Graham v.
State,
207 So. 3d 135, 137 (Fla. 2016).
4. Section
775.021(4) states in its entirety:
(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 o...
...-8-
that can evince a relationship of degree—for example, when a crime
may have aggravated forms of the basic offense.”). And since
Valdes, this Court’s analysis of whether two offenses are degree
variants of each other under section 775.021(4)(b)2....
...causational damage inflicted upon one victim for the offense of
DUI.”).
III. CONCLUSION
Because the criminal offenses of DUI causing damage to
property or person and DUI causing serious bodily injury are degree
variants of the same offense under section 775.021(4)(b)2., we hold
that dual convictions for both offenses as to the same victim arising
- 15 -
from a single episode violate the prohibition against double
jeopardy....
CopyPublished | Florida 1st District Court of Appeal | 14 Fla. L. Weekly 1575, 1989 Fla. App. LEXIS 3668, 1989 WL 72731
...We agree and reverse appellant’s convictions for those counts involving use of a firearm in the commission of a felony. See Hall v. State,
517 So.2d 678 (Fla.1988); Carawan v. State,
515 So.2d 161 (Fla.1987). Because these offenses were committed before the effective date for the 1988 amendment to section
775.021(4), Florida Statutes, that amendment need not be considered....
CopyPublished | District Court of Appeal of Florida | 1998 Fla. App. LEXIS 8853, 1998 WL 281294
...Where a statutory term is susceptible of two different interpretations in a criminal ease, the rule of lenity requires that it be construed in the manner most favorable to the accused. See Perkins v. State,
576 So.2d 1310, 1312 (Fla.1991); Arthur v. State,
391 So.2d 338 (Fla. 4th DCA 1980); §
775.021(1), Fla....
CopyPublished | Florida 5th District Court of Appeal
...l transaction or episode if the Legislature intended to authorize separate punishments. Roughton v. State ,
185 So.3d 1207 , 1209 (Fla. 2016) (citing Valdes v. State ,
3 So.3d 1067 , 1069 (Fla. 2009) ). The Florida Legislature did so when it enacted section
775.021(4)(a), Florida Statutes (2015), which provides, in pertinent part, that a person who, during "the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses ......
...shall be sentenced separately for each criminal offense." Offenses are separate under this statute "if each offense requires proof of an element that the other does not, without regard to the accusatory *819 pleading or the proof adduced at trial." 2 § 775.021(4)(a), Fla....
...1) "Offenses which require identical elements of proof"; 2) "Offenses which are degrees of the same offense as provided by statute"; or 3) "Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense." Id. § 775.021(4)(b)....
...The determination as to whether double jeopardy is violated based on undisputed facts is a purely legal determination, making our standard of review de novo. Binns v. State ,
979 So.2d 439 , 441 (Fla. 4th DCA 2008) (citing State v. Florida ,
894 So.2d 941 , 945 (Fla. 2005) ). Similarly, whether section
775.021(4)(a) precludes dual convictions and sentences on undisputed facts is also reviewed de novo....
...See Roughton ,
185 So.3d at 1209 ("The application of the statutory rule of construction based on undisputed facts is a legal issue, subject to de novo review." (citing State v. Drawdy ,
136 So.3d 1209 , 1213 (Fla. 2014) ) ). The dispositive question here is whether under section
775.021(4)(a) and without regard to the accusatory pleading or proof at trial, possession of cannabis with intent to sell, manufacture, or deliver and manufacturing of cannabis are separate offenses when they arose out of the same criminal transaction and are charged under the same statute....
...Subsequently to Anderson , the Florida Supreme Court held in State v. McCloud ,
577 So.2d 939 (Fla. 1991), that there is no double jeopardy violation for the crimes of sale of cocaine and possession (or possession with intent to sell) of the same quantum of cocaine, rejecting the argument that section
775.021(4)(b) prohibits dual convictions and sentences for possession and sale of cocaine based on the same act because each offense contains an element that the other does not....
...gh both are charged under section
893.13(1)(a), because this statute proscribes alternative or separate forms of criminal conduct. As previously discussed, the Florida Supreme Court had no difficulty in applying the "separate offense" analysis under section
775.021(4)(a) in McCloud , holding that there was no double jeopardy violation for convictions of the separate offenses of sale of cocaine and possession of the same cocaine, or in Davis , concluding that there was no double jeopardy violatio...
...Oliver ,
581 So.2d 1304 , 1305 (Fla. 1991) (approving separate convictions for possession with intent to sell cocaine and sale of the same cocaine arising out of a single transaction). Moreover, under Roughton , our double jeopardy analysis pursuant to section
775.021(4) must "be conducted without regard to the accusatory pleading or the proof adduced at trial, even where an alternative conduct statute is implicated."
185 So.3d at 1211 . Simply put, manufacturing of cannabis and possession of cannabis with intent to manufacture are separate offenses under section
775.021(4)(a), even though they have now *821 been codified as crimes under the same subsection of section
893.13....
...Accordingly, we hold that Appellant's dual convictions, even though arising out of the same criminal transaction or episode and involving the same cannabis, do not violate the prohibition against double jeopardy. Additionally, none of the three exceptions contained in section 775.021(4)(b) is applicable here because neither of Appellant's offenses is a lesser included offense of the other, they do not have identical elements of proof, and they are not degrees of the same offense....
...ent to sell, manufacture , or deliver. There is also no record explanation or indication why the word "manufacture" was included in the jury instruction and verdict form on this count. Nevertheless, this inclusion is not significant to our analysis. Section 775.021(4)(a) is a codification of the "same elements" test enunciated in Blockburger v....
...requires proof of a fact which the other does not." Blockburger ,
284 U.S. at 304 ,
52 S.Ct. 180 . The two crimes occurred when the defendant handed an undercover agent one piece of crack cocaine. §
106.1439, Fla. Stat. (2004). This exception under section
775.021(4)(b) 2....
CopyPublished | Florida 2nd District Court of Appeal | 2016 Fla. App. LEXIS 9965, 2016 WL 3541019
...Significantly, the Flemmings court supported this last observation with a citation to a civil case. But section
776.032 is part of the Florida Criminal Code. §
775.011, Fla. Stat. (2008). As such, it is subject to the rule of construction prescribed by the legislature in section
775.021(1), which states in regard to the “provisions of this code” that “when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.” Having conceded that the Stand Your Ground im...
CopyPublished | Florida 5th District Court of Appeal
...l
transaction or episode if the Legislature intended to authorize separate punishments.
Roughton v. State,
185 So. 3d 1207, 1209 (Fla. 2016) (citing Valdes v. State,
3 So. 3d
1067, 1069 (Fla. 2009)). The Florida Legislature did so when it enacted section
775.021(4)(a), Florida Statutes (2015), which provides, in pertinent part, that a person
1The record does not show that count one of the information was ever amended
from possession of cannabis with intent to sell or deliver to possession with intent to sell,
manufacture, or deliver....
...There is also no record explanation or indication why the word
“manufacture” was included in the jury instruction and verdict form on this count.
Nevertheless, this inclusion is not significant to our analysis.
2
The dispositive question here is whether under section 775.021(4)(a) and without
regard to the accusatory pleading or proof at trial, possession of cannabis with intent to
sell, manufacture, or deliver and manufacturing of cannabis are separate offenses when
they arose out of the same criminal transaction and are charged under the same statute.
In Anderson v....
...Subsequently to Anderson,
the Florida Supreme Court held in State v. McCloud,
577 So. 2d 939 (Fla. 1991), that
there is no double jeopardy violation for the crimes of sale of cocaine and possession (or
possession with intent to sell) of the same quantum of cocaine, rejecting the argument
that section
775.021(4)(b) prohibits dual convictions and sentences for possession and
sale of cocaine based on the same act because each offense contains an element that
the other does not....
...olation for possession of cannabis
3 The two crimes occurred when the defendant handed an undercover agent one
piece of crack cocaine.
4
The dispositive question here is whether under section 775.021(4)(a) and without
regard to the accusatory pleading or proof at trial, possession of cannabis with intent to
sell, manufacture, or deliver and manufacturing of cannabis are separate offenses when
they arose out of the same criminal transaction and are charged under the same statute.
In Anderson v....
...Subsequently to Anderson,
the Florida Supreme Court held in State v. McCloud,
577 So. 2d 939 (Fla. 1991), that
there is no double jeopardy violation for the crimes of sale of cocaine and possession (or
possession with intent to sell) of the same quantum of cocaine, rejecting the argument
that section
775.021(4)(b) prohibits dual convictions and sentences for possession and
sale of cocaine based on the same act because each offense contains an element that
the other does not....
...both are charged under section
893.13(1)(a), because this statute proscribes alternative
or separate forms of criminal conduct. As previously discussed, the Florida Supreme
Court had no difficulty in applying the “separate offense” analysis under section
775.021(4)(a) in McCloud, holding that there was no double jeopardy violation for
convictions of the separate offenses of sale of cocaine and possession of the same
cocaine, or in Davis, concluding that there was no double jeopardy violati...
...Oliver,
581 So. 2d 1304,
1305 (Fla. 1991) (approving separate convictions for possession with intent to sell
cocaine and sale of the same cocaine arising out of a single transaction). Moreover,
under Roughton, our double jeopardy analysis pursuant to section
775.021(4) must “be
conducted without regard to the accusatory pleading or the proof adduced at trial, even
where an alternative conduct statute is implicated.”
185 So. 3d at 1211. Simply put,
manufacturing of cannabis and possession of cannabis with intent to manufacture are
4 §
106.1439, Fla. Stat. (2004).
6
separate offenses under section
775.021(4)(a), even though they have now been codified
as crimes under the same subsection of section
893.13.
Accordingly, we hold that Appellant’s dual convictions, even though arising out of
the same criminal transaction or episode and involving the same cannabis, do not violate
the prohibition against double jeopardy. Additionally, none of the three exceptions
contained in section
775.021(4)(b) is applicable here because neither of Appellant’s
offenses is a lesser included offense of the other, they do not have identical elements of
proof, and they are not degrees of the same offense. 5
AFFIRMED.
COHEN, C.J., and BERGER, J., concur.
5 This exception under section
775.021(4)(b)2....
CopyPublished | Florida 3rd District Court of Appeal | 33 Fla. L. Weekly Fed. D 1654
register as a *658 sexual predator as required by section
775.21(10)(a), Florida Statutes (2007). Wooding filed
CopyPublished | Supreme Court of Florida | 17 Fla. L. Weekly Supp. 369, 1992 Fla. LEXIS 1124
...On appeal, the district court affirmed Martin’s conviction of the first-degree murder but reversed his conviction for use of a firearm in the commission of a felony. The district court reasoned that because “the offense ... was committed prior to the legislative amendment to section
775.021(4), Florida Statutes (Supp.1988), [Martin’s] conviction and resulting sentence [were] prohibit-ed_” Martin,
568 So.2d at 1324 ....
...Hollinger,
581 So.2d 153 (Fla.1991), the trial court convicted the defendant for first-degree murder and possession of a firearm during the commission of a felony. The defendant in Hollinger committed the murder and other crimes prior to the legislative amendment to section
775.021(4)....
CopyPublished | Florida 2nd District Court of Appeal
...ther the offenses
occurred during the same criminal episode, if so, (2) whether the convictions are
predicated on discrete acts, and if not, (3) whether the separate charges pass the tests
of Blockburger v. United States,
284 U.S. 299 (1932), and section
775.021, Florida
Statutes....
CopyPublished | Florida 3rd District Court of Appeal | 2012 WL 2327740, 2012 Fla. App. LEXIS 9847
...State,
808 So.2d 201 , 203 n. 3 (Fla.2002) (“[Cjourts only employ the Blockburger test if there is no clear statement of legislative intent to authorize separate punishments for the two crimes in question.”). In Florida, this test is codified as part of section
775.021, Florida Statutes (2005)....
CopyPublished | Florida 1st District Court of Appeal
...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.
§ 775.021(4)(b), Fla....
...very specific guidance concerning the general rules for
determining when separate punishments are properly applied for
separate offenses that are committed during one criminal
transaction or episode.”); State v. Smith,
547 So. 2d 613, 616 (Fla.
1989) (explaining that “[s]ubsection
775.021(4)(b) is the specific,
clear, and precise statement of legislative intent” that serves “as
the controlling polestar” that guides double-jeopardy analysis);
State v....
...He threw a single punch,
hitting one victim in the face. He argues that the second statutory
exception applies because both detainee battery and felony battery
based on a prior conviction are degree variants of the same offense,
simple battery.
* Section 775.021(4)(b)1....
CopyPublished | District Court of Appeal of Florida | 1995 Fla. App. LEXIS 6580, 1995 WL 358094
...Anderson was convicted of perjury in an official proceeding and of providing false information in an application for bail, both third degree felonies. Anderson argues that he may not be convicted of both offenses. We agree and reverse. This case is governed by the 1988 amendment to subsection 775.021(4), Florida Statutes (1991): (4)(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 sen...
...The problem with this statute was well illustrated several years ago by Judge Altenbernd in Kurtz v. State,
564 So.2d 519, 522 (Fla. 2d DCA 1990). There the Second District Court was presented with the question whether, in light of the 1988 amendments to section
775.021(4), one death could support a conviction for both the crime of DUI manslaughter and culpable negligence manslaughter....
...der for the offenses to be degrees of the same offense is shown by the supreme court’s decisions in Goodwin v. State,
634 So.2d 157 (Fla.1994) and Thompson v. State, 20 Fla.L.Weekly S95 (Fla. Oct. 27, 1994). Because of the cryptic language used in section
775.021(4), the phrase “degrees of the same offense as provided by statute” has required construction....
...g this court’s description in Thompson v. State,
585 So.2d 492, 494 (Fla. 5th DCA 1991), adopted and approved in full,
607 So.2d 422 (Fla.1992), they are still “degrees (or more specific descriptions)” of the same offense within the meaning of section
775.021(4)(b)2....
