548 So. 2d 755 - Smith v. State

COWART, Judge,

¶1dissenting.

¶2At one place the defendant pointed one gun one time at one person. Based on this one nuclear indivisible act, the defendant was convicted and sentenced for two offenses: (1) aggravated assault with a firearm (§ 784.021(l)(a), Fla.Stat.) and (2) the use of a firearm in the commission of a felony [to-wit: aggravated assault] (§ 790.-07(2), Fla.Stat.)

¶3The defendant’s conviction for the ancillary1 offense of use of a firearm in the commission of a felony (§ 790.07(2), Fla. Stat.) should be reversed because the factual basis for that conviction in this case is but one facet or definable aspect of a single factual event (one nuclear act — not some combination of acts called a transaction or episode) which single act was also the entire factual basis for the defendant’s conviction for the primary underlying offense of aggravated assault with a firearm (§ 784.021(l)(a), Fla.Stat.). Multiple criminal convictions based on charging a single nuclear act as violations of two or more *759statutory offenses which are not substantively different violate the double jeopardy clause contained in Article 1, Section 9, of the Constitution of the State of Florida. The proper authority for the reversal as to the firearms offense conviction in this case is the above constitutional double jeopardy principle as applied in the following 70 cases, all of which reverse convictions for the ancillary weapons or firearms offense (§ 790.07(1) or (2), Fla.Stat.) when the defendant was also convicted of the necessary underlying “primary” felony offense to which the weapons or firearms offense was ancillary:

¶4SUPREME COURT:

¶5Hall v. State, 517 So.2d 678 (Fla.1988).

¶6FIFTH DISTRICT COURT OF APPEAL:2

¶7Kelly v. State, 14 F.L.W. 1678 (Fla. 5th DCA July 13, 1989); Curry v. State, 539 So.2d 573 (Fla. 5th DCA 1989); Brown v. State, 538 So.2d 116 (Fla. 5th DCA 1989), rev. denied, 545 So.2d 1366 (Fla.1989); Crayton v. State, 536 So.2d 399 (Fla. 5th DCA 1989); Willingham v. State, 535 So.2d 718 (Fla. 5th DCA 1989); Neal v. State, 527 So.2d 966 (Fla. 5th DCA 1988); Cardwell v. State, 525 So.2d 1025 (Fla. 5th DCA 1988); Wright v. State, 519 So.2d 1157 (Fla. 5th DCA 1988).

¶8FIRST DISTRICT COURT OF APPEAL:3

¶9Hammonds v. State, 14 F.L.W. 1793 (Fla. 1st DCA Aug. 2, 1989; Musico v. State, 545 So.2d 964 (Fla. 1st DCA 1989); Grantham v. State, 545 So.2d 945 (Fla. 1st DCA 1989); Vance v. State, 545 So.2d 398 (Fla. 1st DCA 1989); Kelley v. State, 543 So.2d 286 (Fla. 1st DCA 1989); Payne v. State, 538 So.2d 1302 (Fla. 1st DCA 1989), jurisdiction accepted, 544 So.2d 201 (Fla.1989); Ellison v. State, 538 So.2d 90 (Fla. 1st DCA 1989); Denmark v. State, 538 So.2d 68 (Fla. 1st DCA 1989), rehearing denied, 544 So.2d 266 (Fla. 1st DCA 1989); Heath v. State, 532 So.2d 9 (Fla. 1st DCA 1988), rev. denied, 541 So.2d 1173 (Fla.1989); Hartley v. State, 531 So.2d 990 (Fla. 1st DCA 1988); Neal v. State, 531 So.2d 410 (Fla. 1st DCA 1988); Rose v. State, 530 So.2d 401 (Fla. 1st DCA 1988); Hogan v. State, 529 So.2d 1127 (Fla. 1st DCA 1988); Middleton v. State, 529 So.2d 357 (Fla. 1st DCA 1988), cause dismissed, 534 So.2d 401 (Fla.1988); Payne v. State, 528 So.2d 546 (Fla. 1st DCA 1988); Larry v. State, 527 So.2d 883 (Fla. 1st DCA 1988); Bradshaw v. State, 528 So.2d 473 (Fla. 1st DCA 1988); Burgess v. State, 524 So.2d 1132 (Fla. 1st DCA 1988); Cooper v. State, 524 So.2d 738 (Fla. 1st DCA 1988); McKinnon v. State, 523 So.2d 1238 (Fla. 1st DCA 1988), quashed, 540 So.2d 111 (Fla.1989).

