LINDA SCOTT, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Linda Scott was convicted of both manslaughter and child abuse. The Fourth District Court of Appeal treated child abuse as a lesser included offense of manslaughter and reversed the child abuse sentence. The Florida Supreme Court reversed that portion of the decision, holding that manslaughter and child abuse are separate offenses under the Blockburger test and that both convictions and sentences may stand.
Child abuse and manslaughter are separate offenses, not lesser-greater included offenses of each other, under the Blockburger test. The portion of the district court's decision finding child abuse a lesser included offense of manslaughter and reversing the child abuse sentence was quashed, allowing both convictions and sentences to stand.
[1] A conviction for a lesser included offense may not stand when a defendant has been convicted of and sentenced for the greater crime.
[2] The proper test to determine if one offense is a lesser included offense of another is whether the statutory elements of each offense require proof of a fact that the ele…
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Join FLexlaw to unlock all legal intelligence“It is true that Bell prevents either a conviction or a sentence for a lesser included crime when a defendant has been convicted of and sentenced for the greater crime.”
Establishes the legal principle that convictions for lesser included offenses cannot stand when there is a conviction for the greater crime.
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Join FLexlaw to unlock all legal intelligenceScott was convicted of manslaughter and child abuse. The district court found that child abuse was a lesser included offense of manslaughter and there…
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SHAW, Justice.
We have by petition for review Scott v. State, 431 So. 2d 733 (Fla. 4th DCA 1983), which is in express and direct conflict with this Court’s decision in Bell v. State, 437 So. 2d 1057 (Fla.1983). We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution.
Petitioner was convicted of and sentenced for manslaughter and child abuse. The district court found that the child abuse count was a lesser included offense of the manslaughter count and that petitioner could be sentenced for the manslaughter conviction only, citing Borges v. State, 415 So. 2d 1265 (Fla.1982) and State v. Hegstrom, 401 So. 2d 1343 (Fla.1981). The court did not reverse the child abuse conviction.
Petitioner contends that under this Court’s decision in Bell, her conviction for the lesser included offense may not stand. It is true that Bell prevents either a conviction or a sentence for a lesser included crime when a defendant has been convicted of and sentenced for the greater crime. Were child abuse a lesser included offense of manslaughter, Bell would require quashing the portion of the district court’s decision upholding petitioner’s conviction for child abuse. The district court applied the “category four” analysis of Brown v. State, 206 So. 2d 377 (Fla.1968), to support its holding. The proper test, however, is whether the statutory elements of each offense require proof of a fact that the elements of the other do not under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); State v. Carpenter, 417 So. 2d 986 (Fla.1982); Borges v. State.
*
If so, the two offenses are separate. The district court erroneously analyzed the allegations and proof rather than the statutory elements.
Applying the Blockburger test, we find that section 782.07, Florida Statutes (1979), the manslaughter statute, requires proof of the killing of a human. Proof of this fact is not required by the child abuse statute, section 827.04, Florida Statutes (1979), which requires proof that a child was abused. To prove manslaughter it is unnecessary to prove that a child was killed. Manslaughter and child abuse are separate offenses.
We therefore quash that portion of the district court’s decision finding child abuse a lesser included offense of manslaughter and reversing the sentence for child abuse.
We see no reason to disturb the remainder of the decision.
It is so ordered.
ALDERMAN, C.J., and BOYD, MCDONALD and EHRLICH, JJ., concur. ADKINS and OVERTON, JJ., dissent.
*
The legislature adopted the Blockburger test when it amended section 775.021(4), Florida Statutes, in 1983.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)…ed by the legislature’s manifest concern over the proliferation of violent crimes involving the use of firearms. On the basis of the Blockburger test, therefore, we concluded that separate punishments were permissible. Similarly, in Scott v. State, 453 So. 2d 798 (Fla.1984), we found that dual convictions for manslaughter and child abuse were permissible. Resorting to the Blockburger test, we found that each offense required proof of a fact that the other did not. Moreover, the legislature manifestly had a r…
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Linehan v. State, 476 So. 2d 1262 (Fla. 1985)…ains an element that the other does not have, then the offenses are separate not lesser included. Vause v. State, 476 So. 2d 141 (Fla.1985); State v. Boivin, No. 64,368 (Fla. Aug. 29, 1985); State v. Baker, 456 So. 2d 419 (Fla.1984); Scott v. State, 453 So. 2d 798 (Fla.1984); State v. Baker, 452 So. 2d 927 (Fla.1984); State v. Gibson, 452 So. 2d 553 (Fla.1984); and Bell v. State, 437 So. 2d 1057 (Fla.1983). The district court relies on Florida Rule of Criminal Procedure 3.490 and this Court’s commentary adop…
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State v. Enmund, 476 So. 2d 165 (Fla. 1985)…at the Blockburger test is one of legislative intent, not double jeopardy, and that the test is applied only to the statutory elements, not to the pleadings or the proof introduced at trial. State v. Baker, 456 So. 2d 419 (Fla.1984); Scott v. State, 453 So. 2d 798 (Fla.1984); State v. Baker, 452 So. 2d 927 (Fla.1984); State v. Gibson, 452 So. 2d 553 (Fla.1984). The only remaining anomaly prior to the decision here was State v. Hegstrom, 401 So. 2d 1343 (Fla.1981), where we held that there could be convictions…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Blockburger v. United States, 284 U.S. 299 (U.S. 1932)
- Albernaz v. United States, 450 U.S. 333 (U.S. 1981)
- Missouri v. Hunter, 459 U.S. 359 (U.S. 1983)
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- Borges v. State, 415 So. 2d 1265 (Fla. 1982)
- Bell v. State, 437 So. 2d 1057 (Fla. 1983)
- State v. Hegstrom, 401 So. 2d 1343 (Fla. 1981)
- State v. Rivers, 401 So. 2d 1343 (Fla. 1981)
- State v. Carpenter, 417 So. 2d 986 (Fla. 1982)
- Scott v. State, 431 So. 2d 733 (Fla. 4th DCA 1983)