Article I, § 9 of the Florida Constitution reads, “no person shall be twice put in jeopardy for the same offense.” 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.” But what happens when a jury returns a verdict finding a defendant guilty of two criminal offenses having the same elements, but one which carries a lesser sentence than the other? As seen, neither the United States Constitution nor the Florida Constitution dictate which conviction should be vacated.
This issue was recently addressed by the Florida Supreme Court in State of Florida v. Tuttle, SC14-817 (Nov. 12, 2015). In Tuttle, a jury returned a verdict finding the defendant guilty of attempted home invasion burglary and armed burglary. Before the trial court entered the sentencing phase, the State of Florida advised the court of the double jeopardy issue and requested that the court dismiss the attempted home invasion count as it carried a lesser sentence. The defendant objected and advised that the court was required to dismiss the count carrying the higher potential sentence.
The Florida Supreme Court accepted review of this issue as there was conflict regarding this issue amongst the First, Fourth and Fifth District Courts of Appeal. The Florida Legislature has codified the double jeopardy test that was annunciated in Blockburger v. United States, 284 U.S. 299 (1932) in Florida Statute § 775.021(4). This section provides as follows:
(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.
The Florida Supreme Court held, “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 v. State, 945 So.2d 1203 (Fla. 2006) should be vacated.”