IN THE DISTRICT COURT OF APPEAL OF FLORIDA, SECOND
DISTRICT
LAWRENCE
PENDARVIS,
Petitioner,
vs. CASE
NO. 2D02-1118
STATE OF
FLORIDA,
Respondent.
PETITION FOR WRIT OF PROHIBITION
Petitioner, Lawrence
Pendarvis, Pro Se, hereby petitions this Court for a writ of prohibition to
prohibit the Honorable Charles Lee Brown, Judge of the Tenth Judicial Circuit,
from adjudicating and sentencing Petitioner for more than one count in Case No.
CF96-03319A-XXX. In support of
this petition, Petitioner states:
1.
This
Court has Original Jurisdiction to issue writs of prohibition concerning
pending criminal charges, under Rule 9.030(b)(3), Florida Rules of Appellate
Procedure. Taylor v.
State, Case No. 1D02-0424, First District Court of Appeal, March 15, 2002.
2.
In
this 1996 case, Petitioner is currently charged with 129 counts of possession
of child pornography, Florida Statute 827.071(5).
3.
Petitioner’s
case is subject to the 1995 sentencing guidelines, or the 1994 sentencing
guidelines, which are identical for this offense.
4.
A
peculiar but undeniable interplay among Double Jeopardy, Cruel or Unusual
Punishment, and Florida’s 1994 and 1995 sentencing guidelines (the “point
system”), has led to an Absurd Result.
5.
Possession
of Child Pornography (Florida Statute 827.071(5)) is a lesser included offense
of Possession with Intent to Promote (Florida Statute 827.071(4)). The elements
of the crimes are the same, except for the element of “Intent to Promote.” The statutory description of Possession
with Intent to Promote (Florida Statute 827.071(4)) does not explicitly state
that scienter is an element of the offense, whereas scienter is explicitly
mentioned in Florida Statute 827.071(5).
But scienter is necessarily an element of any possession charge, even
where the Prosecution does not bear the burden of proof. Chicone v. State, 684 So. 2d 736
(Fla. 1996); Abbott v. State, Case No. 99-00863, Second District
Court of Appeal, November 12, 1999.
6.
Under
the 1994 and 1995 sentencing guidelines, those convicted had to be sentenced
under the guidelines, absent a written reason for departure. The guidelines assess 4 points for the
first third-degree felony, then 0.7 point for each additional count, so that
for 129 counts Petitioner would have 93.6 points. But if he were convicted of 129 counts of Florida Statute
827.071(4), a second-degree felony, he would have to be sentenced on only one
count, which is only 22 points.
7.
A
“grossly disproportionate sentence” analysis is appropriate even in non-capital
cases. Henderson v. Norris,
258 F.3d 706 (8th Cir. 2001).
8. The Florida Constitution forbids “excessive
punishment” even more strongly than does the U.S. Constitution, because it
forbids punishments that are EITHER cruel OR unusual,
whereas the U.S. Constitution prohibits only punishments which are BOTH cruel
AND unusual.
a. Florida Constitution, Article I, Section 17.
Excessive punishment.—Excessive fines, cruel OR unusual
punishment, attainder, forfeiture of estate, indefinite
imprisonment, and unreasonable detention of witnesses are forbidden.
b.
Therefore,
in Florida, a punishment which is unusual, but not necessarily
cruel, is unconstitutional. And it
is very unusual for one behavior (simple possession, without more) to carry a
severe sentence, whereas the very same behavior (“possession”), together
with an aggravating factor (“intent to promote”), cannot be punished so
harshly.
9.
The
Supreme Court of Florida has prescribed the “a/any” test for Double Jeopardy
cases. State v. Watts, 462 So. 2d 813 (Fla. 1985). If the Legislature uses the word “any,”
the assumption is that they meant that only one conviction may be had even if
multiple violations of the same statute are charged.
10.
The Second District Court of Appeal (in
an opinion by Judge Oliver Green) applied the “a/any” test to reverse multiple
counts in Thibeault v. State, 732 So.2d 28 (Fla. 2d DCA 1999).
a.
With
regard to the Possession Statute, Judge Oliver Green’s opinion stated, ‘The
Fourth District dealt with section 827.071(5), Florida Statutes (1987), which
made it a crime to possess "any" photograph, etc., that depicted
sexual conduct by a child: “The court in Schmitt v. State, 563 So. 2d
1095 (Fla. 4th DCA 1990), applied the ‘a/any’ test and said the use of
the word ‘any’ indicated the legislature intended the possession of several
articles should be treated as a single offense. Subsequent to that decision,
the legislature amended the statute and changed the word ‘any’ to ‘a’.” ’
b.
Note
that the Legislature declined to also change the language of the Greater
Including Offense to use the word “a”, despite having an excellent opportunity
to do so at that time.
11.
In State v. Parrella, 736 So.2d 94
(Fla. 4th DCA 1999), the Fourth District Court of Appeal reversed all
but one of 4 convictions for “possession with intent to promote” (Florida
Statute 827.071(4)) on Multiple Jeopardy grounds.
12.
In Wade v. State, 751 So.2d 669
(Fla. 2d DCA 2000), the Second District Court of Appeal reversed all
but one of 3 convictions for “possession with intent to promote,” while letting
stand 54 counts of mere possession (the offense with which Petitioner is
charged). Thus Wade was assessed
more points for his lesser included offense than for the greater including
offense.
13.
In Crosby v. State, 757 So.2d 584
(Fla. 2d DCA 2000), the Second District Court of Appeal reversed all
but one conviction for “possession with intent to promote,” while letting
multiple counts of mere possession stand.
Thus Crosby may have been assessed more points for his lesser included
offense than for the greater including offense.
14.
