Supreme Court of Florida





____________




No. SC07-2256


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ELI ENRIQUE VALDES,


Petitioner,



vs.




STATE OF FLORIDA,


Respondent.



[January 30, 2009]



PARIENTE, J.



The issue before us involves double jeopardy--specifically whether dual convictions for discharging a firearm from a vehicle within 1000 feet of a person in violation of section 790.15(2), Florida Statutes (2003), and shooting into an occupied vehicle in violation of section 790.19, Florida Statutes (2003), arising from the same criminal episode, violate double jeopardy. The Third District Court of Appeal in Valdes v. State, 970 So. 2d 414 (Fla. 3d DCA 2007), concluded that no double jeopardy violation occurred from the dual convictions and certified conflict with Lopez-Vazquez v. State, 931 So. 2d 231 (Fla. 5th DCA 2006), which

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reached the opposite conclusion. We have jurisdiction. See art. V, § 3(b)(4), Fla.


Const.


We reach two related conclusions in this case. First, because we conclude that our prior double jeopardy jurisprudence announcing the "primary evil" 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). Second, by applying this simple test to this case we conclude that dual convictions under 790.15(2) and section 790.19 do not violate the prohibition against double jeopardy. Accordingly, we approve the result in Valdes and disapprove Lopez-Vazquez.



FACTS




Valdes, who was driving his own vehicle, pulled up next to a vehicle being driven by Rocio Rodriguez, in which her sister, Natalie Gianella, and Rodriguez's minor daughter were passengers. Gianella, Rodriguez, and Valdes knew each other and had previous disputes. Valdes rolled down his window, as did Gianella, and the two began arguing. Valdes pulled out a gun, and Gianella began laughing







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at him. When the light turned green and the vehicle started to move, Valdes began shooting at the vehicle, firing four or five shots. Gianella was struck in the arm and foot. Valdes was charged with three counts of attempted second-degree murder with a firearm and one count each of discharging a firearm from a vehicle within 1000 feet of a person in violation of section 790.15(2), Florida Statutes (2003), and shooting into an occupied vehicle in violation of section 790.19, Florida Statutes (2003).1 The jury found Valdes guilty as charged on all counts and he was sentenced to concurrent thirty-year prison terms on each count.




On appeal to the Third District, Valdes argued in pertinent part that his dual convictions for discharging 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 Blockburger2 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).


The court acknowledged the decision of the Fifth District Court of Appeal in












1. Valdes was also charged with possession of a firearm by a convicted felon, but that count was severed from the other offenses.








2.



Blockburger v. United States, 284 U.S. 299 (1932).








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Lopez-Vazquez, in which the Fifth District concluded that convictions under sections 790.15(2) and 790.19, arising from the same criminal episode, violate double jeopardy. Valdes, 970 So. 2d at 419.


In the conflict case of Lopez-Vazquez, the Fifth District described these facts: "[A]n incident of road rage escalated into extreme acts of violence, culminating in the attempt by Vazquez to take the life of the victim. As Vazquez sat in his vehicle, he fired his weapon into the vehicle occupied by the victim, wounding the victim in the arm." 931 So. 2d at 232. The Fifth District concluded that the offenses of discharging a firearm from a vehicle within 1000 feet of a person in violation of section 790.15(2) and shooting into an occupied vehicle in violation of section 790.19 shared the same core offense of battery. Id. at 235.


The Third District disagreed not only with this conclusion but also with the Fifth District's conclusion that the primary evil punished by the two statutes in question "`is the endangerment of the safety of those who may be struck by the discharge from the firearm,' and that both of these offenses share the same evil." Valdes, 970 So. 2d at 419 (citation omitted). These diametrically opposed decisions applying the same precedent give rise to the certified conflict in this case.3