¶10SECOND DISTRICT COURT OF APPEAL:

¶11Emmons v. State, 546 So.2d 69 (Fla. 2d DCA 1989); Green v. State, 545 So.2d 359 (Fla. 2d DCA 1989); Marion v. State, 526 So.2d 1077 (Fla. 2d DCA 1988).

¶12THIRD DISTRICT COURT OF APPEAL:

¶13Dixon v. State, 546 So.2d 1194 (Fla. 3d DCA 1989); Ambroa v. State, 547 So.2d 294 (Fla. 3d DCA 1989); Sands v. State, 547 So.2d 293 (Fla. 3d DCA 1989); State v. Finney, 550 So.2d 1141 (Fla. 3d DCA 1989); Joseph v. State, 547 So.2d 249 (Fla. 3d DCA 1989); Jones v. State, 546 So.2d 126 (Fla. 3d DCA 1989); Holsey v. State, 544 So.2d 342 (Fla. 3d DCA 1989); Gonzalez v. State, 543 So.2d 386 (Fla. 2d DCA 1989); Morales v. State, 541 So.2d 1289 (Fla. 3d DCA 1989); Anderson v. State, 541 So.2d 797 (Fla. 3d DCA 1989); Mozqueda v. State, 541 So.2d 777 (Fla. 3d DCA 1989); Ahlberg v. State, 541 So.2d 775 (Fla. 3d DCA 1989); Dowding v. State, 541 So.2d 771 (Fla. 3d DCA 1989); Barnes v. State, 541 So.2d 166 (Fla. 3d DCA 1989); Tundidor v. State, 541 So.2d 165 (Fla. 3d DCA 1989); Bouie v. *760State, 540 So.2d 925 (Fla. 3d DCA 1989); Sarduy v. State, 540 So.2d 203 (Fla. 3d DCA 1989); Smith v. State, 539 So.2d 601 (Fla. 3d DCA 1989); Williams v. State, 539 So.2d 35 (Fla. 3d DCA 1989); Jean v. State, 538 So.2d 153 (Fla. 3d DCA 1989); Hurd v. State, 536 So.2d 361 (Fla. 3d DCA 1988); Pastor v. State, 536 So.2d 356 (Fla. 3d DCA 1988), jurisdiction accepted, 545 So.2d 869 (Fla.1989); Viera v. State, 532 So.2d 743 (Fla. 3d DCA 1988), rev. denied, 542 So.2d 991 (Fla.1989); Anderson v. State, 530 So.2d 1104 (Fla. 3d DCA 1988); Monsanto v. State, 530 So.2d 952 (Fla. 3d DCA 1988); Perez v. State, 528 So.2d 129 (Fla. 3d DCA 1988); Evans v. State, 528 So.2d 125 (Fla. 3d DCA 1988); Torres v. State, 527 So.2d 272 (Fla. 3d DCA 1988), rev. denied, 536 So.2d 246 (Fla.1988); Henderson v. State, 526 So.2d 743 (Fla. 3d DCA 1988).

¶14FOURTH DISTRICT COURT OF APPEAL:

¶15Higgins v. State, 545 So.2d 973 (Fla. 4th DCA 1989); Williams v. State, 546 So.2d 1120 (Fla. 4th DCA 1989); Gunn v. State, 546 So.2d 115 (Fla. 4th DCA 1989); Wright v. State, 546 So.2d 96 (Fla. 4th DCA 1989); Mitchell v. State, 543 So.2d 292 (Fla. 4th DCA 1989); Peterson v. State, 542 So.2d 417 (Fla. 4th DCA 1989); Cherry v. State, 540 So.2d 146 (Fla. 4th DCA 1989); Prescott v. State, 529 So.2d 302 (Fla. 4th DCA 1988); Sapp v. State, 522 So.2d 1006 (Fla. 4th DCA 1988).