...ad was sought. Thus, in this case the bail offense is a third degree felony, like the perjury offense. See §
903.035(3), Fla.Stat. (1989). Because of this oddity, even if our supreme court were to adopt Justice Kogan’s view that subsection (3) of section
775.021(4)(b) encompasses permissive lesser included offenses, which seems in keeping with the majority’s evolving degree factor analysis, the crimes charged in this case would not fall within the subsection, although "lesser” in the sense that one is subsumed within the other....
CopyPublished | Florida 3rd District Court of Appeal
...2d 79, 81
(Fla. 1996) (quoting Albernaz v. United States,
450 U.S. 333, 344 (1981)).
Where there is no clear statement of legislative intent to authorize separate
punishments for two crimes, courts employ the Blockburger “same-
elements” test, codified in section
775.021, Florida Statutes (2021), to
determine whether multiple convictions are prohibited. See Blockburger v.
U.S.,
284 U.S. 299, 304 (1932).
Section
775.021 provides:
(4)(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 adjudicat...
...Offenses which are degrees of the same offense
as provided by statute.
3
3. Offenses which are lesser offenses the statutory
elements of which are subsumed by the greater
offense.
§ 775.021, Fla. Stat. “[I]n applying section 775.021 to a single criminal
transaction or episode, we look to see whether the episode constitutes more
than one separate criminal offense.” State v....
...egislature has provided
three exceptions to the Blockburger same-elements test and the legislature’s
intent to “convict and sentence [separately] for each criminal offense
committed in the course of one criminal episode or transaction.” See §
775.021(4)(b), Fla. Stat. Section 775.021(4)(b) lists these exceptions,
indicating they arise when: (1) the offenses require identical elements of
proof; (2) the offenses are degrees of the same offense as provided by
statute; and (3) the offenses are lesser offenses the statutory elements of
5
which are subsumed by the greater offense. See § 775.021(4)(b), Fla....
CopyPublished | Florida 2nd District Court of Appeal
...We therefore
interpret this section to permit—but not require—a $500,000 fine in
every case.
Furthermore, to the extent section
893.20(2) is susceptible of
divergent interpretations, we must resolve any ambiguities in favor of Mr.
Islaam. See §
775.021(1), Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2013 WL 2661819, 2013 Fla. App. LEXIS 9439
...Our review of a double jeopardy claim with undisputed facts is a question of law reviewed de novo. McKinney,
66 So.3d at 853 . To determine if a subsequent prosecution violates double jeopardy principles, the courts employ the Blockburger 2 test, also known as the same-elements test, codified in section
775.021(4), Florida Statutes (2010). See State v. Johnson,
676 So.2d 408, 410 (Fla.1996); Duff v. State,
942 So.2d 926, 928 (Fla. 5th DCA 2006). Section
775.021(4) provides as follows: (4)(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 sentence...
...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. (Emphasis added.) The court first determines whether the Blockburger test of section
775.021(4)(a) shows that the offenses each contain an element that the other does not. Duff,
942 So.2d at 928 . “If they do not, double jeopardy bars multiple prosecutions or convictions. If they each contain separate elements, then the court must determine if one of the three exceptions in section
775.021(4)(b) applies.” Id....
...Petit theft of the second degree is a necessarily included, or category one, offense of robbery by sudden snatching. See Fla. Std. Jury Instr. (Crim.) 15.4. Thus, petit theft of the second degree has no elements that robbery by sudden snatching does not. Because the Block-burger test set forth in section 775.021(4)(a) is not met, the offenses cannot be treated as separate offenses and double jeopardy principles bar a subsequent prosecution for robbery by sudden snatching....
...a crime with which he was not charged). Thus, Lafferty has been convicted of petit theft in the second degree, an offense that contains no elements that are not already contained in the offense of robbery by sudden snatching. Therefore, according to section 775.021(4)(a), the offenses are not separate, and double jeopardy principles prohibit this subsequent prosecution for robbery by sudden snatching....
CopyPublished | District Court of Appeal of Florida | 14 Fla. L. Weekly 1430, 1989 Fla. App. LEXIS 3357, 1989 WL 62410
...The state maintains that section 775.-021(4), Florida Statutes, as recently amended on July 1, 1988, controls and requires affirmance of Nash’s armed robbery conviction. This court held in Meadows v. State,
534 So.2d 1233 (Fla. 4th DCA 1988), that section
775.021(4) should not be applied retroactively....
CopyPublished | Supreme Court of Florida | 1991 WL 101174
...2d DCA 1990), to answer the following certified question of great public importance: When a double jeopardy violation is alleged based on the crimes of sale and possession (or possession with intent to sell) of the same quantum of contraband and the crimes occurred after the effective date of section 775.021, Florida Statutes (1988 Supp.), is it improper to convict and sentence for both crimes? We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution....
CopyPublished | Florida 2nd District Court of Appeal | 2013 WL 2501982, 2013 Fla. App. LEXIS 9267
...a result of a prior conviction for a felony or other qualified offense, whichever is later. §
775.084, Fla. Stat. (2010). We have previously held that an escape is not a release. See Thomas v. State,
741 So.2d 1246, 1246 (Fla. 2d DCA 1999) (citing section
775.021(1), which provides that criminal statutes must “be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused”)....
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 5364, 1991 WL 98032
...by law to be operated under the control of school boards.... (5) SCHOOL. — A school is an organization of pupils for instructional purposes on an elementary, secondary, or other public school level, approved under regulations of the state board. .Section 775.021(1), Florida Statutes (1989) provides: 775.021 Rules of construction.— (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....
CopyPublished | Florida 4th District Court of Appeal | 1991 Fla. App. LEXIS 5908, 1991 WL 98042
...Possession of cocaine is considered a lesser included offense of the offense of purchasing the same cocaine within 1,000 feet of a school. Coley v. State,
571 So.2d 55 (Fla. 4th DCA 1990); State v. Glenn,
545 So.2d 903 (Fla. 4th DCA 1989). The 1989 amendment to section
775.021(4)(a), Florida Statutes (1989) is inapplicable in this case because the offense was committed before the amendment....
CopyPublished | Florida 4th District Court of Appeal | 2004 Fla. App. LEXIS 9928, 2004 WL 1496649
...part as “[a] separate and independent claim”). However, even if “one offense” was construed to include multiple counts, this language is at least ambiguous and under the rule of lenity should be construed “most favorably to the accused.” § 775.021(1), Fla....
CopyPublished | Florida 3rd District Court of Appeal | 2000 Fla. App. LEXIS 8257
...y. The state contends that the enhancement was proper because FKCS operates under a contract with the Department of Juvenile Justice and, therefore, FKCS falls within the purview of Section
784.075. - Penal statutes are to be strictly construed. See §
775.021, Fla....
...A shelter, even if operating under a contract with the Department of Juvenile Justice, is not one of the listed facilities stated in Section
784.075. Accordingly, we reverse finding the battery that occurred did not fall within one of the specific facilities as defined in the statute. See §
775.021, Fla....
CopyPublished | Florida 2nd District Court of Appeal | 1989 WL 73754
...This timely appeal followed. We agree with the appellant's contention that he cannot be convicted of both robbery and grand theft for a single underlying act. See Carawan v. State,
515 So.2d 161 (Fla. 1987). Although Carawan has apparently been superseded by the enactment of section
775.021(4)(b), Florida Statutes (1988 Supp.), State v....
CopyPublished | Florida 5th District Court of Appeal | 2004 Fla. App. LEXIS 11318, 2004 WL 1697560
...n Blockburger v. United States,
284 U.S. 299, 304 ,
52 S.Ct. 180 ,
76 L.Ed. 306 (1932), to determine whether separate offenses exist. See Gaber v. State,
684 So.2d 189, 192 (Fla.1996). The Florida Legislature has codified the Blockburger analysis in section
775.021(4), Florida Statutes (2002), which provides: (4)(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 gui...
...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. § 775.021(4), Fla. Stat. (2002). Under the facts of this case, we conclude that Anderson’s convictions for battery and battery on a person over the age of sixty-five are improper as they are not separate offenses for double jeopardy purposes. Section 775.021(4)(b)3....
CopyPublished | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 11406, 2015 WL 4557049
...thought such possession was not illegal) is not equivalent to a confession
of guilt, unless the defendant also has knowledge of the specific chemical
properties of the substance.
Criminal laws must be construed strictly, with any ambiguity resolved
in favor of the defendant. § 775.021(1), Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2000 Fla. App. LEXIS 9438, 2000 WL 1034624
...ardy because they punish the same crime. From the record in this case, it appears that the offenses in count sixteen (delivery of cocaine) and count eighteen (trafficking delivery of cocaine) occurred in the course of one criminal transaction. Under section 775.021(4)(a), Florida Statutes (1997), double jeopardy analysis begins with a determination of whether one of two offenses committed in the course of one criminal transaction requires proof of an element that the other does not....
CopyPublished | District Court of Appeal of Florida | 14 Fla. L. Weekly 1775, 1989 Fla. App. LEXIS 4225, 1989 WL 82120
...State,
519 So.2d 618 (Fla.1988). On remand, the court may reconsider imposing costs after proper notice and hearing. AFFIRMED in part, REVERSED in part and REMANDED. DANIEL, C.J., and COBB, J., concur. . As rioted in Smith, the legislative amendment to section
775.021(4), Florida Statutes (Supp....
CopyPublished | District Court of Appeal of Florida
GORDO, JJ. PER CURIAM. Affirmed. See §
775.21(4)(a)1.a., Fla. Stat. (2014) (providing that a
CopyPublished | Florida 5th District Court of Appeal | 2012 Fla. App. LEXIS 11746, 2012 WL 2936072
...sting with and without violence are prohibited because the lesser offense of resisting without violence has elements which are subsumed by the greater offense of resisting with violence. Swilley v. State,
845 So.2d 980 , 933 (Fla. 5th DCA 2003); see §
775.021(4)(b)3., Fla....
CopyPublished | Florida 5th District Court of Appeal | 2001 Fla. App. LEXIS 9839, 2001 WL 814947
...The court determined that the language in the documents was insufficient to “revoke and/or to put students on notice, that the general statutory right to possess a securely encased firearm in a private vehicle has been revoked, and it is therefore illegal to do so on campus.” We agree with the trial court’s analysis. 1 Section 775.021(1) provides, “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.” The r...
CopyPublished | Florida 2nd District Court of Appeal | 14 Fla. L. Weekly 1718, 1989 Fla. App. LEXIS 4028, 1989 WL 78335
...The state argues that the crimes in question are so despicable that it cannot possibly be the intention of the legislature to “suddenly lessen the penalty for sexual battery on a child” by not permitting the imposition of consecutive sentences. The state points to section
775.021(4)(a-b), Florida Statutes (Supp.1988), as evidence that the legislature intended separate punishments for each offense arising from one criminal episode. However, this court has held in Meadows v. State,
534 So.2d 1233 (Fla. 4th DCA 1988), that the amended version of section
775.021(4) is not to be applied retroactively in determining whether dual convictions are permissible where the offenses arise from a single act....
CopyPublished | Supreme Court of Florida | 11 Fla. L. Weekly 357, 1986 Fla. LEXIS 2323
instrument and is not a lesser included offense. See § 775.-021(4), Fla.Stat. (1983) and Linehan v. State, 476
CopyPublished | Florida 1st District Court of Appeal | 2002 Fla. App. LEXIS 9909, 2002 WL 1539678
...Croy,
813 So.2d 993 (Fla. 1st DCA 2002). This also accords with the rule of lenity, which instructs that criminal statutes susceptible of differing constructions are to be interpreted in a manner most favorably to the accused. See State v. Rife,
789 So.2d 288 (Fla.2001); §
775.021(1), Fla....
CopyPublished | Supreme Court of Florida
...The
changes to the jury instructions for sexual offenders and sexual predators’ failure
to comply with reporting requirements are made in response to statutory changes
by the Legislature in chapter 2016-104, sections 1 and 3, and chapter 2017-107,
sections 1-2, Laws of Florida, amending sections
943.0435 and
775.021, Florida
Statutes.
Having considered the Committee’s report, we authorize the amended
instructions, as set forth in the appendix to this opinion, for publication and use.1
New language is indicated by underlining, and deleted language is indicated by
struck-through type....
CopyPublished | Florida 4th District Court of Appeal | 2006 Fla. App. LEXIS 11592, 2006 WL 1896607
...for the same conduct. Amends. V, XIV, U.S. Const.; Art. I, § 9, Fla. Const. This is a fundamental right that may be raised for the first time on appeal. Tannihill v. State,
848 So.2d 442, 444 (Fla. 4th DCA 2003). Florida has codified this right in section
775.021, Florida Statutes (2003)....
CopyPublished | District Court of Appeal of Florida | 14 Fla. L. Weekly 1681, 1989 Fla. App. LEXIS 3928, 1989 WL 76419
...However, we agree with the appellant that it was improper to sentence him for both trafficking in cocaine and possession of cocaine under the circumstances of this case. Carawan v. State,
515 So.2d 161 (Fla.1987). Parenthetically, we note that the appellant’s offense occurred in 1987 so that section
775.021, Florida Statutes (Supp.1988), does not apply....
CopyPublished | District Court of Appeal of Florida | 14 Fla. L. Weekly 1659, 1989 Fla. App. LEXIS 3871, 1989 WL 75747
...We reverse appellant’s conviction and sentence for possession of a firearm during the commission of a felony pursuant to Hall v. State,
517 So.2d 678 (Fla.1988), and Carawan v. State,
515 So.2d 161 (Fla. 1987). We reject the state’s argument that chapter 88-131, section 7, Laws of Florida, which amended section
775.021(4), Florida Statutes, effective July 1, 1988, precludes application of Carawan and Hall to the instant case....
