State of Florida v. Timothy W. Tuttle, Jr.

Supreme Court of Florida
____________
No. SC14-817
____________
STATE OF FLORIDA,
Petitioner,
vs.
TIMOTHY W. TUTTLE, JR.,
Respondent.
[November 12, 2015]
LEWIS, J.
The State of Florida seeks review of the decision of the Second District
Court of Appeal in Tuttle v. State, 137 So. 3d 393 (Fla. 2d DCA 2014), on the
ground that it expressly and directly conflicts with the decisions of the First
District Court of Appeal in Johnson v. State, 133 So. 3d 602 (Fla. 1st DCA 2014),
and Davis v. State, 74 So. 3d 1096 (Fla. 1st DCA 2011), the decision of the Fourth
District Court of Appeal in Olivera v. State, 92 So. 3d 924 (Fla. 4th DCA 2012),
and the decision of the Fifth District Court of Appeal in Washington v. State, 120
So. 3d 650 (Fla. 5th DCA 2013), on a question of law. We have jurisdiction. See
art. V, § 3(b)(3), Fla. Const.
BACKGROUND
Double jeopardy prohibits conviction for two crimes where all of the
elements of one crime are subsumed within the elements of the second crime. See
Pizzo v. State, 945 So. 2d 1203, 1206 (Fla. 2006). In Pizzo, we held that in the
double jeopardy context, the lesser crime is that which has each element subsumed
by the second crime, and the greater crime is that which requires proof of an
additional element not required by the lesser crime. Id. at 1207. The conflict issue
concerns which conviction should be vacated to alleviate double jeopardy concerns
where, as in this case, the lesser crime carries a higher punishment than the greater
crime.
This case arises from the home invasion of the residence of Eric Stuebinger
by two armed individuals. Tuttle, 137 So. 3d at 394. Stuebinger was ultimately
shot and killed during the incident, and Tuttle was identified as one of the
intruders. Id. The State charged Tuttle with second-degree murder with a firearm,
first-degree attempted home invasion robbery with a firearm causing death or great
bodily harm, and first-degree burglary while armed. The jury found Tuttle guilty
of manslaughter with a firearm, attempted home invasion robbery with a firearm,
and armed burglary. Prior to sentencing, the State informed the trial court that dual
convictions for attempted home invasion robbery and armed burglary presented
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double jeopardy concerns,1 and asked that the court dismiss the attempted home
invasion robbery conviction, which carries a lesser sentence. Tuttle objected and
asserted that the court was required to dismiss the armed burglary conviction,
which carries a higher sentence.
The parties filed sentencing memoranda with regard to which conviction
should be vacated. The State asserted that Florida law requires the lesser charge to
be set aside, and attempted home invasion robbery is the lesser charge because it is
a second-degree felony, whereas armed burglary is a first-degree felony that carries
a greater sentence. On the other hand, Tuttle relied on Schulterbrandt v. State, 984
So. 2d 542, 544 (Fla. 2d DCA 2008), in which the Second District vacated an
armed burglary conviction after it held that convictions for both attempted home
invasion robbery and armed burglary violate double jeopardy because the elements
of armed burglary are subsumed by those of attempted home invasion robbery.
Accordingly, Tuttle contended that based on this elements test, the armed burglary
conviction must be vacated, regardless of punishment.
The trial court accepted the position of the State and vacated the attempted
home invasion robbery conviction. Tuttle appealed the ruling,2 and the parties
1. The State does not contest in this review that dual convictions for both
charges would result in a double jeopardy violation.
2. Tuttle raised two other claims before the Second District that are not
relevant to the issue before this Court.
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reiterated their arguments presented before the trial court. The Second District
recognized that in Pizzo, this Court explained that the lesser offense is determined
by looking exclusively to statutory elements, and that punishment should not be
considered. Tuttle, 137 So. 3d at 395 (citing Pizzo, 945 So. 2d at 1206). The
district court examined the elements of attempted home invasion robbery and
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. Id.The State sought discretionary review in this Court based on express and
direct conflict between the decision below and Johnson, 133 So. 3d at 602,
Washington, 120 So. 3d at 650, Olivera, 92 So. 3d at 924, and Davis, 74 So. 3d at
1096. In each of these cases, the lesser crimes as defined by Pizzo were allowed to
stand, and the convictions for the greater crimes were vacated.