¶16Reaching the conclusion that the defendant in this case cannot be convicted of both the underlying felony offense of aggravated assault with a firearm (§ 784.-021(l)(a), Fla.Stat.) and the ancillary firearms offense (§ 790.07(2), Fla.Stat.), the majority opinion, citing State v. Barton, 523 So.2d 152 (Fla.1988) elects to vacate the underlying offense of aggravated assault rather than the firearms offense because the statutory punishment for the firearms offense is a second degree felony subject to 15 years imprisonment and the statutory punishment for aggravated assault is a third degree felony subject to five years imprisonment. Certainly in a regular case where for any reason one of two otherwise valid convictions must be vacated, and there is no significant substantive relationship between the two offenses underlying the two convictions, and one conviction is subject to more punishment than the other, the one with the less punishment should be vacated, as Bartonholds. However, when the substantive nature and character of two criminal offenses are being compared for double jeopardy, due process, or other analytical purposes, the quantity or quality of punishment provided by the legislature for violation of the particular criminal offense does not determine the substantive nature or character of either offense nor does it determine the innate relationship between two offenses. This is another of those difficult substantive versus form legal problems in law and the nature and character of a criminal offense and its true relationship to another offense must be considered a matter of substance and not form; otherwise there will be no certainty in the law because form, as distinguished from substance, can be manipulated to achieve a result. The substantive nature and character of a criminal offense is always determined by analysis of its constituent elements and not by reference to, or analysis of, the punishment that the legislature provides for each offense. This is true as to the lesser-greater offense concept in each of the several different contexts in which that lesser-greater concept is used. See notes 1 and 5 herein. It must also be true as to fundamental organic legal rights.

¶17If the legislature made petit theft a first degree felony punishable by thirty years confinement under section 775.082(3)(b), Florida Statutes, and left the offense of grand theft a third degree felony punishable by five years confinement, petit theft would nevertheless in substance still be a lesser included offense of grand theft because grand theft includes all of the constituent elements of the offense of petit theft plus one or more additional elements relating to value or the character of the goods involved.

¶18There are many unclassified, uncharted, and little understood relationships between *761particular criminal offenses.4 Some criminal offenses have a completely independent relationship, some are mutually exclusive by necessity, whether that relationship is expressed by statute or not, some have a lesser-greater relationship, some have a causal relationship and some have dependent relationships. Because the weapon and firearm offenses in question (§ 790.07(1) & (2), Fla.Stat.) by their very definition, require the accomplishment of another underlying felony offense, the weapon and firearm offenses necessarily incorporate within themselves, as one composite element, all of the elements of the underlying felony offense plus an additional multi-faceted element: that while committing or attempting to commit the underlying felony, the perpetrator displays, uses, or threatens the use of a weapon or firearm (or carries a concealed firearm). This makes the weapon or firearm offense always ancillary to, and dependent upon, the underlying felony offense. This relationship caused the problem recognized and addressed, in Redondo v. State, 403 So.2d 954 (Fla.1981). As was aptly stated in State v. Wheeler, 468 So.2d 978 (Fla.1985), “a conviction on this charge [a firearms offense conviction under section 790.07(2), Florida Statutes] is parasitically linked to a conviction for the underlying felony.” (Emphasis added). For this reason, the common sense rule in Bartonthat when convictions for both of two offenses cannot stand, the offense subject to lesser punishment should be vacated, can not be mechanically applied when the substantive relationship between the two offenses dictates otherwise. In this case, it is the ancillary or parasitic firearms offense that should be vacated and not the assault offense. Vacating the necessarily underlying (host) offense rather than the ancillary (parasitic) offense, is not logical. If you cannot have an oak tree and mistletoe, you cannot kill the oak tree and save the mistletoe. In other words, when you cannot have both a conviction for an independent (or host) offense and a conviction for a parasitic offense, the evidence of which is dependent on the conviction for the independent offense, you can save the independent offense and vacate the dependent offense but you cannot logically vacate the independent offense and save the dependent offense.