CopyPublished | Supreme Court of Florida | 16 Fla. L. Weekly Supp. 487, 1991 Fla. LEXIS 1057, 1991 WL 127617
...The district court certified the following question as one of great public importance: WHEN A DOUBLE JEOPARDY VIOLATION IS ALLEGED BASED ON THE CRIMES OF SALE AND POSSESSION (OR POSSESSION WITH INTENT TO SELL) OF THE SAME QUANTUM OF CONTRABAND AND THE CRIMES OCCURRED AFTER THE EFFECTIVE DATE OF SECTION
775.021, FLORIDA STATUTES (SUPP.1988), IS IT IMPROPER TO CONVICT AND SENTENCE FOR BOTH CRIMES? James,
573 So.2d at 1025 ....
CopyPublished | Florida 4th District Court of Appeal
...5th DCA 1996).
“[D]rawing the line between slight and moderate injuries is not an easy
task.” Poole v. State,
753 So. 2d 698, 698–99 (Fla. 4th DCA 2000). This
court has therefore applied the rule of lenity in close cases involving the
various categories of victim injury. Our approach is consistent with
section
775.021(1), Florida Statutes (2020), which provides:
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 c...
CopyPublished | Florida 5th District Court of Appeal | 1996 Fla. App. LEXIS 7076, 1996 WL 382952
...dy violation. The trial court denied this motion, apparently relying on Sirmons v. State,
603 So.2d 82 (Fla. 5th DCA 1992), subsequently quashed by the supreme court. The district court, in Sirmons, had held that dual convictions and sentences under section
775.021(4), Florida Statutes (1989) could result when robbery and grand theft are committed during a single criminal act....
CopyAgo (Fla. Att'y Gen. 1999).
Published | Florida Attorney General Reports
presence of sexual predators.21 Pursuant to section
775.21(7), Florida Statutes (1998 Supplement), Florida's
CopyPublished | Florida 4th District Court of Appeal
designation on an offender who qualifies under section
775.21, when the sentencing court did not impose the
CopyPublished | Florida 5th District Court of Appeal | 1991 Fla. App. LEXIS 734, 1991 WL 10431
...However, we certify to the Florida Supreme Court the following question of great public importance: WHEN A DOUBLE JEOPARDY VIOLATION IS ALLEGED BASED ON THE CRIMES OF GRAND THEFT OF PROPERTY (BETWEEN $300 AND $20,000) AND OF A FIREARM IN A SINGLE ACT, AND THE CRIMES OCCURRED AFTER THE EFFECTIVE DATE OF SECTION 775.021, FLORIDA STATUTES (SUPP.1988), IS IT UNLAWFUL TO CONVICT AND SENTENCE FOR BOTH CRIMES? We find that the remaining issues lack merit and AFFIRM them as well....
CopyPublished | Florida 3rd District Court of Appeal | 2013 WL 332081, 2013 Fla. App. LEXIS 1229
...3d DCA 2006), no manifest injustice has occurred in the instant case. Williams was convicted and sentenced for two separate aggravated batteries committed against two separate victims during an armed robbery at a restaurant in Miami-Dade County. Pursuant to section 775.021(4), Florida Statutes (2008), a defendant may be convicted and sentenced separately and consecutively for each distinct offense committed within a single criminal episode....
CopyPublished | Florida 2nd District Court of Appeal
...The trial court ruled
that DUI manslaughter and vehicular homicide are separate crimes, and
therefore, Glaubius may be convicted and sentenced for both offenses,
even in a case with a single decedent. The court ruled that "no double
jeopardy violation occurred and therefore [Glaubius]'s plea was not
involuntary."
Section 775.021(4)(a), Florida Statutes (2021), which codifies the
Blockburger2 test, states that "offenses are separate if each offense
requires proof of an element that the other does not." A person who, "in
the course of one criminal transaction o...
...88-
131, § 7, Laws of Fla., as stated in State v. Maisonet-Maldonado,
308 So.
3d 63, 70 (Fla. 2020).
2 Blockburger v. United States,
284 U.S. 299 (1932)
2
and adjudication of guilt, shall be sentenced separately for each criminal
offense." §
775.021(4)(a); see also State v....
CopyPublished | Florida 2nd District Court of Appeal
...subsumed in the offense of traveling to meet a minor, and therefore his
convictions violate double jeopardy.1 The State correctly acknowledges
that this court has previously determined that these convictions cannot
withstand scrutiny under a Blockburger2 analysis, as codified in section
775.021(4), Florida Statutes (2020)....
CopyPublished | District Court of Appeal of Florida | 1997 Fla. App. LEXIS 32, 1997 WL 1704
...st or service of an order to show cause. The question we then must confront is: did the speedy trial period for the circuit court action commence with Washington’s arrest on November 28,1995, or with service of the show cause order in March, 1996? Section 775.021, Florida Statutes (1995) indicates that it is not the intent of the legislature to provide for separate convictions and sentences for two offenses which require identical elements of proof....
CopyPublished | Supreme Court of Florida | 1991 Fla. LEXIS 11, 1991 WL 1361
...Had the legislature intended to include it in the proscription, it could easily have done so. Robbery is a separate offense from theft and we simply have no basis for reading it into the statute. “The provisions of this code and offenses defined by other statutes shall be strictly construed....” § 775.021, Fla.Stat....
CopyPublished | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 532, 2010 WL 289123
...Statutes. The rule of lenity provides: 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. § 775.021(1), Fla....
CopyPublished | Florida 4th District Court of Appeal | 1993 WL 15597
...ttached to the trial court's order. See Young v. State,
598 So.2d 1084 (Fla. 4th DCA 1992). Lastly, appellant's argument regarding defense counsel's failure to object to consecutive sentences is supported by Palmer v. State,
438 So.2d 1 (Fla. 1983) (section
775.021(4)(a) was not intended to permit stacking of mandatory minimum *116 sentences for offenses arising from the same criminal episode)....
CopyPublished | Florida 2nd District Court of Appeal
12, 2014), a third-degree felony governed by section
775.21, Florida Statutes (2013). The information titled
CopyPublished | Florida 5th District Court of Appeal | 2013 WL 275296
...v. State,
682 So.2d 79, 81 (Fla.1996)). Absent clear legislative intent to authorize separate punishments, courts employ the Blockburge 4 “same elements” test, ie., “whether each offense has an element that the other does not,” codified at section
775.021(4)(a), Florida Statutes (2009). 5 If each of the offenses has an element that the other does not, the court must then determine if one of the exceptions set forth in section
775.021(4)(b) 6 applies to preclude separate convictions and sentences....
...Neglect that results in the death of the child is a first-degree felony. Koenig,
757 So.2d at 596 . Double jeopardy principles prohibit convictions for “[ojffenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.” §
775.021(4)(b)3., Fla....
...s 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. . Section 775.021(4)(b), Florida Statutes (2009), states: 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....
CopyPublished | Florida 4th District Court of Appeal
...4th DCA 1989) (determining that convictions and
sentences for two counts of burglary, one alleging burglary with an assault
and the other alleging burglary with a battery, violated double jeopardy
where there was only one entry).
The State acknowledges Hawkins, but argues that dual burglary
convictions are authorized by section 775.021(4)(b), Florida Statutes
(2017), which provides:
(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...
...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.
§ 775.021(4)(b), Fla. Stat. More specifically, the State argues that none of
the exceptions in section 775.021(4)(b) apply to this case.
Although when considering the offenses as charged, the State’s
argument seems facially correct, the flaw in the State’s argument is that
3
for sentencing purpose...
...utory
elements of the lesser offense are subsumed by the greater offense.
Additionally, as found by the jury, one offense (Count 2) is a first-degree
felony burglary, and the other offense (Count 1) is a second-degree felony
burglary. Thus, sections 775.021(4)(b)2....
CopyPublished | Supreme Court of Florida | 39 Fla. L. Weekly Supp. 39, 2014 WL 241918, 2014 Fla. LEXIS 200
...the
complex statutory history does not satisfactorily resolve the ambiguity in the text
of the 2006 statute.
C.
We thus turn to North Carillon’s argument concerning the statutory rule of
lenity. Section 775.021(1), Florida Statutes (2013), provides that the “provisions
of the [Florida Criminal] [C]ode and offenses defined by other statutes shall be
strictly construed; when the language is susceptible of differing constructions, it
shall...
...rule of lenity in resolving any ambiguity in the ambit of the statute’s coverage”).
Given the ambiguity in the statute, we apply the rule of lenity, which
requires that the statute “be construed most favorably to” the developer. §
775.021, Fla....
CopyPublished | Florida 5th District Court of Appeal | 2017 Fla. App. LEXIS 565
regardless of the date of offense of the prior felony.” §
775.21(4)(b), Fla. Stat. (2012) (emphasis added). This
CopyPublished | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 711, 2016 WL 231379
...The Florida Supreme Court has explained that if the legislature
has not expressed an intent to authorize separate punishments for two
crimes arising out of one criminal episode, then a court must apply the
test recited in Blockburger v. United States,
284 U.S. 299 (1932), which
has been codified in section
775.021(4), Florida Statutes....
...er
794, chapter 800, or chapter 827, or to otherwise engage in any
sexual conduct,
commits a felony of the second degree . . . .
4
The next question then is whether, under section 775.021(4), double
jeopardy applies to bar the dual convictions....
...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.
§ 775.021(4), Fla....
...minor; traveling to meet a minor contains an element that is
not an element of soliciting a child, namely, knowingly
traveling within the state. Therefore, because all the
elements of soliciting are included in the traveling offense, it
appears that section 775.021(4)(b)3....
...convictions here violated double jeopardy. The court wrote: “[B]ecause
the statutory elements of solicitation are entirely subsumed by the
statutory elements of traveling after solicitation, the offenses are the
same for purposes of the Blockburger same-elements test codified in
section 775.021(4), Florida Statutes.” 176 So....
CopyPublished | District Court of Appeal of Florida | 1995 Fla. App. LEXIS 305, 1995 WL 18715
...The fraud charge does not in that the State need only prove an attempt to possess. Thus, they are separate offenses for which separate convictions and sentences may be imposed. Blockburger v. United States,
284 U.S. 299 ,
52 S.Ct. 180 ,
76 L.Ed. 306 (1932); State v. McCloud,
577 So.2d 939 (Fla.1991); see also section
775.021, Florida Statutes (1991)....
CopyPublished | Florida 4th District Court of Appeal | 2003 WL 18451
..., by giving notice that an enhancement hearing would be held, and with section
775.084(3)(b), by serving written notice of the state's intent to habitualize. Petitioner also sought to compel both the state attorney and the trial court to comply with section
775.021(1)(language susceptible of differing constructions should be construed favorably to accused) and (4)(providing separate sentencing for each offense committed in a criminal episode, excluding lesser included offenses, with sentences to be either concurrent or consecutive), and with Hale v....
...e v. State,
766 So.2d 343 (Fla. 5th DCA 2000)(mere allegation of defective habitualization process does not constitute illegal sentence). Even if it could be considered, Petitioner cannot be entitled to relief from his misreading the 1979 version of section
775.021(4) [2] as precluding consecutive sentencing whenever a defendant is found guilty of a lesser included offense; the provision merely precludes sentencing a defendant for an offense as well as sentencing him/her for any lesser included offense(s) for which he/she could also have been found guilty....
...On August 25, 2000, Petitioner filed a petition for writ of habeas corpus with the supreme court, which transferred it to the circuit court as a rule 3.800(a) motion. He argued that (1) his sentences should have been imposed concurrently pursuant to Hale and also because he interpreted the wording of section 775.021(4) at the time of the offense to preclude consecutive sentencing for lesser included offenses; (2) he was being illegally detained because he was not given written notice of the state's intention to habitualize him; and (3) the trial...
...adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively. § 775.021(4), Fla....
CopyPublished | District Court of Appeal of Florida | 1994 Fla. App. LEXIS 146, 1994 WL 10813
...It necessarily holds incarceration over the head of the defendant like a sword of Damocles to enforce payment in a way that civil judgments cannot. Like most provisions in the Florida Criminal Code, section
775.089 is subject to the rule of lenity of section
775.021(1); if two constructions of the statutory text are possible, then we must use the one that favors the defendant....
CopyPublished | District Court of Appeal of Florida
I, § 9, Fla. Const. (double jeopardy clause); §
775.021(4)(b)(3), Fla. Stat. (2007) (codifying that criminals
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 174, 1991 WL 2729
...eet of a school is affirmed, but the conviction and sentence for possession of cocaine on Count II is reversed. AFFIRMED IN PART; REVERSED IN PART. DOWNEY, GUNTHER and GARRETT, JJ., concur. . Rehearing was denied in Carawan on December 10, 1987, and section 775.021(4) was amended on July 1, 1988....
CopyPublished | Florida 5th District Court of Appeal | 1981 Fla. App. LEXIS 18611
...However, we believe the Walker court incorrectly stated, “Here, neither crime is ‘lesser’ because both are third degree felonies.... ” Id. at 631 . If it were a correct statement of the law, the court should have applied section 775.-021(4), Florida Statutes (1979) and sustained the convictions on both counts, since section 775.021(4) permits separate sentences where the same conduct constitutes a violation of two or more statutes except where one is a lesser included offense of the other....
...ould be affirmed in this case because the evidence showed that appellant, in addition to doing violence, offered to do violence, which is not in any way a lesser included offense of battery upon a law enforcement officer. Therefore, the exception to section 775.021(4) regarding lesser included offenses would not apply, and section 775.-021(4) would permit the imposition of separate sentences on each conviction....
...to specific acts, i. e., “grabbing him [the officer] by the throat and trying to choke him;” therefore, the charge of resisting arrest is a category four lesser included offense of battery upon a law enforcement officer on the facts pleaded, and section 775.021(4) prohibits separate sentences for two offenses when one is a lesser included offense of the other....
CopyPublished | Florida 3rd District Court of Appeal | 1991 WL 2810
...hus a Blockburger [1] analysis does not preclude separate convictions for each offense. *154 Carawan v. State,
515 So.2d 161 (Fla. 1987), does not preclude separate convictions because the offenses in this case were committed after the amendments to section
775.021(4), Florida Statutes (1989), became effective. Those amendments overruled Carawan for offenses that occurred subsequent to the effective date of section
775.021(4), as amended....
