Kelso v. State

961 So. 2d 277, 2007 WL 1836899
CourtSupreme Court of Florida
DecidedJune 28, 2007
DocketSC05-597
StatusPublished
Cited by16 cases

This text of 961 So. 2d 277 (Kelso v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kelso v. State, 961 So. 2d 277, 2007 WL 1836899 (Fla. 2007).

Opinion

961 So.2d 277 (2007)

Patrick Joseph KELSO, Petitioner,
v.
STATE of Florida, Respondent.

No. SC05-597.

Supreme Court of Florida.

June 28, 2007.

*278 Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, FL, Celia A. Terenzio, Bureau Chief, and Jeanine M. Germanowicz, Assistant Attorneys General, West Palm Beach, FL, for Respondent.

LEWIS, C.J.

We have for review the decision in Kelso v. State, 898 So.2d 1023 (Fla. 4th DCA 2005), in which the Fourth District certified conflict with the Fifth District's decisions in Wilson v. State, 776 So.2d 347 (Fla. 5th DCA 2001), and Scarola v. State, 889 So.2d 108 (Fla. 5th DCA 2004), and the Second District's decision in Thompson v. State, 888 So.2d 89 (Fla. 2d DCA 2004). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

FACTS AND PROCEDURAL HISTORY

The instant matter presents a purely legal question with regard to whether it is permissible to have convictions for multiple theft offenses arising from a single criminal transaction. The pertinent facts reveal that Kelso was charged and convicted of, among other offenses, third-degree grand theft of a firearm under section 812.014(2)(c)(5) of the Florida Statutes and second-degree grand theft under section 812.014(2)(b)(1) of the Florida Statutes. See § 812.014(2)(b)(1), (c)(5), Fla. Stat. (2003). It is undisputed that the offenses were committed during a single criminal transaction.

On appeal, Kelso contended that the two theft convictions under section 812.014 of the Florida Statutes were a violation of the constitutional prohibition against double jeopardy. The Fourth District, relying on the opinion of this Court in State v. Getz, 435 So.2d 789 (Fla.1983), held that the convictions did not violate double jeopardy principles. See Kelso, 898 So.2d at 1024-25. Quoting at length from Getz, the Fourth District reasoned that the Legislature intended for the theft of a firearm and the various other items of property specifically enumerated under section 812.014 to be considered "separate and distinct offenses, even where the thefts occur in a single criminal episode." Kelso, 898 So.2d at 1024 (quoting Getz, 435 So.2d at 791). The court concluded that the value of a stolen firearm is irrelevant to the grading of the theft crime under section 812.014, and attributed this to "the special nature of firearms, as distinct from other property *279 which could be stolen." Kelso, 898 So.2d at 1024. The Fourth District certified its holding to be in direct conflict with the decisions of the district courts in Wilson, Scarola, and Thompson, and this review followed.

ANALYSIS

Modeled after the double jeopardy provision of the Fifth Amendment to the United States Constitution, article I, section 9 of the Florida Constitution states that "no person shall . . . be twice put in jeopardy for the same offense." Art. I, § 9, Fla. Const. This Court has explained that "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.'" Hayes v. State, 803 So.2d 695, 699 (Fla. 2001) (quoting Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977)). This Court has stated that "[t]he 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.'" Gordon v. State, 780 So.2d 17, 19 (Fla.2001) (quoting M.P. v. State, 682 So.2d 79, 81 (Fla.1996)). The power to define criminal offenses is relegated to the Legislature. See Hayes, 803 So.2d at 699.

Originally in Florida, the common law "single transaction rule," which limited a conviction to only the most serious offense arising from a single 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).").

In 1983, this Court issued its opinion in Getz, which specifically addressed whether convictions for multiple theft offenses stemming from the same criminal episode were authorized by the Legislature, stating:

It is our view that as the theft statute[1] is written, the legislature intended *280 to make theft of a firearm under subsection (2)(b)3 and theft of property worth less than one hundred dollars under subsection (2)(c) separate and distinct offenses, even where the thefts occur in a single criminal episode. It is clear from a reading of section 812.014 that the legislature intended to treat the theft of different types of property as separate criminal offenses and to establish distinct punishments for the separate offenses. We note that if a firearm is stolen, its value is not an element of the offense and it is grand theft even if the firearm is worth less than one hundred dollars.

Getz, 435 So.2d at 791 (emphasis supplied). In Getz, we looked directly to the theft statute to determine whether convictions and sentences for multiple theft offenses arising from one criminal episode are authorized by the Legislature. See id. The Getz decision clearly established that the Legislature intended to distinguish between the theft of 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. United States,

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961 So. 2d 277, 2007 WL 1836899, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelso-v-state-fla-2007.