¶19This is a classic aggravated assault case in which a defendant threatens another person with a deadly weapon. The punishment for the misdemeanor threat (assault) (§ 784.011, Fla.Stat.) has already been enhanced to third degree felony level (aggravated assault under section 784.021(l)(a), Florida Statutes) because of the use of a deadly weapon in the making of the threat. Surely the punishment for the same conduct was not intended to be once again enhanced for the same reason to a second degree felony because of section 790.07(2), Florida Statutes. If the legislature intended that result, then it could have simply made aggravated assault with a deadly weapon (§ 784.021(l)(a), Fla.Stat.) punishable as a second degree felony.5 Under the majority’s view of this common factual basis for an aggravated assault charge, the State has the charging choice of either charging the defendant with an aggravated assault under section 784.021(l)(a), Florida Statutes, a third degree felony, OR charging the defendant with the firearms offense under section 790.07(2), Florida Statutes, a second degree felony, OR charging and convicting the defendant for both, letting the trial or appellate court vacate one *762or the other of the two offenses. It does not appear reasonable to assume that the legislature intended to provide the State such an arbitrary opportunity to make an unequal application of the law. It should be held, as is the stated or unstated basis for the reversals of the weapon or firearm offenses involved in the cases cited above, that the weapon and firearm offenses described in sections 790.07(1) and (2), Florida Statutes, and their underlying offenses are in substance always “the same offense” and this is true whether or not the underlying offense also contains an element relating 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)l., 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 elements, is always completely included within the weapon or firearm 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 elements6 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.

¶20As the sentence in this case was based on a guidelines sentence scoresheet scoring both convictions, not only should the conviction for the ancillary firearms offense (§ 790.07(2), Fla.Stat.) be reversed but the sentence, based on guidelines scoring both offenses, should be vacated and the cause should be remanded for resentencing.

¶21. Although "ancillary” to the underlying "primary” felony, under proper legal analysis as to the substantive nature, character and relationship of criminal offenses, the firearms offense (§ 790.07(2)) necessarily incorporates by reference, all of the elements of the underlying "primary" offense to which the ancillary offense is appended; therefore, strange though it may at first appear, technically, the firearms offense always fully encompasses all of the elements of the underlying felony and, accordingly, analytically, the underlying felony offense is the “lesser” offense all of the elements of which are included in the firearms offense, which, again analytically, is the "greater" offense without regard to the relative punishment that may be directed for violation of each of the compared offenses. Distinguishing "lesser” and "greater” crimes for substantive analytical purposes, by reference to the punishment for each offense, rather than by comparing and contrasting the core elements of each offense, is simply erroneous. Jury verdict alternatives as to greater and lesser offenses should, of course, be submitted to the jury in order, with the greatest punishment first down to that with the least punishment last. This criminal trial practice and procedure problem has nothing to do with comparisons of the substantive nature of two offenses for double jeopardy purposes. As to ordering greater-lesser offenses for jury alternative purposes Ray v. State, 403 So.2d 956 (Fla.1981) is correct. See Brown v. State, 206 So.2d 377 (Fla.1968). See also note 46 page 62 in the dissent to Baker v. State, 425 So.2d 36 (Fla. 5th DCA 1982). State v. Gibson, 452 So.2d 553 (Fla.1984) held to the contrary but then Gibsonwas expressly overruled in Hall v. State, 517 So.2d 678 (Fla.1988). All of this shows a long running vexatious analysis involving the firearms offense under section 790.07(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. and 3. in that statute. See note 5 herein.

¶22. But see contra: Teemer v. State, 531 So.2d 748 (Fla. 5th DCA 1988); Clark v. State, 530 So.2d 519 (Fla. 5th DCA 1988).

¶23. But see: Harper v. State, 537 So.2d 1131 (Fla. 1st DCA 1989).

¶24. The substantive analysis of the relationship between certain offenses made by Justice Thor-nal in Brown v. State, 206 So.2d 377 (Fla.1968) has not yet been surpassed.

¶25. As has often been pointed out in the past, the vexatious legal problem in this case, the 68 cases cited above, hundreds of other cases and cases that will be considered in the future could be easily eliminated if the legislature would merely repeal section 790.07 which attempts to make the use of a weapon or firearm in the commission of a felony a separate criminal offense and make the "use of a weapon or firearm” as an aggravating factor to enhance the punishment for the underlying felony. See Bradley v. State, 540 So.2d 185, 186-187 (Fla. 5th DCA 1989); and the separate opinions in Flarity v. State, 527 So.2d 295, 298 (Fla. 5th DCA 1988); Bing v. State, 492 So.2d 833, 836 (Fla. 5th DCA 1986); Gotthardt v. State, 475 So.2d 281, 284 (Fla. 5th DCA 1985); O’Brien v. State, 454 So.2d 675, 679 (Fla. 5th DCA 1984).

¶26. It should be noted that by this language the legislature has adopted the concept that a "lesser" offense is one whose elements are all included in a "greater" offense, not that a “lesser" offense is one the punishment is lesser than the punishment for the "greater” offense.

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