CopyPublished | Florida 5th District Court of Appeal | 2012 Fla. App. LEXIS 359, 2012 WL 94577
...We affirm in all respects save one. As the State admirably concedes, under the facts of this case because Mr. Wesley was convicted of burglary with an assault or battery, the conviction of simple assault runs afoul of the double jeopardy provisions of the constitution. See § 775.021(4)(b)3, Fla....
CopyPublished | Florida 5th District Court of Appeal
violence in such offenses, or who preyed on children. §
775.21(3)(a), Fla. Stat. (2024). In 2001, at the
CopyPublished | Florida 4th District Court of Appeal
...Maisonet-
Maldonado,
308 So. 3d 63 (Fla. 2020), the Florida Supreme Court
determined that the single homicide rule – which prohibits dual
convictions for offenses resulting in a single death – is no longer applicable
under Florida law pursuant to a 1988 amendment to section
775.021(4),
Florida Statutes....
...the United States Constitution, nor does it run afoul of due process. The
holding does not meet the high bar of being either “unforeseeable” or
“indefensible” because abolition of the single homicide rule is
contemplated by the plain language of section 775.021(4), Florida Statutes
(2018)....
...dication
of guilt, shall be sentenced separately for each criminal offense,” and that
“[t]he intent of the Legislature is to convict and sentence for each criminal
offense committed in the course of one criminal episode or transaction . . .
.” § 775.021(4), Fla. Stat. (2018) (emphasis added). As the Florida
Supreme Court explained, “After the 1988 amendment, the plain language
of section 775.021 clearly expresses that offenses which pass the codified
Blockburger test should be punished separately and that there is no
exception for offenses arising from a single death.” Maisonet-Maldonado,
2
308 So....
CopyPublished | Florida 1st District Court of Appeal
...or burglary with a battery, so as to avoid the double jeopardy issues
addressed in the instant case.”).
Double jeopardy does not bar dual convictions for burglary
with assault and simple battery because the offenses include
different elements and none of the exceptions in section 775.021(4),
Florida Statues, 4 apply....
...sode: (1) offenses
which require identical elements of proof; (2) offenses which are
degrees of the same offense as provided by statute; and (3) offenses
which are lesser offenses, the statutory elements of which are
subsumed by the greater offense. § 775.021(4)(b), Fla....
CopyPublished | Supreme Court of Florida
...punishment analytical framework set forth in the United States
Supreme Court’s landmark decision of Blockburger v. United States,
284 U.S. 299 (1932). Next we turn to the Blockburger-inspired rule
of construction regarding multiple punishments contained in
section
775.021(4), Florida Statutes (2017)....
...the various
counts of the information presented different aspects of the same
criminal transaction and . . . the court should impose a sentence on
the count which charges the higher grade or degree of the offense.”
From its inception in 1976, section 775.021(4) “abrogated the single
transaction rule.” Borges v....
...The statutory rules thus embody a broad purpose “to
convict and sentence for each criminal offense committed”—even
when committed in the course of a single transaction or episode—
and a departure from principles of lenity as previously understood.
These “rules of construction” are set forth in section
775.021(4):
(4)(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 s...
...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.
§ 775.021(4), Fla....
...Stat.
The “principle of lenity” in subsection (1) requires that the
provisions of the Florida Criminal Code “and offenses defined by
other statutes shall be strictly construed,” so that “when the
language is susceptible of differing constructions, it shall be
construed most favorably to the accused.” § 775.021(1), Fla....
...test”—which is sometimes characterized as a different elements
- 15 -
test—is “codified” in subsection (4). State v. Marsh,
308 So. 3d 59,
61 (Fla. 2020); see also State v. Maxwell,
682 So. 2d 83, 84 (Fla.
1996) (“Section
775.021(4) is a codification of the Blockburger test,
sometimes referred to as the same-elements test, which inquires
whether each offense contains an element not contained in the
other; if not, they are the same offense and double jeopardy bars
subsequent punishment or prosecution.”)....
...IV.
Trappman’s core argument is that the two offenses of which he
was convicted were “committed during one continuous criminal
episode with one criminal intent” and multiple punishments were
precluded under the exception in section 775.021(4)(b)3....
...We also disapprove the decision of the Fifth District
Court of Appeal in Rivera v. State,
286 So. 3d 930 (Fla. 5th DCA
2019), for the same reason. In failing to consider the distinct acts
test, the Fifth District erroneously applied a categorical rule that,
under section
775.021(4), “multiple convictions and sentences” may
not be imposed “for aggravated battery and battery committed
against one victim within the same criminal transaction or episode.”
Id....
CopyPublished | Florida 4th District Court of Appeal | 2012 Fla. App. LEXIS 1780, 2012 WL 385647
...Additionally, “the rule of lenity requires that when language of a statute is susceptible of differing constructions, it must be construed most favorably to the accused.” State v. Hunter,
65 So.3d 1123, 1126 (Fla. 4th DCA 2011) (Warner, J., concurring) (citing §
775.021(1), Fla....
CopyPublished | Florida 4th District Court of Appeal
...at 1196.
Florida courts have consistently applied the Houser rule in cases
involving more than one homicide conviction for a single death in the
absence of legislative language to the contrary. See Goodman v. State, 229
1 Blockburger v. United States,
284 U.S. 299 (1932). The Blockburger test is
codified in section
775.021, Florida Statutes (2012), to determine whether
separate offenses exist.
2
So....
CopyPublished | Florida 2nd District Court of Appeal | 1992 Fla. App. LEXIS 731, 1992 WL 16658
...In Daniels v. State,
595 So.2d 952 (Fla.1992), issued after our opinion in the instant case and provided as supplemental authority by both parties to this appeal, the Florida Supreme Court held that a trial judge does not have the discretion under sections
775.021(4) and
775.084, Florida Statutes (1988), to impose consecutive minimum mandatory sentences for first-degree felonies committed by an habitual violent felony offender arising from a single criminal episode....
CopyPublished | District Court of Appeal of Florida | 1992 Fla. App. LEXIS 726, 1992 WL 16576
...entence for the present offense. Because the defendant was convicted for the 1986 offense in February 1987, before Carawan v. State,
515 So.2d 161 (Fla.1987), was decided in September 1987, the argument fails. The pre-Carawan line of cases following section
775.021(4), Florida Statutes (1983), are binding, and permit separate convictions for the crimes of sale and possession of cocaine....
CopyPublished | Florida 5th District Court of Appeal
...intent.” State v. Burris,
875 So. 2d 408, 409 (Fla. 2004) (citation omitted). “Instead, the
statute's plain and ordinary meaning must control[.]” Id. One statute that plainly controls
8
in this case is section
775.021(1), Florida Statutes (2014), which instructs that when a
criminal statute “is susceptible of differing constructions, it shall be construed most
favorably to the accused.”
It also seems significant to me that in choosing...
...The legislature
certainly could have written the statute that way. But, it did not.
Even the State, at oral argument, admitted that the statute could be reasonably
read as referring to the campus as a whole. If this is true—and it surely is—then we are
plainly directed by section 775.021(1) to read the statute “favorably to the accused.”
The majority seeks to avoid section 775.021(1) by casting the plain reading of the
statute as unreasonable on grounds that it would “lead to absurd results.” I disagree, and
see nothing absurd about the legislature’s choice to limit the type of common law
trespasses for which a person can be prosecuted and jailed....
CopyAgo (Fla. Att'y Gen. 2001).
Published | Florida Attorney General Reports
notification of the presence of sexual predators under section
775.21, Florida Statutes? In sum: The Chief of Police
CopyPublished | Supreme Court of Florida | 16 Fla. L. Weekly Supp. 194, 1991 Fla. LEXIS 390
...State,
561 So.2d 314 (Fla.2d DCA 1990), to answer the following certified question of great public importance: When a double jeopardy violation is alleged based on the crimes of sale and possession (or possession with intent to sell) of the same quantum of contraband and the crimes occurred after the effective date of section
775.021, Florida Statutes (Supp.1988), is it improper to convict and sentence for both crimes? * Id....
CopyPublished | Florida 2nd District Court of Appeal | 2016 Fla. App. LEXIS 2945, 2016 WL 747022
...der
appellate counsel's performance ineffective." (quoting Williamson v. Dugger,
651 So. 2d
84, 86 (Fla. 1994))). See also Valdes v. State,
3 So. 3d 1067, 1068 (Fla. 2009)
(receding from precedent that applied the "primary evil" test to interpret section
775.021(4)(b)(2), Florida Statutes (2008), and holding that the statute prohibits separate
punishments for crimes arising from the same criminal transaction only when a criminal
statute defines an offense with multiple degrees); State v....
CopyPublished | Florida 5th District Court of Appeal | 2008 WL 462975
...If a defendant attempts to rob two victims at the same time, he may be charged with two counts of attempted robbery and the court may impose consecutive statutory maximum sentences of 15 years in prison on each count, for a total sentence of 30 years. § 775.021(4), Fla....
CopyPublished | Florida 4th District Court of Appeal | 2001 Fla. App. LEXIS 1864, 2001 WL 166700
...The trial court agreed, set aside the attempted sexual battery conviction, and vacated the sentence associated with that offense. The State appeals and we reverse. It is the express intent of the Legislature to convict and sentence a defendant for each offense he commits during the course of a single criminal episode. See § 775.021(4)(b), Fla....
...The statute lists three exceptions: 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. § 775.021(4)(b)(l)-(3), Fla....
...jeopardy principles. This court disagreed and held that the dual convictions were proper. Specifically, the court noted that the additional elements of aggravated battery, as distinguished from simple battery, remove the crime from the exception to section 775.021(4)(b)....
CopyPublished | Florida 3rd District Court of Appeal | 2005 Fla. App. LEXIS 966, 2005 WL 236405
...to be resolved in favor of his release under the principle of lenity applied in criminal cases. Therefore, Whipple urges that the summary judgment must be reversed because DOC violated the principle of lenity. The rule of lenity has been codified in section 775.021 and provides that: [T]he 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. See § 775.021(1), Fla....
...This statute also provides 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 principle of lenity as set forth in subsection (1) to determine legislative intent. See § 775.021(4)(b), Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2005 Fla. App. LEXIS 860, 2005 WL 231207
...State,
507 So.2d 175 (Fla. 3d DCA 1987) (police officer). The rule of lenity requires that “[criminal statutes must be strictly construed, and when the language is susceptible to differing constructions, it must be construed most favorably to the accused.” §
775.021(1), Fla....
CopyPublished | Florida 5th District Court of Appeal | 2005 Fla. App. LEXIS 1678, 2005 WL 387544
...1 Second, because every element of section
316.1935(2) is included within section
316.1935(3), convictions under both subsections may not be based on the same episode of fleeing from the same officer. See Young v. State,
827 So.2d 1075 (Fla. 5th DCA 2002); Wilson v. State,
776 So.2d 347, 352 (Fla. 5th DCA 2001); §
775.021, Fla....
CopyPublished | Florida 4th District Court of Appeal | 2006 Fla. App. LEXIS 1870, 2006 WL 348701
...yed by the DJJ, employed at a facility licensed by the DJJ, or employed at a facility operated under a contract with the DJJ, J.D.’s conviction cannot stand. The State presented no such evidence here. 2 *211 Moreover, under the rule of lenity, see section 775.021(1), Florida Statutes, any ambiguity must be resolved in favor of J.D....
CopyPublished | Florida 5th District Court of Appeal | 2004 WL 256513
...4th DCA 2002), rev. granted,
837 So.2d 412 (Fla. 2003). REVERSED and REMANDED. MONACO, J., and SMITH, M.T., Associate Judge, concur. NOTES [1] We consolidated the appeals from the proceedings in the lower court: case numbers 2002-CF-739 and 2003-CF-194. [2] Section
775.021....
CopyPublished | Supreme Court of Florida | 28 Fla. L. Weekly Supp. 139, 2003 Fla. LEXIS 174, 2003 WL 297154
...ndants from multiple convictions and punishments for the same offense.” Gordon v. State,
780 So.2d 17, 19 (Fla.2001). Application of the test announced in Blockburger v. United States,
284 U.S. 299 ,
52 S.Ct. 180 ,
76 L.Ed. 306 (1932), codified in section
775.021, Florida Statutes (1997), reveals that the Double Jeopardy Clause is not violated because the statutory elements of false imprisonment are different from the elements of both battery and aggravated assault....
CopyPublished | Florida 2nd District Court of Appeal
...Absent clear legislative intent
to authorize separate punishments, courts employ the
Blockburger [v. United States,
284 U.S. 299 (1932),] "same
elements" test, i.e., "whether each offense has an element that
the other does not," codified at section
775.021(4)(a), Florida
2
Statutes (2009). If, as here, each of the offenses has an
element that the other does not, the court must then
determine if one of the exceptions set forth in section
775.021(4)(b) applies to preclude separate convictions and
sentences....
...itself provides for an offense with multiple degrees.' " Valdes,
3 So. 3d at
1076 (second alteration in original) (quoting State v. Paul,
934 So. 2d
1167, 1176 (Fla. 2006) (Cantero, J., specially concurring)).
Joseph concedes that the first and third exceptions set forth in
section
775.021(4)(b) do not apply....
CopyPublished | Florida 4th District Court of Appeal
...FLEEING AND ELUDING CAUSING SERIOUS INJURY OR
DEATH THAT INVOLVE THE SAME VICTIM?
1In Houser, the supreme court formally adopted the single homicide rule.
474
So. 2d at 1197.
2 In Chapman, the supreme court determined that the 1988 amendment to
section
775.021, Florida Statutes, did not supersede Houser and that the single
homicide rule was still the law in Florida.
625 So. 2d at 839.
3
Id. at *1. The court examined the case law evolution of the single homicide
rule with particular focus on the impact of the 1988 legislative amendment
to section
775.021, Florida Statutes....
...The court noted the 1988
amendment clarified “the principle of lenity should not be applied in a
double jeopardy analysis.” Id. at *3. After analyzing the wording of the
statute, our supreme court determined:
After the 1988 amendment, the plain language of section
775.021 clearly expresses that offenses which pass the
codified Blockburger test[ 3] should be punished separately and
that there is no exception for offenses arising from a single
death. Accordingly, we conclude that the 1988 amendment to
section 775.021 superseded our decision in Houser, and our
decision in Chapman holding otherwise was wrongly decided.
