Opinion
No. 92-2106.
October 1, 1993. Motion for Rehearing Denied and Certification of Question Granted November 12, 1993.
Appeal from the Circuit Court, Citrus County, John P. Thurman, J.
James B. Gibson, Public Defender, and Lyle Hitchens, Asst. Public Defender, Daytona Beach, for appellant.
Richard T. Stearns, Jr., pro se.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Robin Compton Jones, Asst. Atty. Gen., Daytona Beach, for appellee.
The defendant was charged with burglary of a structure while armed (§ 810.02(2), Fla. Stat. (1991)), grand theft (§ 812.014(2), Fla. Stat. (1991)), and carrying a concealed weapon while committing a felony, to wit: grand theft (§ 790.07(2), Fla. Stat. (1991)). Based upon the defendant's plea of guilty, the court adjudicated him guilty of all three charges and sentenced him. The public defender filed an Anders brief but this court ordered a supplemental brief because the record reveals a double jeopardy issue. See generally Johnson v. State, 460 So.2d 954 (Fla. 5th DCA 1984), aff'd, 483 So.2d 420 (Fla. 1986) (violation of double jeopardy rights constitutes fundamental error). That issue concerns whether a defendant, who commits an armed burglary of a structure and grand theft of property found therein, can also be convicted of carrying a concealed weapon while committing a felony. We answer this question in the negative.
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
Armed burglary, as contrasted with mere burglary, is, as defined in section 810.02(2), Florida Statutes, a continuing offense. See Williams v. State, 517 So.2d 681 (Fla. 1988); Jones v. State, 599 So.2d 741 (Fla. 3d DCA 1992). The state cannot, consistent with double jeopardy principles, charge, convict and sentence a defendant for two offenses for the single act of possession of one weapon. See generally Cleveland v. State, 587 So.2d 1145 (Fla. 1991). The conviction and sentence for carrying a concealed weapon while committing a felony are reversed. See also Brown v. State, 617 So.2d 744 (Fla. 1st DCA 1993) (defendant could not be convicted and sentenced for possession of firearm during commission of felony and armed robbery with a firearm arising out of the same criminal episode even though felony underlying possession charge was attempted first degree murder). The defendant's remaining convictions and sentences are affirmed.
AFFIRMED IN PART, REVERSED IN PART.
DIAMANTIS, J., concurs.
PETERSON, J., concurs in part, dissents in part, with opinion.
ON MOTION FOR REHEARING AND CERTIFICATION
We deny the state's motion for rehearing but agree to certification of the following question to the supreme court as one of great public importance:
WHETHER A DEFENDANT WHO, IN THE COURSE OF ONE CRIMINAL TRANSACTION OR EPISODE, COMMITS AND IS CONVICTED OF BURGLARY OF A STRUCTURE WHILE ARMED AND GRAND THEFT OF PROPERTY FOUND THEREIN MAY, CONSISTENT WITH DOUBLE JEOPARDY PRINCIPLES, ALSO BE CONVICTED OF CARRYING A CONCEALED WEAPON WHILE COMMITTING THE GRAND THEFT.
REHEARING DENIED; QUESTION CERTIFIED.
PETERSON and DIAMANTIS, JJ., concur.
I would affirm all three convictions and I respectfully dissent to the majority's reversal of the conviction for carrying a concealed weapon while committing a felony.
In Cleveland v. State, 587 So.2d 1145 (Fla. 1991), the supreme court held that a person cannot be convicted of both attempted robbery with a firearm and use of a firearm while committing a felony where the charges stem from a single act. In the instant case, Stearns was convicted of armed attempted burglary and carrying a concealed weapon while committing a felony. At first blush, the latter conviction would appear to be precluded by Cleveland. The instant case, however, involves a third charge, a factor not present in Cleveland. The convictions are proper because there are two underlying offenses, only one of which — the attempted burglary — was enhanced for use of a firearm. The separate charge of possession of a weapon was proper because it was made in connection with the unenhanced theft charge.
Another difference between Cleveland and the instant case is that the charges there arose out of a single act. Here, because Stearns committed two separate criminal acts — the attempted burglary and the theft — it was proper to enhance the burglary charge and, in a sense, also to enhance the theft charge by charging him with the separate weapons possession violation. In Perez v. State, 528 So.2d 129 (Fla. 3d DCA 1988), the defendant was convicted of possession of a firearm during the commission of a felony in addition to convictions for attempted murder and robbery, both of which were enhanced for use of a firearm. The court reversed the possession conviction but let stand without comment the enhanced attempted murder conviction and the enhanced robbery conviction. Although the propriety of the enhancement of both of the latter convictions may not have been in issue, the lack of comment on the issue is notable as is the lack of comment by the Cleveland court which cited Perez with approval.
After the supplemental briefs in this appeal were filed, the First District issued its opinion in Brown v. State, 617 So.2d 744 (Fla. 1st DCA 1993). In Brown, as in the instant case, there were three convictions, two of which were for distinct underlying criminal acts. In Brown, the robbery conviction was enhanced to armed robbery with a firearm and the defendant was convicted of use of a firearm in connection with the third conviction, attempted murder. The Brown court reversed the possession conviction stating that it was necessary to refer to the charging document to learn that the possession charge was made in connection with the charge of attempted murder, rather than in connection with the charge of armed robbery with a firearm. The court reasoned that, since section 775.021(4)(a) provides that multiple convictions analysis of the criminal statutes in issue must be made "without regard to the accusatory pleading or the proof adduced at trial," the possession conviction could not stand.
However, in a double jeopardy or multiple convictions analysis, reference to the accusatory pleading must be made at some point. Otherwise, no person could be convicted, ever, of more than one count of the same crime, notwithstanding that the various counts may refer to various victims or various dates of commission. As explained by our respected former colleague, Judge Cowart:
[T]he factual circumstances upon which the multiple similar charges are based must also be examined to ascertain if the multiple theoretically "same offense" charges are based on the same or on different factual events. It is very important to note that the inquiry into factual "sameness" or "difference" is a secondary double jeopardy inquiry that is never reached if the statutory offenses pass the Blockburger test for "difference." This factual inquiry is made, secondarily, only after it has already been determined that the two compared statutory offenses have failed the Blockburger test for difference and are, constitutionally, "the same offense." This factual inquiry must not be confused or commingled with the Blockburger test or its application to the particular statutory offenses in the same case.Baker v. State, 425 So.2d 36 (Fla. 5th DCA 1982.) Cowart, J., dissenting (footnote omitted).
I note, however, the Brown court's reference to State v. McCloud, 577 So.2d 939 (Fla. 1991), in which the supreme court reiterated that multiple convictions analysis must be made without regard to the pleadings or proof. The supreme court previously made that statement in State v. Rodriquez, 500 So.2d 120 (Fla. 1986) which this court relied on in Sirmons v. State, 603 So.2d 82 (5th DCA), jurisdiction accepted, 613 So.2d 9 (Fla. 1992). Since the instant case is more like Cleveland than it is like Rodriquez, I think the analysis used in Cleveland should be followed. In Cleveland the court held that, once the attempted robbery conviction was enhanced for the use of a firearm, the defendant was punished for all of the elements contained in the separate possession charge. That being so, the possession conviction could not stand. In the instant case Stearns was punished for possessing the weapon while committing the attempted burglary, because the attempted burglary conviction was enhanced. However, Stearns would be not be punished for possession of the weapon while committing the theft unless the separate possession conviction were allowed to stand. I would hold that it was proper to punish the armed attempted burglary by enhancing the burglary conviction to armed attempted burglary and at the same time to punish the armed theft by convicting Stearns of theft and the separate weapons charge.