ANALYSIS
A double jeopardy claim based on undisputed facts presents a pure question
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
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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 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.
(Emphasis supplied). 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. Stat. (2006)
(codifying the Blockburger elements test where the Legislature does
not clearly provide for separate offenses). The Legislature has stated
its intent to convict and sentence for each offense defined as separate
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. See State v. 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”).
Pizzo, 945 So. 2d at 1206.
Prosecutorial Discretion
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The State asserts that requiring the lesser offense to be vacated infringes on
prosecutorial discretion because it prevents the State from seeking adjudication and
sentencing on a conviction that was properly charged. However, the State provides
no authority that supports this claim. Rather, the cases simply relate to
prosecutorial discretion with regard to the charging of criminal offenses. See Ball
v. United States, 470 U.S. 856, 859 (1985) (noting that the prosecutor has the
discretion to select which charges to file); see also United States v. Batchelder, 442
U.S. 114, 125 (1979) (holding that prosecutors may exercise discretion in
determining which of several statutes with the same elements to charge, and this
decision may be influenced by the penalties available on conviction); State v.
Cogswell, 521 So. 2d 1081, 1082 (Fla. 1988) (same); Fayerweather v. State, 332
So. 2d 21, 22 (Fla. 1976) (same); State v. Bloom, 497 So. 2d 2, 3 (Fla. 1986)
(holding that the decision to charge and prosecute is an exclusively executive
function, and the trial judge did not have the authority to make a pre-trial
determination as to the applicability of the death penalty). The State also relies on
Barber v. State, 564 So. 2d 1169, 1170-71 (Fla. 1st DCA 1990), which relates to
the prosecutor’s discretion to determine which penalty scheme to pursue against a
defendant. Another case concerns the executive clemency power and simply notes
that prosecutorial discretion is a stage that precedes the judicial process. See
Sullivan v. Askew, 348 So. 2d 312 (Fla. 1977). None of these cases hold that
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prosecutorial discretion is affected when a court remedies a double jeopardy
violation after a verdict has been rendered.
The State additionally relies on Claps v. State, 971 So. 2d 131 (Fla. 2d DCA
2007). In Claps, the defendant asserted that double jeopardy protections should be
extended to either the information or jury selection phase of the proceedings. Id. at
134. The Second District declined to extend the protections and concluded that the
ability of the State to select from a number of charging options does not conflict
with the prohibition against double jeopardy. Id. The district court further stated
that to rule otherwise would usurp the State’s discretion with respect to strategic
charging decisions, as well as the jury’s role in deciding facts. Id. Thus, like the
previously discussed cases, Claps relates only to discretion at the charging and
prosecuting stages, not the post-verdict stage. Indeed, the district court stated:
Allowing the jury to exercise its fact-finding function to decide which
crime—or crimes—may have been committed, even when based on
the same facts, is a classic and appropriate function of the jury trial
system, just as a court’s determination as a matter of law which guilty
verdicts will be precluded from adjudication and sentencing on double
jeopardy grounds is a similarly appropriate function of the judiciary.
Id. at 135 (emphasis supplied). Accordingly, Claps directly contradicts the State’s
position with regard to prosecutorial discretion, and instead supports the
conclusion that such decisions are properly made by a court.
Finally, the State relies on dicta from a footnote contained in Bogan v. State,
552 So. 2d 1171, 1173 n.4 (Fla. 3d DCA 1989), which states:
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Indeed, there seems to be no restriction upon the state attorney’s
prerogative to abandon a particular prosecution at any stage of the
proceedings, even post-verdict. . . . One must wonder whether some
new constitutional principle (of “lenity”?) is now afoot, requiring that
a particular charge be brought, and successfully so, against a
defendant so that, when convicted, he may then receive a lesser
punishment than otherwise.