Id....
...4
* * *
Not final until disposition of timely filed motion for rehearing.
3In Blockburger v. United States,
284 U.S. 299 (1932), the United States Supreme
Court created the “same-elements” test for double jeopardy analysis, which was
subsequently codified in section
775.021(4), Florida Statutes....
CopyPublished | Florida 4th District Court of Appeal
...d for offenses which: (1)
require identical elements of proof; (2) are degrees of the same offense as
provided by statute; and (3) are lesser included offenses, the statutory
elements of which are subsumed by the greater offense. See §
775.021(4)(b), Fla. Stat. (2007). However, a defendant may be convicted
and sentenced for multiple offenses arising out of the same criminal
episode, if the offenses are separate. § 775.021(4)(a), Fla....
CopyAgo (Fla. Att'y Gen. 1997).
Published | Florida Attorney General Reports
brutally murdered by a sexual offender.1 In section
775.21, Florida Statutes (1996 Supplement), the Legislature
CopyPublished | Florida 2nd District Court of Appeal | 1991 Fla. App. LEXIS 681, 1991 WL 9386
...State, we certify to the Florida Supreme Court the following question of great public importance: WHEN A DOUBLE JEOPARDY VIOLATION IS ALLEGED BASED ON THE CRIMES OF SALE AND POSSESSION (OR POSSESSION WITH INTENT TO SELL) OF THE SAME QUANTUM OF CONTRABAND AND THE CRIMES OCCURRED AFTER THE EFFECTIVE DATE OF SECTION 775.021, FLORIDA STATUTES (SUPP.1988), IS IT IMPROPER TO CONVICT AND SENTENCE FOR BOTH CRIMES? CAMPBELL, A.C.J., and LEHAN and THREADGILL, JJ., concur.
CopyPublished | Florida 2nd District Court of Appeal | 1991 Fla. App. LEXIS 678, 1991 WL 9362
...State, we certify to the Florida Supreme Court the following question of great public importance: WHEN A DOUBLE JEOPARDY VIOLATION IS ALLEGED BASED ON THE CRIMES OF SALE AND POSSESSION (OR POSSESSION WITH INTENT TO SELL) OF THE SAME QUANTUM OF CONTRABAND AND THE CRIMES OCCURRED AFTER THE EFFECTIVE DATE OF SECTION 775.021, FLORIDA STATUTES (SUPP.1988), IS IT IMPROPER TO CONVICT AND SENTENCE FOR BOTH CRIMES? CAMPBELL, A.C.J., and LEHAN and THREADGILL, JJ., concur.
CopyPublished | Florida 2nd District Court of Appeal | 1990 Fla. App. LEXIS 9176, 1990 WL 195825
...As in V.A.A., we certify to the Florida Supreme Court the following question of great public importance: WHEN A DOUBLE JEOPARDY VIOLATION IS ALLEGED BASED ON THE CRIMES OF SALE AND POSSESSION (OR POSSESSION WITH INTENT TO SELL) OF THE SAME QUANTUM OF CONTRABAND AND THE CRIMES OCCURRED AFTER THE EFFECTIVE DATE OF SECTION 775.021, FLORIDA STATUTES (SUPP.1988), IS IT IMPROPER TO CONVICT AND SENTENCE FOR BOTH CRIMES? LEHAN, A.C.J., and HALL, J., concur.
CopyPublished | Florida 2nd District Court of Appeal
...n electricity when he later
sells cannabis grown under an illicitly powered sun lamp. We decline to expand the
meaning of the trafficking statute through the artifice of the State's "stream of
commerce" theory; in fact, we are forbidden to do so. § 775.021(1), Fla....
CopyPublished | Florida 4th District Court of Appeal | 2000 WL 1781404
...s" for purposes of the criminal law. Cf. Helmy v. Swigert,
662 So.2d 395, 397 (Fla. 5th DCA 1995)("a dog is considered to be personal property"). Further, even if there were doubt as to whether a dog is an individual for the purposes of the statute, section
775.021(1) provides that, in construing statutes, "when the language is susceptible of differing constructions, it shall be construed most favorably to the accused." If we were in doubt as to whether a dog was an individual, we would have to...
CopyPublished | Florida 5th District Court of Appeal
...December 5, 2023
PER CURIAM.
AFFIRMED. See Roughton v. State,
185 So. 3d 1207, 1211 (Fla.
2016) (“We recede from our prior decision in Gibbs [v. State,
698
So. 2d 1206 (Fla. 1997),] and hold that a double jeopardy analysis
must—in accordance with section
775.021(4)[, Florida Statutes]—
be conducted without regard to the accusatory pleading or the
proof adduced at trial, even where an alternative conduct statute
is implicated.”).
EDWARDS, C.J., LAMBERT, and MACIVER, JJ., concur....
CopyPublished | Florida 2nd District Court of Appeal | 1990 Fla. App. LEXIS 9893, 1990 WL 212852
...As in V.A.A., we certify to the Florida Supreme Court the following question of great public importance: WHEN A DOUBLE JEOPARDY VIOLATION IS ALLEGED BASED ON THE CRIMES OF SALE AND POSSESSION (OR POSSESSION WITH INTENT TO SELL) OF THE SAME QUANTUM OF CONTRABAND AND THE CRIMES OCCURRED AFTER THE EFFECTIVE DATE OF SECTION 775.021, FLORIDA STATUTES (1988 SUPP.), IS IT IMPROPER TO CONVICT AND SENTENCE FOR BOTH CRIMES? SCHOONOVER, C.J., and CAMPBELL and FRANK, JJ., concur.
CopyPublished | District Court of Appeal of Florida | 14 Fla. L. Weekly 103, 1988 Fla. App. LEXIS 5786, 1988 WL 139093
...To support this claim he cites to the Florida Supreme Court case of Carawan v. State,
515 So.2d 161 (Fla.1987). Carawan , however, does not support the appellant in this regard. Moreover, we note that subsequent to Ca-rawan, the legislature amended section
775.021(4), Florida Statutes (1983), to clarify its intent in sentencing in cases of multiple convictions for separate crimes committed during the course of one criminal episode or transaction....
CopyPublished | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 18767
...See § 776.082. “[NJothing in the PRR statute can be construed as restricting a trial judge’s general discretion to impose sentences consecutively or concurrently.” Mosley,
149 So.3d at 688 (quoting Reeves v. State,
957 So.2d 625, 630 (Fla. 2007)); see §
775.021(4) (providing that a sentencing judge may order separate sentences to be served concurrently or consecutively)....
CopyPublished | Florida 1st District Court of Appeal | 2015 Fla. App. LEXIS 19090, 2015 WL 9598283
...The district court decidedly did not hold that a pre-2007 conviction for a qualifying offense could not be used to designate a probation violator as a violent felony offender of special concern. Asserting that the statute is ambiguous, Williamson urges us to employ the Rule of Lenity. See § 775.021(1), Fla....
CopyPublished | Florida 2nd District Court of Appeal | 1990 Fla. App. LEXIS 9599, 1990 WL 211471
...State, we certify to the Florida Supreme Court the following question of great public importance: WHEN A DOUBLE JEOPARDY VIOLATION IS ALLEGED BASED ON THE CRIMES OF SALE AND POSSESSION (OR POSSESSION WITH INTENT TO SELL) OF THE SAME QUANTUM OF CONTRABAND AND THE CRIMES OCCURRED AFTER THE EFFECTIVE DATE OF SECTION 775.021, FLORIDA STATUTES (SUPP.1988), IS IT IMPROPER TO CONVICT AND SENTENCE FOR BOTH CRIMES? SCHEB, A.C.J., and RYDER and THREADGILL, JJ., concur.
CopyPublished | Florida 2nd District Court of Appeal | 1990 Fla. App. LEXIS 9608, 1990 WL 211470
...State, we certify to the Florida Supreme Court the following question of great public importance: *993 WHEN A DOUBLE JEOPARDY VIOLATION IS ALLEGED BASED ON THE CRIMES OF SALE AND POSSESSION (OR POSSESSION WITH INTENT TO SELL) OF THE SAME QUANTUM OF CONTRABAND AND THE CRIMES OCCURRED AFTER THE EFFECTIVE DATE OF SECTION 775.021, FLORIDA STATUTES (SUPP.1988), IS IT IMPROPER TO CONVICT AND ....
CopyPublished | Florida 2nd District Court of Appeal | 1989 Fla. App. LEXIS 7238, 1989 WL 153607
...He argues both convictions cannot stand because they are based on the sale of one piece of crack cocaine to an undercover police agent. We agree. The crimes in this case took place on April 8, 1988. They predate the legisla *797 ture’s amendment to section 775.021(4)....
CopyPublished | Florida 5th District Court of Appeal | 1989 Fla. App. LEXIS 7229, 1989 WL 153616
...We affirm all but the conviction and sentence for possession of cocaine. *801 The record in this case shows that all of the crimes charged relate to the same quantum of cocaine in Kelly’s possession at the time of his arrest. The crimes were committed prior to the amendment of section 775.021(4), Florida Statutes (Supp.1988)....
CopyPublished | Supreme Court of Florida
changes are based on legislative amendments to section
775.21(2), Florida Statutes (2018). See
CopyPublished | Florida 4th District Court of Appeal
...ast ambiguous
and ‘must be strictly construed most favorably to the accused.’” Maxwell
v. State,
110 So. 3d 958, 961 (Fla. 4th DCA 2013) (quoting Polite v. State,
973 So. 2d 1107, 1112 (Fla. 2007)). The rule of lenity requires us to do
so. See §
775.021(1), Fla....
CopyPublished | District Court of Appeal of Florida | 1979 Fla. App. LEXIS 16225
...When she tried to scream a third time, the object in his hand broke and he told her to move over and let him behind the wheel. Rorick managed to get one hand loose and started to honk the horn. Hearns fled. The controlling statute with regard to this sentencing issue is Section 775.021(4), Florida Statutes (1976 Supp.): “(4) Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shal...
...nment, assault, display of a weapon during the commission of a criminal offense and battery involve proof of the attempted robbery, these counts are lesser included offenses of the attempted robbery count and, therefore, fall within the exception to Section 775.021(4)....
...Hearns was charged separately with attempted robbery with the use of a deadly weapon (a piece of glass or broken bottle). The display of a deadly weapon, being a lesser included offense of the attempted robbery charge, falls within the exception to Section 775.021(4), Florida Statutes (1976 Supp.)....
CopyPublished | Florida 2nd District Court of Appeal | 2016 Fla. App. LEXIS 18458
..."To determine whether an offense is subsumed, the
elements of each crime must be examined, without regard to the charging document or
the evidence presented at trial." Mays v. State,
198 So. 3d 35, 36 (Fla. 2d DCA 2015).
The legislature has told us the same. §
775.021(4)(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 ....
...constitutes a violation of two distinct statutory provisions, the test to be applied . . . is
whether each provision requires proof of a fact which the other does not."
284 U.S. at
304 (citing Gavieres v. United States,
220 U.S. 338, 342 (1911)); see also §
775.021(4)(a) ("[O]ffenses 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.")....
...State,
386 So. 2d 890 (Fla. 1st DCA 1980), does not
advance his cause. Ortiz-Medina involved a conviction for armed kidnapping and
aggravated assault with a deadly weapon. Ortiz-Medina relied solely on James which
interpreted the 1977 version of section
775.021(4)....
CopyPublished | Florida 4th District Court of Appeal | 2013 WL 6670841, 2013 Fla. App. LEXIS 20056
...State,
842 So.2d 46, 51 (Fla.2002), the Supreme Court held that this statute “contains a requirement of a general intent to commit an act that is obviously reasonably related to the harm sought to be avoided, rather than a more specific intent.” (emphasis added). The rule of lenity, section
775.021(1), Florida Statutes (2012), provides that where the language of the Florida Criminal Code “is susceptible of differing constructions, it shall be construed most favorably to the accused.” When Reynolds is read in conjunction with...
CopyPublished | District Court of Appeal of Florida | 1982 Fla. App. LEXIS 21920
...In urging reversal, appellant first contends that because aggravated assault is a lesser included offense to armed robbery, and because her two crimes were committed in the course of a single criminal transaction, the imposition of separate sentences was contrary to the provisions of § 775.021(4), Fla.Stat....
...*101 There was more than adequate evidence to support the jury’s determination that appellant had actual physical possession of a firearm from time to time during the pendency of the subject criminal episode. AFFIRMED. BOOTH and WENTWORTH, JJ., concur. . § 775.021(4), Fla.Stat....
CopyPublished | Florida 5th District Court of Appeal
be designated a sexual predator pursuant to section
775.21(4), Florida Statutes, (1) if he or she was
CopyPublished | Florida 2nd District Court of Appeal | 2013 WL 6510901, 2013 Fla. App. LEXIS 19799
...Finally, the standard jury instruction and the B.L.S. and Jackson cases are consistent with the statutory directive that when the language of any provision in the criminal code is susceptible of differing constructions, “it shall be construed most favorably to the accused.” § 775.021(1), Fla....
CopyPublished | District Court of Appeal of Florida | 14 Fla. L. Weekly 2866, 1989 Fla. App. LEXIS 7035, 1989 WL 149626
...State,
515 So.2d at 161 , and its progeny, this court vacated the convictions for unlawful possession of a firearm while *565 engaged in a criminal offense and for shooting into an occupied building. Although, Carawan v. State,
515 So.2d at 161 , has been superseded by section
775.021(4), Florida Statutes (Supp.1988), the statutory change does not apply to offenses committed prior to the effective date of the amendment....
CopyPublished | Florida 1st District Court of Appeal
...Because the same language is used
in section
775.21(4)(a), we should reach the same result.
Accordingly, we find section 18-3-405.3(1), Colorado Revised
Statutes, is “similar” to section
794.011(8)(b), Florida Statutes, for
the purpose of designation as a sexual predator under section
775.021(4)(a), Florida Statutes.
