State v. Enmund

The second district has certified the following question as being of great public importance:

When a defendant is convicted of felony murder, can he be convicted of, although not sentenced for, the underlying felony?

Enmund v. State, 459 So.2d 1160, 1162 (Fla. 2d DCA 1984). We have jurisdiction pursuant to article V, section 3(b)(4), Florida Constitution. We answer the certified question by holding that the underlying felony is not a necessarily lesser included offense of felony murder and that a defendant can be convicted of and sentenced for both felony murder and the underlying felony.

A jury convicted Enmund of two counts of first-degree murder and one count of robbery, and the trial court sentenced him to death for each murder and to life imprisonment for the robbery. We affirmed both his convictions and sentences, Enmund v. State, 399 So.2d 1362 (Fla.1981), but the United States Supreme Court reversed his death sentences. Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). On remand we vacated the death sentences and directed the trial court to resentence Enmund. Enmund v. State, 439 So.2d 1383 (Fla.1983).

At resentencing the trial court granted Enmund’s motion to vacate the life sentence for the robbery conviction and sentenced him to life imprisonment with no eligibility for parole for twenty-five years for each of the homicides. The court directed that the two twenty-five-year minimum mandatories would run consecutively, thereby making Enmund ineligible for parole for fifty years. On appeal the district court held that the minimum mandatories could only be concurrent, not consecutive. The second district also followed State v. Harris, 439 So.2d 265 (Fla. 2d DCA 1983), review denied, 450 So.2d 486 (Fla.1984), in which it relied on Bell v. State, 437 So.2d 1057 (Fla.1983), to hold that the conviction of, as well as the sentence for, robbery could not stand. The district court then certified the above-stated question.

The effect of recent opinions on State v. Hegstrom, 401 So.2d 1343 (Fla.1981), prompted the certified question. In Heg-strom we considered the issue of multiple punishments for discrete crimes arising out of the same offense. After analyzing Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), and Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981), we held that

the fifth amendment presents no substantive limitation on the legislature’s power to prescribe multiple punishments, and that double jeopardy seeks only to prevent courts either from allowing multiple prosecutions or from imposing multiple punishments for a single, legislatively defined offense.

401 So.2d at 1345 (footnote omitted). We then stated that in a felony murder the underlying felony is necessarily an offense included within the murder and held that Hegstrom could be convicted of, but not sentenced for, robbery as well as murder. We also receded from State v. Pinder, 375 So.2d 836 (Fla.1979), where we held that a defendant can neither be convicted of nor sentenced for both murder and an underlying felony.

In Bell we held that a defendant can neither be convicted of nor sentenced for a lesser included offense. In State v. Baker, 456 So.2d 419 (Fla.1984), however, we limited Bell to necessarily lesser included offenses. The instant question, therefore, presents the issue of whether the underlying felony is a necessarily lesser included offense of felony murder.

After studying Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), we conclude that the underlying felony is not a necessarily lesser included offense of felony murder. In Hunter the Supreme Court held that even though first-degree robbery and armed criminal action constituted the same offense under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), Hunter could be convicted of and punished for both crimes. Blockburger sets out a test of statutory construction which we used in Baker and which the legislature has adopted in subsection 775.021(4), Florida Statutes (1983). The United States Supreme Court, however, has now made it clear that the Blockburger rule of statutory construction will not prevail over legislative intent. As stated in Hunter:

Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the “same” conduct under Blockburger, a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.

459 U.S. at 368-69, 103 S.Ct. at 679; Albernaz, 450 U.S. at 340, 101 S.Ct. at 1142; Baker, 456 So.2d at 421; State v. Gibson, 452 So.2d 553, 558 (Fla.1984). We find sufficient intent that the legislature intended multiple punishments when both a murder and a felony occur during a single criminal episode.

We hold that an underlying felony is. not a necessarily lesser included offense of felony murder and hereby overrule Hegstrom Therefore, we hold that a defendant can be convicted of and sentenced for both felony murder and the underlying felony. We quash that portion of Enmund which vacates Enmund’s robbery conviction and remand for reinstatment of both that conviction and its attendant sentence.

We also quash the district court’s holding that Enmund’s minimum mandatory twenty-five-year sentences should be concurrent instead of consecutive. In reaching this conclusion the court relied on Palmer v. State, 438 So.2d 1 (Fla.1983). We find, however, that Palmer does not control the instant situation.

Palmer used one revolver to rob thirteen people at the same time. After analyzing subsection 775.087(2), Florida Statutes (1981), we held that three-year minimum mandatory sentences for firearm possession while committing a felony could not be made consecutive for offenses arising from a single criminal episode. Here, however, we have two separate and distinct homicides.

Section 921.141, Florida Statutes (1983), provides that a person convicted of a capital felony shall be sentenced to death or to life imprisonment without eligibility for parole for twenty-five years. Any such person not sentenced to death “shall be punished by life imprisonment and shall be required to serve no less than 25 years before becoming eligible for parole.” § 775.082(1), Fla.Stat. (1983). We hold that the legislature intended that the minimum mandatory time to be served before becoming eligible for parole from a conviction of first-degree murder may be imposed either consecutively or concurrently, in the trial court’s discretion, for each and every homicide. See § 775.021(4), Fla.Stat. (1983).

In remanding for resentencing we stated that Enmund’s “sentencing court shall have the discretion to decide whether the two sentences of life imprisonment are to be served concurrently or consecutively.”

439 So.2d at 1383. Palmer is not anala-gous to this situation, and we hold that the district court should not have reversed the trial court’s exercise of its discretion.

We quash the district court’s decision and answer the certified question as set out above.

It is so ordered.

ADKINS, ALDERMAN and EHRLICH, JJ., concur.

SHAW, J., concurs specially with an opinion with which BOYD, C.J., concurs.

OVERTON, J., concurs in part and dissents in part with an opinion.

We also recede from the second sentence of note 6 to State v. Gibson, 452 So.2d 553, 557 (Fla.1984).