This extraneous and unsupported statement does not persuade us that prosecutorial
discretion is infringed when courts remedy double jeopardy violations after the
jury has returned a verdict. Prosecutorial discretion allows a prosecutor to
determine what crimes to charge, but does not allow a prosecutor to reach back
after a verdict has been rendered so as to reach a more favorable result.
Double Jeopardy
The State also contends that this case does not involve a double jeopardy
violation because the trial court vacated the attempted home invasion robbery
conviction, and therefore never adjudicated or sentenced Tuttle on overlapping
crimes. The State asserts that this case is not comparable to double jeopardy cases
in which the trial court entered a judgment for both crimes, one of which is later
reversed. In support of this contention, the State relies on Ball, 470 U.S. at 856,
and Griffin v. State, 69 So. 3d 344 (Fla. 4th DCA 2011).
In Ball, the defendant was convicted and sentenced for receiving a firearm
and possession of the same firearm. 470 U.S. at 857. The United States Supreme
Court held that the government was not prohibited from simultaneously
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prosecuting under both statutes. Id. at 860. However, the Supreme Court qualified
this by stating that it did not mean the defendant could be convicted and punished
for both offenses. Id. at 861. The Supreme Court determined that because the two
statutes were directed toward the same evil and Congress did not intend for
conduct to be punished for both crimes, the appropriate remedy was for the
sentencing court to exercise its discretion to vacate one of the overlapping
convictions. Id. at 864. The Supreme Court further held that adjudication for both
convictions would violate double jeopardy even if no greater sentence was
imposed as a result of conviction for both crimes because a conviction itself results
in potential adverse collateral consequences. Id.In Griffin, the defendant entered an open plea of no contest for several
crimes, and his plea was accepted by the trial court, which adjudicated him guilty
on all counts. 69 So. 3d at 345. The defendant later filed a motion to withdraw his
plea on several counts based on double jeopardy grounds. Id. The State conceded
with respect to a single count, and the trial court vacated the conviction on that
count. Id. On appeal, the district court held that vacating the count eliminated any
double jeopardy violation. Id.Thus, Ball and Griffin support the conclusion that double jeopardy concerns
arise once guilty verdicts on overlapping crimes are returned. The simple fact that
the trial court may cure a violation before adjudication does not mean the double
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jeopardy issue never arose. Indeed, if double jeopardy was not an issue, there
would be no reason to vacate one of the convictions. Accordingly, we must
address whether, as the State asserts, the trial court has the discretion to select
which conviction to vacate under these circumstances.
In Pizzo, this Court held that when determining which offense is the lesser in
the double jeopardy context, courts should look only to the elements of each
offense, not the punishment for each offense. 945 So. 2d at 1206. The defendant
in Pizzo was convicted and sentenced for, among other crimes, one count of
organized fraud and six counts of grand theft. Id. at 1205. On appeal, the Second
District reversed those convictions and remanded for the trial court to determine
whether the six counts of grand theft, which were third-degree felonies, were
greater or lesser offenses than the one count of organized fraud, which was a first-
degree felony. Id. This Court accepted jurisdiction because the Second District’s
decision conflicted with Donovan v. State, 572 So. 2d 522 (Fla. 5th DCA 1990), in
which the Fifth District reversed grand theft convictions as lesser offenses of
organized fraud based on a comparison of the statutory elements of the two
offenses. Pizzo, 945 So. 2d at 1205. This Court characterized the conflict as
follows:
What is in dispute is whether grand theft is the lesser offense and the
method by which the lesser offense should be determined: that is,
whether the elements of grand theft should be compared to the
elements of organized fraud, Donovan, 572 So. 2d 522, or whether the
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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. 572 So. 2d at 526. However, the district court in
Donovan remanded for resentencing for the organized fraud conviction because no
sentence was originally imposed for that crime. Id. at 527. The district court
stated:
In the present case we deal with a not unique situation in which
the original sentence for a greater offense is less (in this case
nonexistent) than the original sentences for lesser offenses. There
would be a miscarriage of justice, and an obvious thwarting of the
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. 945 So.