B
1
Montgomery v....
CopyPublished | Florida 2nd District Court of Appeal | 1991 Fla. App. LEXIS 12304, 16 Fla. L. Weekly Fed. D 3066
...We find merit only in his contention that the trial court erred in imposing separate convictions and sentences for both delivery and possession of the same illegal drugs. The appellant’s offenses occurred prior to July 1, 1988, the effective date of the amendment to section 775.021(4), Florida Statutes (1987), which authorizes separate convictions and sentences for sale or delivery of a controlled substance and possession of that same substance....
...Before the amendment, conviction for both delivery and possession for one criminal act was determined to be a violation of double jeopardy principles. Carawan v. State,
515 So.2d 161 (Fla.1987); Gordon v. State,
528 So.2d 910 (Fla. 2d DCA 1988). Since section
775.021(4) cannot be applied retroactively, State v....
CopyPublished | Supreme Court of Florida
...m.”
Maisonet-Maldonado,
283 So. 3d at 862. Accordingly, the Fifth District reversed
the postconviction order and certified the question currently before us.
II. ANALYSIS
Because the statutory language of section
775.021, Florida Statutes (2010),
clearly states the intent of the Legislature to punish each available offense and does
not provide an exception for offenses arising from a single death, we conclude that
section
775.021 supersedes our decisions establishing the single homicide rule and
that our decision holding otherwise, State v....
...“A double jeopardy claim based upon undisputed facts presents a pure
question of law and is reviewed de novo.” Pizzo v. State,
945 So. 2d 1203, 1206
(Fla. 2006).
-4-
U.S. 299 (1932)] “same-elements” test pursuant to section
775.021(4), Florida
Statutes[,] is the sole method of determining whether multiple punishments are
double-jeopardy violations.’ ” Shelley,
176 So. 3d at 917 (alterations in original)
(quoting Gaber v. State,
684 So. 2d 189, 192 (Fla. 1996)).
Section
775.021(4) provides:
(4)(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, sha...
...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.
§ 775.021(4), Fla....
...aggravated battery arising from a single act were similarly prohibited. Id.
Embracing the rule of lenity in the context of double jeopardy, the Carawan Court
found that “Florida’s lenity requirement constitute[d] a rule of construction
coequal to the Blockburger test codified in section 775.021(4)” and reconciled the
-6-
two by concluding that the rule of lenity prevailed “where there [was] a reasonable
basis for concluding the legislature did not intent multiple punishments.” Id. at
168.
The Legislature, however, disagreed with our decision in Carawan and, in
1988, enacted an amendment to section 775.021, Florida Statutes, to clarify that
the principle of lenity should not be applied in a double jeopardy analysis....
...2d at 839 (“We see nothing more in the 1988
amendment than that it was intended to limit the rule of lenity and to override
[Carawan]. Especially, we do not read the amendment as an overruling of
Houser . . . .” (citations omitted)). Faced with a plain reading of section 775.021,
however, we now conclude otherwise.
-7-
“A court’s determination of the meaning of a statute begins with the
language of the statute.” Halifax Hosp....
...‘look behind the statute’s plain language for legislative intent or resort to rules of
statutory construction.’ ” Id. (quoting City of Parker v. State,
992 So. 2d 171, 176
(Fla. 2008)). For the following reasons, we conclude that the plain meaning of
section
775.021, Florida Statutes, abolished the single homicide rule and
superseded our decision in Houser, and thus our decision holding otherwise,
Chapman, was incorrectly decided.
First, subsection (4)(a) expresses the intent of the Legi...
...The subsection states that “[w]hoever, 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.” § 775.021(4)(a), Fla....
...is the only factor
for determining whether the Legislature intended to punish separate offenses. See
also Valdes,
3 So. 3d at 1072-74 (rejecting the “primary evil” or “core offense”
approach previously taken by this Court in interpreting section
775.021(4)(b)(2)).
This textual change is incompatible with the single homicide rule because the
single homicide rule requires a judge to look at the factual circumstances of the
crime to determine whether the convictions arise from the sa...
...Further, as we have explained, the Houser
decision and resulting single homicide rule were rooted in principles of lenity. See
Carawan,
515 So. 2d at 170 (“Finding no legislative intent to the contrary, we
therefore resolved all doubts in favor of lenity.”) (summarizing Houser). But in
the 1988 amendment to section
775.021, the Legislature provided clear language to
the contrary and rejected the application of lenity in double jeopardy analysis.
Finally, subsection (4)(b) gives three exceptions to the Blockburger same-
elements test, none of which recognizes the single homicide rule....
... general protection against multiple convictions for offenses arising from a single
death, and because the list is exhaustive, we may not add an exception where the
text does not provide for one.
After the 1988 amendment, the plain language of section 775.021 clearly
expresses that offenses which pass the codified Blockburger test should be
punished separately and that there is no exception for offenses arising from a single
death. Accordingly, we conclude that the 1988 amendment to section 775.021
superseded our decision in Houser, and our decision in Chapman holding
otherwise was wrongly decided.
A conclusion that a predecessor Court has erred, however, does not end our
analysis....
...on the existence of the single homicide rule, nor does it appear that he has changed
any legal positions to his detriment in reliance on the rule. Accordingly, we now
recede from State v. Chapman,
625 So. 2d 838 (Fla. 1993), and hold that the 1988
amendment to section
775.021, Florida Statutes, superseded Houser v....
...This Case
Proceeding to the facts at hand, we must address whether Maisonet-
Maldonado’s dual convictions for vehicular manslaughter and fleeing or eluding
causing serious injury or death are prohibited under the same-elements test
- 12 -
codified in section 775.021(4), Florida Statutes....
...death of, or great bodily harm to, another.
(1) Vehicular homicide is:
(a) A felony of the second degree, punishable as provided in s.
775.082, s.
775.083, or s.
775.084.
§
782.071(1)(a), Fla. Stat. (2010).
“Under the plain meaning of section
775.021(4)(a), Florida Statutes (1993),
a court is required to examine each of a defendant’s convictions arising out of the
same incident to determine whether ‘each offense requires proof of an element that
the other does not, without regard to the accusatory pleading or the proof adduced
at trial.’ ” Gaber,
684 So. 2d at 190 (quoting §
775.021(4)(a), Fla....
...c conduct charged or proven at trial.”
Tambriz-Ramirez v. State,
248 So. 3d 1087, 1094 (Fla. 2018) (quoting Tambriz-
Ramirez v. State,
213 So. 3d 920, 923 (Fla. 4th DCA 2017)).
Maisonet-Maldonado’s dual convictions are not prohibited by section
775.021, Florida Statutes....
...sing serious
injury or death. See Tambriz-Ramirez,
248 So. 3d at 1095 (“In other words, one
can commit a burglary with a battery without committing an attempted sexual
battery.”).
Additionally, none of the three statutory exceptions in section
775.021(4)(b)
apply to Maisonet-Maldonado’s offenses....
...CONCLUSION
For the above reasons, we recede from State v. Chapman,
625 So. 2d 838
(Fla. 1993), and hold that this Court’s decision in Houser v. State,
474 So. 2d 1193
(Fla. 1985), establishing the single homicide rule, was superseded by section
775.021, Florida Statutes (1988). Accordingly, we conclude that dual convictions
for fleeing or eluding causing serious injury or death and vehicular manslaughter
are not prohibited by section
775.021(4), Florida Statutes, answer the certified
question in the negative, quash the Fifth District’s decision in Maisonet-
Maldonado, and remand for proceedings consistent with our decision.
-...
CopyPublished | Supreme Court of Florida
...2d DCA 2018), on the ground
that it expressly and directly conflicts with the Fifth District’s decision in Lott v.
State,
74 So. 3d 556, 559-61 (Fla. 5th DCA 2011), and the Fourth District’s
decision in Anguille v. State,
243 So. 3d 410, 414-15 (Fla. 4th DCA 2018). 1
Because the same-elements test in section
775.021, Florida Statutes (2014),
controls whether dual convictions violate the prohibition against double jeopardy,
we hold that dual convictions for driving under the influence causing serious
1....
...Marsh,
253 So. 3d at 677-78.
II. ANALYSIS
In State v. Maisonet-Maldonado, No. SC19-1947, slip op. at 12 (Fla. Dec.
10, 2020), we recognized that the single homicide rule was incompatible with the
plain language of section
775.021(4), Florida Statutes, and receded from our
precedent holding otherwise....
...Accordingly, the appropriate analysis for whether
dual convictions for DUI with serious bodily injury and DWLS with serious bodily
injury are prohibited under the constitutional protection against double jeopardy is
the Blockburger same-elements test as codified in section 775.021(4), Florida
Statutes....
...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.
§ 775.021(4), Fla....
...ded driving privilege.
Because “each offense requires proof of an element that the other does not,” the
offenses are separate, and there is no violation of the constitutional right to be free
from double jeopardy, unless an exception applies. § 775.021(4), Fla....
...As to the third exception, this Court has explained
that “[i]f two statutory offenses are found to be separate under Blockburger, then
the lesser offense is not subsumed by the greater offense.” Gaber,
684 So. 2d at
192. Thus, the exceptions set forth in section
775.021(4)(b), Florida Statutes, do
not apply to Marsh’s convictions.
III. CONCLUSION
We hold that dual convictions for DUI with serious injury and DWLS with
serious injury are not prohibited under the Blockburger same-elements test or any
statutory exceptions codified in section
775.021(4), Florida Statutes....
CopyPublished | Florida 5th District Court of Appeal | 2004 Fla. App. LEXIS 18853, 2004 WL 2827003
...If the Legislature did not clearly express its intention to authorize separate punishments, the courts must resort to the test of statutory construction established in Blockburger v. United States,
284 U.S. 299 ,
52 S.Ct. 180 ,
76 L.Ed. 306 (1932), now codified in section
775.021(4), Florida Statutes (2001).
CopyPublished | Florida 3rd District Court of Appeal
2004), that the Florida Sexual Predator Act, section
775.21, Florida Statutes (1999), is unconstitutional
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 8084, 1991 WL 147550
...We reverse on the authority of State v. McCloud,
577 So.2d 939 (Fla.1991). In State v. McCloud, the Florida Supreme Court held that a defendant may properly be convicted of both sale and possession of the same quantum of cocaine where the crimes occurred after the effective date of §
775.021, Fla.Stat....
CopyPublished | Court of Appeals for the Eleventh Circuit
...Florida courts apply the “same elements” test from Blockburger v. United
States,
284 U.S. 299, 304 (1932), to determine whether multiple convictions violate
double jeopardy. See Lee v. State,
258 So.3d 1297, 1301 (Fla. 2018) (explaining that
the question under Fla. Stat. §
775.021(4)(b) is whether each offense contains an
element not contained in the other)....
CopyPublished | Florida 4th District Court of Appeal | 2004 Fla. App. LEXIS 11471, 2004 WL 1747373
...Dunbar responded by lifting the victim up and swinging her completely around while she continued to grip the purse. Ultimately, the victim was forced to release the purse, but not before she suffered from two broken fingers and the dislocation of another. Both the victim and a bystander identified Dunbar as the assailant. Section 775.021(4)(b), Florida Statutes, directly addresses the issue of whether multiple convictions can arise from a single criminal act....
...The statute provides for a separate conviction and sentence for each criminal offense committed during a single criminal episode, so long as the separate offenses do not require the same elements of proof, the offenses are not degrees of the same offense, and one offense is not subsumed by another. § 775.021(4)(b), Fla....
CopyAgo (Fla. Att'y Gen. 2011).
Published | Florida Attorney General Reports
thereof, you cite to several provisions of section
775.21, Florida Statutes, "The Florida Sexual Predators
CopyPublished | District Court of Appeal of Florida | 14 Fla. L. Weekly 2043, 1989 Fla. App. LEXIS 4855
...The aggravated assault conviction was established by proof that Smith pointed a firearm at the victim. The use of a firearm in the commission of a felony conviction encompasses solely the same assault with the gun. One of the two convictions must be vacated because multiple convictions in this case violate section 775.021(4), Florida Statutes (1987) and Carawan v....
...e double jeopardy clause, and we reject its legal conclusion.
459 U.S. at 369 ,
103 S.Ct. at 673 . In Florida the state legislature has expressly stated it intends to apply a Block- *757 burger test to multiple punishments in a single trial setting. §
775.021(4)(a), Fla....
...While we sympathize with Judge Stone’s viewpoint, we believe that the supreme court’s language *758 in Barton is controlling. However, we certify the following question as one which will have a great effect on the administration of justice: 6 WHEN ONE OF TWO CONVICTIONS MUST BE REVERSED UNDER SECTION 775.021(4), SHOULD THE TRIAL COURT IMPOSE JUDGMENT ON THE COUNT THAT WOULD RESULT IN THE DEFENDANT RECEIVING THE LONGEST OR MOST SEVERE SENTENCE UNDER THE GUIDELINES OR OTHER APPLICABLE STATUTES (WITHOUT REGARD TO A POSSIBLE DEPARTURE SENTENC...
CopyPublished | Florida 2nd District Court of Appeal | 14 Fla. L. Weekly 1839, 1989 Fla. App. LEXIS 4368, 1989 WL 85719
...Both counts involved the identical quantum of cocaine. On the authority of State v. Smith,
547 So.2d 613 (Fla.1989), we reverse. In Smith , the Florida Supreme Court held that (1) Carawan v. State,
515 So.2d 161 (Fla.1987) has been overridden by the 1988 amendment to section
775.021(4), 2 but that (2) the override will not be retroactively applied to offenses committed before the effective date of the amendment (July 1, 1988)....
CopyPublished | Florida 2nd District Court of Appeal
physical violence and to repeat their offenses." §
775.21(3)(a). In this case the Father's conviction
CopyPublished | Florida 4th District Court of Appeal | 2012 WL 3711490, 2012 Fla. App. LEXIS 14499
...His claim that the two robbery offenses, to which he pleaded, could not be scored separately on his scoresheet is without merit on its face. The scoring of these separate convictions, even if they did arise from the same criminal episode, is not erroneous and does not violate double jeopardy. § 775.021, Fla....