ANALYSIS



















3. Valdes does not challenge his convictions for attempted second-degree murder in this appeal.








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Double Jeopardy Principles


The most familiar concept of the term "double jeopardy" is that the Constitution prohibits subjecting a person to multiple prosecutions, convictions, and punishments for the same criminal offense. The constitutional protection against double jeopardy is found in both article I, section 9, of the Florida Constitution and the Fifth Amendment to the United States Constitution, which contain double jeopardy clauses.4 Despite this constitutional protection, there is no constitutional prohibition against multiple punishments for different offenses arising out of the same criminal transaction as long as the Legislature intends to authorize separate punishments. See Hayes v. State, 803 So. 2d 695, 699 (Fla. 2001) ("As the United States Supreme Court explained in Brown v. Ohio, 432 U.S. at 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), where multiple punishments are imposed at a single trial, `the role of the constitutional guarantee against double jeopardy is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments arising from a single criminal act.'"); Borges v. State, 415 So. 2d 1265, 1267 (Fla. 1982) ("The Double Jeopardy Clause `presents no substantive limitation on the legislature's power to prescribe












4. Article 1, section 9, of the Florida Constitution provides in pertinent part:


"No person shall ... be twice put in jeopardy for the same offense." Art. I, § 9, Fla.


Const. Similarly, the Fifth Amendment to the United States Constitution provides that no person shall be "subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V.








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multiple punishments,' 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)). As we recognized in Gordon v. State, 780 So. 2d 17 (Fla. 2001):


The prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal transaction is whether the Legislature "intended to authorize separate punishments for the two crimes." M.P. v. State, 682 So. 2d 79, 81 (Fla. 1996); see State v. 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 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) . . . is the sole method of determining whether multiple punishments are double-jeopardy violations.") (footnote omitted).



Gordon, 780 So. 2d at 19-20 (footnote omitted).




In this case there is no clear statement of legislative intent to authorize or to prohibit separate punishments for violations of sections 790.15(2) and 790.19.5











5. Section 790.15 provides in pertinent part:






790.15 Discharging firearm in public.--




(1) Except as provided in subsection (2) or subsection (3), any person who knowingly discharges a firearm in any public place or on the right-of-way of any paved public road, highway, or







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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). That section 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





street or whosoever knowingly discharges any firearm over the right-of-way of any paved public road, highway, or street or over any occupied premises is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. . . .



(2) Any occupant of any vehicle who knowingly and willfully discharges any firearm from the vehicle within 1,000 feet of any person commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.


§ 790.15, Fla. Stat. (2003). 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.--


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 private building, occupied or unoccupied, or public or private bus or any train, locomotive, railway car, caboose, cable railway car, street railway car, monorail car, or vehicle of any kind which is being used or occupied by any person, . . . shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s.



775.083, or 775.084.


§ 790.19, Fla. Stat. (2003).








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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.




(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. 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. (2003).


It is undisputed that sections 790.15(2) and 790.19 each contain an element that the other does not. Shooting from a vehicle in violation of section 790.15(2) requires proof of two elements: (1) the defendant knowingly and willfully discharged a firearm from a vehicle; and (2) the discharge occurred within 1000 feet of any person. § 790.15(2), Fla. Stat. (2003). In contrast, section 790.19 requires proof of the following three elements: (1) the defendant shot a firearm; (2) he or she did so at, within, or into a vehicle of any kind that 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).








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There is likewise no dispute that the first and third exceptions under subsection (4)(b) do not apply to the offenses at issue; the offenses do not require identical elements of proof and the offenses are not lesser offenses the statutory elements of which are subsumed by the greater offense. The focus in this case, as in many other recent cases from this Court, is subsection (4)(b)(2)--whether the offenses "are degrees of the same offense as provided by statute." We now answer that question 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. See Carawan v. State, 515 So. 2d 161, 164-68 (Fla. 1987), superseded by statute, ch. 88-131, § 7, Laws of Fla. In an attempt to alleviate some of the confusion, we set forth rules of construction to address the issue of whether a single act could be the basis for multiple convictions:


The first is that "specific, clear and precise statements of legislative intent control" and "courts 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







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775.021(4),[6] codifying Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 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.4] We recognized that application of the rule of lenity in subsection (1) might lead to a result contrary to that obtained by applying the statutory elements test of the offenses per subsection (4). We opined that the two rules only come into play when there is no specific statement of legislative intent in the criminal offense statute itself, i.e., when 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).











6. At the time, section 775.021(4) provided only:


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.




§ 775.021(4), Fla. Stat. (1987).










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[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: