          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




                                          -2-
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.

                                        -3-
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




                                        -4-
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


                                        -5-
      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


                                         -6-
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:

                                         -7-
      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


                                         -8-
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


                                         -9-
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

                                         - 10 -
      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


                                        - 11 -
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.

                                         - 12 -
      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.




                                        - 13 -
      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.


                                         - 14 -
      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

                                        - 15 -
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




                                         - 16 -
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.




                                         - 17 -
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




                                      - 18 -