CopyPublished | Florida 5th District Court of Appeal | 2015 Fla. App. LEXIS 12851, 2015 WL 5051142
...ent dates, from different victims, and from different locations. Based upon the considerations set forth above when discussing double jeopardy, it is clear that Appellant committed two separate crimes for the purpose of evaluating the application of section
775.021, Florida Statutes (2012). Conviction of a second-degree felony may be punished by up to fifteen years’ incarceration. §
775.082(3)(c), Fla. Stat. (2012). Thus, Appellant’s sentence for each conviction was within the statutory range. The trial court is required by section
775.021(4)(a) to sentence a defendant separately on each charge and is given discretion to impose the sentences concurrently or consecutively as it sees fit....
CopyPublished | Supreme Court of Florida | 2014 WL 4636358
Supervision of the Department of Corrections) §
775.21(6)(b), Fla. Stat. To prove the crime of Failure
CopyPublished | Florida 5th District Court of Appeal
correctly designated a sexual predator under section
775.21(4)(a), Florida Statutes (2018), Florida’s
CopyPublished | Supreme Court of Florida
...2002-258, § 1, Laws of Fla.
- 19 -
specialized definition saying that a purchase is complete upon
payment, if the Legislature wishes to do so.
C.
Finally, there is the rule of lenity. Through section 775.021(1),
Florida Statutes, the Legislature has elevated lenity from a canon of
construction to a statutory command. That statute tells us to
construe provisions in the criminal code “strictly.” § 775.021(1),
Fla....
...2013) (rule of lenity applies “if the statute remains ambiguous
after consulting traditional canons of statutory construction.”).
Conage says that the rule of lenity requires us to resolve ties
in his favor, because he is the defendant in the underlying federal
case. We disagree. The reference in section 775.021(1) to “the
accused” has to mean a person being prosecuted for allegedly
violating a criminal law of Florida....
CopyPublished | District Court of Appeal of Florida | 2012 WL 3629372, 2012 Fla. App. LEXIS 14164
...The question becomes whether the Legislature intended to authorize separate punishments. Here, there is no clear legislative intent to allow for multiple punishments for both lewd or lascivious battery 1 and lewd or lascivious molestation, 2 other than the Legislature’s general position, as articulated in section 775.021(4)(b), Florida Statutes (2011), to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction. Absent a clear statement of legislative intent, courts employ the Blockburger 3 test to determine whether multiple punishments are permissible. Codified in section 775.021, Florida Statutes, that test provides: 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...
...ces 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. § 775.021(4)(a), Fla....
...ptions apply: 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. § 775.021(4)(b), Fla....
...However, a literal application of the codified Blockburger test is problematic when offenses can be committed in such a wide variety of ways, especially in light of the instruction that courts are to undergo a double jeopardy analysis “without regard to the accusatory pleading or the proof adduced at trial.” See § 775.021(4)(a), Fla....
...In Gibbs , the defendant was charged with trafficking in cocaine and simple possession of the same cocaine. Noting that trafficking in cocaine can be committed by either selling, purchasing, delivering, bringing into the State, or possessing cocaine, the supreme court concluded that, pursuant to section 775.021(4)(a), Florida Statutes, it was precluded from examining the evidence to determine whether each charge involved the same quantum of cocaine....
CopyPublished | Florida 4th District Court of Appeal | 1990 Fla. App. LEXIS 6431, 1990 WL 121773
...Judge. The appellant has presented two issues for our review. The states concedes that the second issue is meritorious, and we agree. The appellant was convicted of both delivery and possession of the same heroin, offenses predating the amendment of section 775.021(4), Florida Statutes (Supp.1988)....
CopyPublished | Florida 1st District Court of Appeal
...1 The trial court noted that it would impose the same sentence
even if Appellant could be convicted on only one of the counts.
2
punishments violate double jeopardy is the Blockburger 2 “same
elements” test, which is codified in section 775.021(4)(a), Florida
Statutes, and provides that “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.”
Id. at 66–67. Pursuant to section 775.021(4)(a), we must examine
the statutory elements of the offenses and consider the entire
range of conduct prohibited by the statutes, and we may not
consider the specific conduct charged or proved at trial....
...exceptions to the Blockburger test: “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.” § 775.021(4)(b), Fla....
...does not – age of the victim in section
800.04(7) and location in
section
800.03(1) –, and section
800.04(7) prohibits a wider range
of conduct such that a violation thereof can be established with
proof of an act other than exposure. Additionally, none of the
exceptions in section
775.021(4)(b) apply....
...n public. Because
section
800.03(1) is ambiguous, the rule of lenity requires us to
resolve the ambiguity in Appellant’s favor and hold that the
allowable unit of prosecution is the number of exposures, not the
number of persons witnessing it. See §
775.021(1), Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2015 Fla. App. LEXIS 12553, 2015 WL 4965909
...The tampering charge concerned Mays's offer
of pecuniary gain to induce L.B. to testify untruthfully in that deposition. See §
914.22(1)(f), Fla. Stat. (2011). Mays argues that he could not properly be convicted of
both charges based on the single incident.
Section
775.021(4), Florida Statutes (2011), expresses the Legislature's
intention that a defendant be convicted and sentenced for each separate criminal
offense committed in the course of a criminal episode. But the statute makes an
exception in the event of "[o]ffenses which are lesser offenses the statutory elements of
which are subsumed by the greater offense." §
775.021(4)(b)(3)....
...that the induced person actually make
the false statement in the official proceeding. Therefore, the elements of the latter were
subsumed by the former, and Mays's conviction of both crimes based on the same
incident violated double jeopardy. See § 775.021(4)(b)(3).
The remedy is to vacate the conviction for the lesser offense....
CopyPublished | Florida 4th District Court of Appeal | 2014 WL 4082938, 2014 Fla. App. LEXIS 12814
...permissible sentence (“LPS”) produced by a Criminal Punishment Code
1 Appellant contends that the sentencing judge rejected consecutive sentencing
because the offenses were committed in a single criminal episode. However, that
would not preclude consecutive sentencing. See § 775.021(4)(a), Fla....
CopyPublished | Florida 5th District Court of Appeal | 2016 Fla. App. LEXIS 12580, 2016 WL 4415095
...minor through a single use of a computer device prior to
traveling to meet the minor for unlawful sexual activity, double
jeopardy principles would preclude convictions under both
subsections.
Id. at 143 (footnote omitted) (citing § 775.021(4)(b)3., Fla....
...subsumed by the statutory elements of traveling after
solicitation, the offenses are the same for purposes of the
Blockburger [v. United States, 284 U.S.299,
52 S.Ct. 180,
76
L.Ed. 306 (1932)] same-elements test codified in section
775.021(4), Florida Statutes....
CopyPublished | Florida 1st District Court of Appeal | 2014 WL 4056555, 2014 Fla. App. LEXIS 12660
...ree murder charges. The trial court properly adjudicated Mr. Denson guilty of attempted first-degree felony murder as to each victim instead. See Williams v. State,
90 So.3d 931, 934-35 (Fla. 1st DCA 2012) (“The Florida Supreme Court has held that section
775.021, Florida Statutes, does not abrogate the merger principle, which prohibits multiple punishments for a single killing....
CopyPublished | Florida 5th District Court of Appeal | 2001 Fla. App. LEXIS 11497
the Florida Sexual Predators Act (the Act), section
775.21, Florida Statutes (2000). Kelly appeals his
CopyPublished | Florida 3rd District Court of Appeal | 1994 Fla. App. LEXIS 8177, 1994 WL 440559
...g a robbery on one victim and committing an assault on the other. And it remains a separate and distinct charge notwithstanding that the convictions for the other two charges were enhanced by use of the firearm in committing those offenses. Applying section 775.021, Florida Statutes, and the principles of Blockburger v....
CopyPublished | Florida 1st District Court of Appeal
...contrary to the
provisions of Section
790.23(1)(a), Florida Statutes.” However,
“possession of a concealed weapon” is not an offense named in
section 790.023(1), Florida Statutes. The jury instructions
* The rule of lenity, codified in section
775.021, Florida
Statutes, requires that penal statutes be strictly construed, with
ambiguity resolved in the manner most favorable to the accused.
However, “[t]his rule of lenity is a canon of last resort and only
applies if the statute re...
CopyPublished | Florida 2nd District Court of Appeal | 14 Fla. L. Weekly 1953, 1989 Fla. App. LEXIS 4652, 1989 WL 95290
...State,
546 So.2d 441 (Fla. 2d DCA 1989), and concluded, on the authority of Carawan v. State,
515 So.2d 161 (Fla.1987), that the conviction for grand theft, which is a lesser included offense of armed robbery, could not stand. Although Carawan has been superseded by section
775.021(4)(b), Florida Statutes (1988 Supp.), we noted in Kelly that ex post facto considerations preclude retroactive application of the statute....
CopyPublished | Florida 6th District Court of Appeal
...2016).
“[W]hen criminal statutes are subject to competing, albeit reasonable,
interpretations, they must be ‘strictly construed . . . most favorably to
the accused.’” Polite v. State,
973 So. 2d 1107, 1111 (Fla. 2007)
(quoting §
775.021(1), Fla. Stat. (2002)). This extremely important
statutory canon is codified in section
775.021(1), Florida Statutes
(2012), which provides that, “[t]he provisions of this code and offenses
defined by other statutes shall be strictly construed; when the language
775.022(5)....
...independent of the definition of the crime and its elements in section
790.01(3), (4).
See supra Section II.C., Section III.A.
24
is susceptible of differing constructions, it shall be construed most
favorably to the accused.” §
775.021(1), Fla....
...2008)).
Here, section
775.022(5)’s undefined terms (e.g., “any” and “defense”),
defined term (i.e., “criminal statute”), and disputed phrase (“any defense to a
criminal statute enacted or amended by the Legislature”) must be interpreted “most
favorably” to Herard. §
775.021(1), Fla....
...the day, and the trial court properly dismissed the information against Herard.
For all the foregoing reasons, I would affirm the trial court’s order granting
the motion to dismiss.
_________________________________
8
Section 775.021(1) has remained unchanged.
25
James Uthmeier, Attorney General, Tallahassee, and Richard A....
CopyPublished | Florida 5th District Court of Appeal
offenses, violence, or crimes against minors. Id. §
775.21(3)(a). They are subject to enhanced registration
CopyPublished | Florida 5th District Court of Appeal | 2008 WL 3539478
"raises a due process claim." We again disagree. Section
775.21 of the Florida Statutes (2007) sets forth the
CopyPublished | Florida 2nd District Court of Appeal
...convictions for first-degree felony murder and aggravated battery based on a single
criminal act violate double jeopardy under the merger doctrine. See also Williams v.
State,
90 So. 3d 931, 934 (Fla. 1st DCA 2012) ("The Florida Supreme Court has held
that section
775.021, Florida Statutes, does not abrogate the merger principle, which
prohibits multiple punishments for a single killing." (citing Goodwin v....
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 7929, 1991 WL 154758
...We order that the fine be set at $5,000 with the appropriate five per cent surcharge. See §
775.0835, Fla.Stat. (1989). We find all other issues defendant raises including his double jeopardy argument not to merit discussion. See State v. Smith,
547 So.2d 613 (Fla.1989); §
775.021(4)(a), Fla.Stat....
CopyPublished | Florida 2nd District Court of Appeal | 1990 Fla. App. LEXIS 6246, 1990 WL 115512
...ion of cocaine with intent to sell. State v. McCloud,
559 So.2d 1305 (Fla. 2d DCA 1990). Our construction of section 893.-13(l)(a) to the effect that sale and possession with intent to sell is but one offense is not affected by the 1988 amendment to section
775.021, Florida Statutes, adding subsection 4(b)....
...ce: WHEN A DOUBLE JEOPARDY VIOLATION IS ALLEGED BASED ON THE CRIMES OF SALE AND POSSESSION (OR POSSESSION WITH INTENT TO SELL) OF THE SAME QUANTUM OF CONTRABAND IN VIOLATION OF SECTION
893.13(1)(A) AND THE CRIMES OCCURRED AFTER THE EFFECTIVE DATE OF SECTION
775.021, FLORIDA STATUTES (SUPP....
CopyPublished | Florida 4th District Court of Appeal
...sent a
clearly expressed contrary legislative intent. Burris v. State,
825 So. 2d 1034, 1036 (Fla. 5th DCA 2002), citing Russello v.
United States,
464 U.S. 16, 20,
104 S. Ct. 296,
78 L. Ed. 2d
17 (1983). Also, as required by section
775.021(1), Florida
Statutes (2000), a strict construction must be accorded a
penal statute, and when the language of the statute is
susceptible of more than one construction, it is to be
construed in a manner favorable to the accused....
CopyPublished | Florida 3rd District Court of Appeal
that Alvarez is a sexual predator pursuant to section
775.21, Florida Statutes (2015). We affirm.
CopyPublished | Florida 5th District Court of Appeal | 2012 WL 3235209, 2012 Fla. App. LEXIS 13362
...ations, and whether there has been a ‘temporal break’ between the offenses.” Staley v. State,
829 So.2d 400, 401 (Fla. 2d DCA 2002). In its brief, the State concedes the batteries occurred during the same criminal transaction. Next, we look to section
775.021(4)(a), Florida Statutes (2011), to determine whether separate sentences are authorized for each of the battery convictions....
...ces 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. § 775.021(4)(a), Fla....
...ions applies: 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. § 775.021(4)(b), Fla....
CopyPublished | Florida 3rd District Court of Appeal | 14 Fla. L. Weekly 1813, 1989 Fla. App. LEXIS 4294, 1989 WL 85278
...The offense involved here occurred on May 1, 1987. Consequently, as stated in Jones v. State,
546 So.2d 126 (Fla. 3d DCA 1989), “[T]his result is compelled by Carawan v. State,
515 So.2d 161 (Fla.1987), and is not affected by ch. 88-131, § 7, Laws of Fla., the amendment to section
775.021(4), Florida Statutes (1987) which became effective July 1, 1988....