2d at 1206.
The conflict here arises in part because district courts have failed to apply
the holding of Pizzo. Three of the conflict cases—Johnson, Davis, and Olivera—
are based on determinations with respect to whether home invasion robbery or
burglary constitutes the greater offense without consideration of our holding in
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Pizzo. See Johnson, 133 So. 3d at 604 (acknowledging the crime of burglary of a
dwelling with an assault or battery is subsumed by home invasion robbery, but
reversing conviction for home invasion robbery); Olivera, 92 So. 3d at 925(holding armed burglary of a dwelling with a battery was the greater offense, as
opposed to attempted home invasion robbery, because it carried a higher
punishment, and reversing home invasion robbery conviction); Davis, 74 So. 3d at
1097 (holding burglary with an assault or battery is the greater offense and home
invasion robbery the lesser offense, and reversing the home invasion robbery
conviction).3
However, we conclude that Pizzo is not controlling on the issue presented
here. The State concedes in this review that attempted home invasion robbery is
the greater offense, but asserts the trial court has the discretion to vacate the greater
offense where it carries a less severe punishment than the lesser offense. This
issue was not analyzed or discussed in Pizzo. Although in Pizzo we stated the
lesser offense should be vacated in reliance on State v. Barton, 523 So. 2d 152(Fla. 1988), Barton did not involve a situation in which the lesser offense carried a
greater punishment than the greater offense. This Court stated in Barton:
As in cases where double jeopardy is applied to dual convictions,
Shade v. State, 400 So. 2d 850 (Fla. 1st DCA 1981), there appears to
3. The final conflict case identified in the State’s jurisdictional brief
provides no explanation for how the district court determined which conviction and
sentence should be reversed. Washington, 120 So. 3d at 651.
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be no reason why the lesser conviction should not be vacated since the
defendant has been found guilty of both crimes. [n.3] Henceforth,
when a Carawan[v. State, 515 So. 2d 161 (Fla. 1987),] analysis is
applied and one of two convictions must fall, we hold that the
conviction of the lesser crime should be set aside.
[N.3.] In cases involving convictions of both the greater
and lesser included offenses, it is the lesser rather than
the greater sentence which is vacated. See Russell v.
State, 430 So. 2d 617 (Fla. 2d DCA 1983); Ervin v. State,
419 So. 2d 409 (Fla. 2d DCA 1982).
Id. at 153. Thus, Barton states that the lesser conviction and the lesser sentence
should be vacated, and assumes that the lesser conviction will carry the lesser
sentence. As a result, neither Barton nor Pizzo resolve the issue here.
Moreover, the double jeopardy clauses of the United States and Florida
Constitutions do not dictate which conviction must be vacated. The double
jeopardy clause of the Florida Constitution provides, “[n]o person shall be . . .
twice put in jeopardy for the same offense . . . .” Art. 1 § 9, Fla. Const. The
double jeopardy clause of the United States Constitution similarly provides that
“[n]o person shall be subject for the same offence to be twice put in jeopardy of
life or limb.” U.S. Const. amend. V. As this Court explained in Valdes v. State, 3
So. 3d 1067, 1069 (Fla. 2009), double jeopardy protects a person from being
subjected to multiple prosecutions, convictions, and punishments for the same
crime. Thus, vacating either conviction would resolve the double jeopardy issue.
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However, we conclude the plain and ordinary meaning of the double
jeopardy statute directs that the lesser crime, as defined by Pizzo, should be
vacated. See Leftwich v. Fla. Dept. of Corrs., 148 So. 3d 79, 87 (Fla. 2014) (“The
plain language of a statute is the primary method through which legislative intent
may be discovered.”). 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. Stat. The statute
states, in essence, that each criminal offense will be separately punished, except
those lesser offenses whose statutory elements are subsumed by a greater offense.
Thus, in the anomalous situation in which the lesser offense carries the greater
punishment, the conviction for the lesser offense should nonetheless be vacated,
and the sentence for the greater offense should be maintained.
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. Accordingly, we approve the decision below, and
disapprove the decisions in Johnson, Davis, Olivera, Washington, and any other
cases to the extent that they are contrary to this holding.
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It is so ordered.
LABARGA, C.J., and PARIENTE, QUINCE, POLSTON, and PERRY, JJ.,
concur.
CANADY, J., dissents with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
CANADY, J., dissenting.
The majority concludes that Mr. Tuttle must be punished for his second-
degree felony conviction rather than for his first-degree felony conviction because
the first-degree felony (punishable by life) is a “lesser offense” 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). But that statutory provision is silent regarding the remedy
applicable when two convictions for the same criminal conduct are impermissible
under the rule of construction set forth in the statute. The majority can identify no
portion of the statutory text that specifies the remedy for impermissible
convictions. Rather than relying on the plain language of the statute, the majority
decision draws the inference that the label applied to an offense in the statute
determines the remedy for a violation. This is untenable because it gives no
consideration to the only cogent rationale for the rule we have previously
announced regarding the remedy for impermissible dual convictions. Contrary to
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the majority’s analysis, determining the proper remedy is not a purely formalistic
exercise in labeling.
The rule the Court announced in State v. Barton, 523 So. 2d 152, 153 (Fla.
1988), that “when impermissible dual convictions have occurred” “the conviction
of the lesser crime should be set aside” is a rule that must have a rationale. Our
previous failure to articulate such a rationale does not indicate that a rationale is
lacking. The result reached by the majority in this case illustrates the dangers
inherent in the judicial pronouncement of a rule unaccompanied by any reasoning
regarding the basis for the rule. A judicially announced rule without an articulated
rationale is susceptible to applications that are inconsistent with the unexplained
reasons underlying the rule.
The only cogent rationale for remedying impermissible dual convictions by
setting aside the conviction for the “lesser crime” is that a defendant should be
subject to the most severe punishment that is warranted by the jury’s verdict. The
Court’s failure to set forth a rationale in Barton is attributable to the obviousness of
this rationale. Indeed, no alternative plausible rationale is apparent. Legislative
intent in authorizing punishment is thwarted if the remedy for impermissible dual
convictions prevents the defendant from being subjected to punishment to the
fullest extent authorized by law under the jury’s verdict. There is no reason that
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the remedy provided for the impermissible dual convictions should result in a
windfall for the defendant.
For purposes of determining the proper remedy, it is not reasonable to
conclude that a first-degree felony (punishable by life) is a “lesser crime” than a
second-degree felony. From any perspective other than the hyper-formalistic, what
makes one crime “lesser” than another is the less severe punishment imposed for
the “lesser” crime.
The majority correctly recognizes that we confront the “anomalous
situation” where the offense whose elements are subsumed carries a greater
punishment than the subsuming offense. The proper response to that anomaly is
not to impose an anomalous remedy. Instead, the proper response is to recognize
that the only cogent rationale for the rule that the conviction for the “lesser crime”
be set aside requires that the “lesser crime” be determined by the severity of the
sanction associated with crime.
I therefore would quash the decision of the Second District Court in Tuttle
and approve the decisions of the other district courts that are in conflict with Tuttle.
I would also recede from Pizzo to the extent that it is inconsistent with the rationale
I have explained.
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Application for Review of the Decision of the District Court of Appeal - Direct
Conflict of Decisions
Second District - Case No. 2D12-3972
(Lee County)
Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Donna S. Koch,
Assistant Attorney General, and John M. Klawikofsky, Assistant Attorney General,
Tampa, Florida,
for Petitioner
Howard L. Dimmig II, Public Defender, and Benedict P. Kuehne, Special Assistant
Public Defender, Tenth Judicial Circuit, Bartow, Florida; and Michael T. Davis of
the Law Office of Benedict P. Kuehne, P.A., Miami, Florida,
for Respondent
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