CopyPublished | Supreme Court of Florida | 2016 WL 1375712
(Failure to Provide Required Information) §
775.21(6)(a)l., Fla. Stat. To prove the crime of
CopyPublished | Florida 4th District Court of Appeal | 1993 Fla. App. LEXIS 4327, 1993 WL 100140
...State,
587 So.2d 1148 (Fla. 4th DCA 1991). We find error only as to one sentencing issue. Appellant should not have been convicted of both reckless driving and vehicular homicide. Cf. Carawan v. State,
515 So.2d 161 (Fla.1987), superseded in part by the 1988 amendment to section
775.021(4) of the Florida Statutes; State v....
CopyPublished | Florida 5th District Court of Appeal
not resort to an analysis of the factors in section
775.021(4), Florida Statutes, commonly referred to
CopyPublished | Florida 5th District Court of Appeal
not resort to an analysis of the factors in section
775.021(4), Florida Statutes, commonly referred to
CopyPublished | Florida 2nd District Court of Appeal
...Because [Buggs] was sentenced to fifty-eight (58) months' prison followed by one (1) year probation, his sentence does not exceed the statutory maximum as allowed by law and conforms to Florida's established law regarding sentencing where multiple counts in a single information are facets of the same transaction. However, section 775.021(4), which was amended in 1988 by adding subsection (4)(b), see ch....
...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. § 775.021(4)(a), (b) (emphasis added)....
...1991), the supreme court held that the same analysis set forth in McCloud applied to Davis's convictions and sentences for the delivery and possession of a controlled substance. The cases relied upon by the trial court predate the 1988 amendment to section 775.021(4) and have no bearing on this case. 3 Pursuant to section 775.021(4) and McCloud and its progeny, Buggs was properly sentenced separately for the possession of cocaine conviction....
CopyPublished | Florida 2nd District Court of Appeal
...Because [Buggs] was sentenced to fifty-eight (58) months' prison followed by one (1) year probation, his sentence does not exceed the statutory maximum as allowed by law and conforms to Florida's established law regarding sentencing where multiple counts in a single information are facets of the same transaction. However, section 775.021(4), which was amended in 1988 by adding subsection (4)(b), see ch....
...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. § 775.021(4)(a), (b) (emphasis added)....
...1991), the supreme court held that the same analysis set forth in McCloud applied to Davis's convictions and sentences for the delivery and possession of a controlled substance. The cases relied upon by the trial court predate the 1988 amendment to section 775.021(4) and have no bearing on this case. 3 Pursuant to section 775.021(4) and McCloud and its progeny, Buggs was properly sentenced separately for the possession of cocaine conviction....
CopyPublished | Florida 2nd District Court of Appeal
...s not exceed the statutory
maximum as allowed by law and conforms to Florida's
established law regarding sentencing where multiple counts
in a single information are facets of the same transaction.
However, section 775.021(4), which was amended in 1988 by adding subsection (4)(b),
see ch....
...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.
§ 775.021(4)(a), (b) (emphasis added).
In State v....
...1991), the supreme court held
that the same analysis set forth in McCloud applied to Davis's convictions and
sentences for the delivery and possession of a controlled substance.
The cases relied upon by the trial court predate the 1988 amendment to
section 775.021(4) and have no bearing on this case.3 Pursuant to section 775.021(4)
and McCloud and its progeny, Buggs was properly sentenced separately for the
3And even had the trial court been correct in concluding that "only one
sentence may be imposed" in this case, the appropriate course o...
CopyPublished | Florida 1st District Court of Appeal | 1991 Fla. App. LEXIS 3072, 1991 WL 46855
PER CURIAM. Appellant’s convictions for aggravated assault and shooting into an occupied vehicle are affirmed. See § 775.021(4), Fla....
CopyPublished | Florida 2nd District Court of Appeal | 1991 Fla. App. LEXIS 4023, 1991 WL 76531
...The state contends that although this court correctly affirmed Kel-lam’s and Jackson’s separate convictions and sentences for sale or delivery of cocaine and possession of cocaine, we should rehear the case because we “did not resort to amended section 775.021(4)” in reaching our decision, and because conflict no longer exists between our decision and V.A.A....
...In V.A.A. and McCloud, the supreme court held that a defendant may properly be convicted and sentenced for both sale and possession (or possession with intent to sell) of the same quantum of contraband where the crimes occurred after the effective date of section 775.021, Florida Statutes (Supp.1988). The court concluded that possession of contraband is not a lesser-included offense of the crime of sale of contraband, and therefore dual convictions and sentences for both offenses based on one *244 act are proper under section 775.021(4)(b). Because the supreme court reached its conclusion in V.A.A. and McCloud by applying section 775.021(4) to the offenses and disposed of the need for an answer to our certified question, the opinion filed March 1, 1991, is withdrawn and appellants’ convictions for sale or delivery of cocaine and possession of cocaine are affirmed on the authority of State v....
CopyPublished | Florida 2nd District Court of Appeal
has codified the double jeopardy bar within section
775.021(4)(a)-(b), Florida Statutes (2015).” McCullough
CopyPublished | Florida 2nd District Court of Appeal | 2004 Fla. App. LEXIS 5836, 2004 WL 892637
...State,
564 So.2d 519, 521 (Fla. 2d DCA 1990), disapproved of on other grounds, Novaton v. State,
634 So.2d 607 (Fla.1994), “trial courts are not permitted to enter an adjudication of guilt for an offense when a sentence could not legally *705 be imposed under section
775.021(4), Florida Statutes (Supp.1988), for that same offense.” Accordingly, we affirm the convictions and sentences on counts one and two and reverse the conviction on count three with directions that the judgment on count three be vacated....
CopyPublished | Florida 4th District Court of Appeal | 14 Fla. L. Weekly 1029, 1989 Fla. App. LEXIS 2245, 1989 WL 39580
...The two convictions constitute dual punishment for one single act. 1 See Hall v. State,
517 So.2d 678 (Fla.1988); Carawan v. State,
515 So.2d 161 (Fla.1987). *293 AFFIRMED IN PART; REVERSED IN PART; AND REMANDED FOR RESEN-TENCING. ANSTEAD and LETTS, JJ., concur. . The crimes predated the 1988 amendment to section
775.021(4)(a), Florida Statutes (Supp.1988).
CopyPublished | District Court of Appeal of Florida | 1995 Fla. App. LEXIS 4215, 1995 WL 234692
...The trial court denied this claim of error without making a factual determination regarding whether the offenses for which Love was convicted arose in the course of a single criminal episode. The court accepted as true appellant’s factual allegation, but cited section
775.021(4), Florida Statutes (1993), for the proposition that a criminal defendant who, in the course of a single criminal episode, “commits an act or acts constituting one or more separate criminal offenses, upon conviction and adjudication of guilt, will be sentenced separately for each criminal offense, and the sentencing judge may order the sentences to be served concurrently or consecutively.” In Hale , however, the supreme court held that section
775.021, Florida Statutes, does not apply to the imposition of consecutive minimum mandatory sentences which are authorized for enhancement of habitual offender sentences under section
775.084(4)(b), Florida Statutes (1993)....
CopyPublished | Florida 3rd District Court of Appeal | 1991 Fla. App. LEXIS 3642, 1991 WL 60844
...Steven Williams appeals his convictions for aggravated assault with a firearm and possession of a firearm while engaged in a criminal offense. He contends that the two convictions impermissibly impose dual punishment for a single act. We conclude that the convictions are proper under section 775.021, Florida Statutes (1989) and the pre-Carawan * case of Reynolds v....
CopyPublished | Florida 5th District Court of Appeal | 2005 Fla. App. LEXIS 5568, 2005 WL 925608
...nd aggravated battery causing great bodily harm 2 for a single act of shooting the victim. Mr. Bradley asserts that the dual convictions and sentences violated the double jeopardy clauses of the state and federal constitutions. Using the analysis of section 775.021(4)(a), Florida Statutes (2004), and Blockburger v....
CopyPublished | Florida 1st District Court of Appeal
also designated a sexual predator pursuant to section
775.21(4)(a)1.b. On appeal, after his appointed counsel
CopyPublished | Florida 3rd District Court of Appeal | 2016 Fla. App. LEXIS 5973
...view of the trial court’s September
2
v. State,
905 So. 2d 160 (Fla. 3d DCA 2005); State v. Reardon,
763 So. 2d 418
(Fla. 5th DCA 2000); Washington v. State,
752 So. 2d 16 (Fla. 2d DCA 2000).
See also §
775.021(4)(a)-(b), Fla. Stat. (1995); Roughton v. State, 41 Fla. L.
Weekly S70 at *4 (Fla. February 25, 2016) (receding from Gibbs v. State,
698 So.
2d 1206 (Fla. 1997) and holding that “a double jeopardy analysis must—in
accordance with section
775.021(4)—be conducted without regard to the
accusatory pleading or the proof adduced at trial, even where an alternative
conduct statute is implicated.”)
16, 2015 order denying relief, and the trial court’s January 22, 2016 amen...
CopyPublished | Florida 4th District Court of Appeal | 2016 WL 1579077, 2016 Fla. App. LEXIS 5994
...endez v. State,
28 So. 3d 948, 950
(Fla. 2d DCA 2010). Thus, although appellant did not object to the
sentence at the time it was imposed, he may still raise this argument on
appeal.
1Blockburger v. United States,
284 U.S. 299 (1932) (codified in §
775.021(4), Fla.
Stat....
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 3621, 1991 WL 61782
...The Supreme Court of Florida recently held, in answer to a certified question, that a double jeopardy violation does not occur upon conviction for the crimes of sale and possession (or possession with intent to sell) of the same quantum of contraband, when the crimes occurred after the effective date of section 775.021, Florida Statutes (Supp.1988)....
CopyPublished | Florida 2nd District Court of Appeal | 2009 Fla. App. LEXIS 3208, 2009 WL 996815
...e charged crime, before the information is filed for the charged crime, or before the juvenile is sentenced for the charged crime. Because this statutory language is ambiguous, it must be interpreted in the manner most favorable to the juvenile. See § 775.021(1) (holding that penal statutes “shall be strictly construed” but that any ambiguities “shall be construed most favorably to the accused”); see also State v....
CopyPublished | Florida 5th District Court of Appeal
...Id.
The Court found that Hallberg’s status as a teacher was insufficient to
establish custodial authority when the liaisons “were so far removed from
both the time and place of his responsibilities as a teacher,” particularly when
employing a strict construction of “custodial authority” as required by section
775.021(1)....
...“According to the rules of statutory construction, this
means that penal statutes should be strictly construed, and ‘when the
language is susceptible of differing constructions, it shall be construed most
favorably to the accused.’” Id. (citing § 775.021, Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2012 Fla. App. LEXIS 5650, 2012 WL 1232006
...s to the probation conditions. D.F. appeals. Condition nine required D.F. to complete the service hours by March 31, 2010, and to provide written proof. However, condition nine did not specify a date by which D.F. must provide the documentation. See § 775.021(1), Fla....
CopyPublished | Florida 5th District Court of Appeal | 2006 Fla. App. LEXIS 5451
..., where fight occurred before school hours and no school activity or function was taking place at location of fight). This interpretation would be consistent with the notion that criminal statutes are to be strictly construed in favor of an accused. § 775.021, Fla....
CopyPublished | District Court of Appeal of Florida | 14 Fla. L. Weekly 925, 1989 Fla. App. LEXIS 1945, 1989 WL 33956
...unt, to run concurrently. Thus, the sentence exceeds the maximum sentence allowed by law and requires that appellant be resen-tenced. We find no problem with two convictions and sentences in this case because the crime predated the 1988 amendment to section 775.021(4)(a), Florida Statutes (Supp.1988), and thus Carawan v....
CopyPublished | Florida 4th District Court of Appeal
...st, with
three exceptions: offenses requiring identical elements of proof,
offenses which are degrees of the same offense as provided by
statute, and lesser offenses which have elements wholly subsumed
by the greater offense. §
775.021(4)(b), Fla. Stat.
Pizzo v. State,
945 So. 2d 1203, 1206 (Fla. 2006). Specifically, section
775.021,
“Rules of construction,” provides in relevant part:
(4)(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 con...
...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.
§ 775.021(4), Fla....
...3 The cases relied upon by the defense
to argue that degrees of the same offense may arise from different statutes are
unpersuasive because they predate the Valdes case, which limits the degree
variant exception to offenses arising from the same statute. See Brown v. State,
189 So. 3d 837, 840 (Fla. 4th DCA 2015). Section
775.021(4) expressly states
an inherent desire to punish under separate statutory schemes unless otherwise
so defined....
...death, serious personal
disfigurement, or protracted loss or impairment of the
function of any bodily member or organ.
§
316.192, Fla. Stat. (2014).
In looking at the statutory construction in line with section
775.021(4), to
allow convictions for both the serious bodily injury and the property damage of
the victim would run afoul of double jeopardy principles....
CopyPublished | Florida 4th District Court of Appeal | 1990 Fla. App. LEXIS 2364, 1990 WL 41530
...Smith,
547 So.2d 613 (Fla.1989). 3 We remand for resentencing consistent with this opinion. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED FOR RESEN-TENCING. GLICKSTEIN, DELL and GARRETT, JJ., concur. . The information erroneously cited section
893.13(l)(e). . Section
775.021(4)(a), Florida Statutes (Supp....
CopyPublished | Supreme Court of Florida | 39 Fla. L. Weekly Supp. 209, 2014 WL 1408556, 2014 Fla. LEXIS 1208
...Paul,
934 So. 2d 1167, 1171 (Fla. 2006),
receded from on other grounds by Valdes,
3 So. 3d at 1077. Where multiple
criminal offenses occur in the course of a single criminal episode or transaction,
courts employ the Blockburger 6 test, codified at section
775.021(4)(a), Florida
Statutes (2006), to determine whether receiving separate punishments for each
offense violates double jeopardy....