In Hudson v. State, 761 So.2d 1161
(Fla. 2d DCA 2000), the Second District Court of Appeal reversed all
but one of 48 convictions for “possession with intent to promote,” while
letting 280 counts of mere possession stand. Thus Hudson was assessed far more points for his lesser
included offense than for the greater including offense.
15.
In State v. Riley, 26 Kan. App. 2d
533, 989 P.2d 792 (1999), the Court of Appeals of the State of Kansas
said: “In considering whether a sentence is disproportionate, a court may
compare the punishment with punishments imposed for more serious offenses, and
if among them are found more serious crimes punished less severely than the
offense in question, the challenged penalty is to that extent suspect. Freeman,
223 Kan. at 367: ‘Other jurisdictions agree that a lesser included
crime may not carry a harsher sentence than the greater. See Willoughby
v. Phend, 301 F. Supp. 644, 647 (N.D. Ind. 1969); State v.
Dayutis, 127 N.H. 101, 105, 498 A.2d 325 (1985).’ “
16.
From People v. Koppa, 184 Ill.2d
202, 703 N.E.2d 91 (1998): “This court has recognized three ways in
which the proportionate penalties clause may be violated. First, there is a violation of the
proportionate penalties clause where the punishment for a particular offense is
cruel, degrading, or so wholly disproportionate to the offense as to shock the
moral sense of the community. See People
v. Morris, 136 Ill. 2d 157, 167 (1990); People v. Steppan, 105 Ill. 2d 310, 320 (1985). Second, the proportionate penalties clause
is violated where identical offenses result in different sentences. See People
v. Lewis, 175 Ill. 2d 412, 418 (1996); People v. Christy, 139 Ill. 2d 172, 181 (1990). Third, the proportionate penalties
clause is violated where similar offenses are compared and conduct that creates
a less serious threat to the public health and safety is punished more
harshly. See People v. Davis, 177 Ill. 2d 495, 503 (1997);
People v. Hickman, 163 Ill. 2d 250,
259 (1994); People v. Johns, 153 Ill. 2d 436, 447 (1992)."
a.
In
Lewis, the Circuit Court dismissed the charges, and was upheld on
appeal. The sentence wasn't merely
made to conform to the sentence given for the Greater Offense.
b.
In
Christy, the conviction and sentence were vacated; the defendant
was not resentenced.
17.
The Oregon Court of Appeals has stated:
"… successful challenges based on constitutional proportionality have been
exceedingly rare in Oregon. See State v. Shumway, 291 Or 153, 630 P2d 796
(1981) (a statutory scheme that provides a greater penalty for a lesser
included offense violates Article I, section 16, of the Oregon constitution); Cannon
v. Gladden, 203 Or 629, 281 P2d 233 (1955) (same). Both Shumway and Cannon
involved vertically disproportionate sentences…." State
v. Thorp, 2 P.3d 903 (Or. Ct. of App. 2000). And Petitioner’s case too involves “vertically
disproportionate sentences,” which violate the “cruel or unusual” clause of
the Florida Constitution.
18.
The proper sentence, if any, must be for
only one count (or NO COUNTS) of the Third Degree Felony of simple
possession. Although Petitioner’s
argument is only that it is Cruel OR Unusual to have disparate and
disproportionate punishments, the punishment cannot simply be made equal to
that for one Count of the Second Degree Felony, because Petitioner is not
charged with the Second degree Felony.
All the Trial Court can do is sentence him for, at most, one Count of
Simple Possession.
a.
The
Statute against “Possession With Intent To Promote” is not before the Trial
Court. Therefore the only thing
that can be decided is whether or not Petitioner’s offense can be punished for
MORE THAN ONE Count, when those convicted of multiple Counts of the Greater
Including Offense cannot be punished for more than a SINGLE Count. The Trial
Court cannot address the legality of the Greater Including Offense Statute,
which has consistently been construed to allow only ONE Count for “Possession
With Intent To Promote.”
b.
It
is obvious that the Legislature did not intend this absurd result, and it is
also obvious that they intended Petitioner’s offense (Possession of Child
Pornography) to be punishable for multiple Counts, but the now well-established
principle that the Greater Including Offense cannot be punished as multiple
Counts makes the two parts of the Statute incompatible (an ABSURD RESULT). The Court must construe the Statute
under which Petitioner has been charged so as to avoid this Absurd Result. The
Court cannot construe the Greater Including Offense so as to avoid the Absurd
Result, because that part of the statute is not at issue here and is not before
the Court. Therefore the Court
must construe the offense with which Petitioner has been charged so as to be in
conformity with the Greater Including Offense. Therefore Petitioner cannot be sentenced for multiple Counts
in this case.
19.
Because the penalty for Florida Statute
827.071(5) violated the “cruel or unusual” clause at the time of the offense,
the State has no authority, discretionary or otherwise, to charge that offense. However, Petitioner is unable to simply
move for dismissal in the trial court, because he is represented by counsel
(the Office of the Public Defender) before that Court.
WHEREFORE, Petitioner prays that this Court
issue a Writ of Prohibition to prohibit the lower Court from adjudicating and
sentencing Petitioner for more than one count, or any relief deemed
appropriate.
RESPECTFULLY
SUBMITTED on this 25th
day of March, 2002.
Signed under the
penalties of perjury this 25th
day of March, 2002.
_______________________________
Lawrence
Pendarvis,
Petitioner
P.O.
Box 1621
Brandon,
FL 33509-1621
STATE OF FLORIDA
Signed
and sworn before me this 25th
day of March, 2002, by Lawrence Pendarvis, who produced a Driver’s License as
identification.
_____________________________
NOTARY PUBLIC
My commission expires:
CERTIFICATE OF SERVICE
I
HEREBY CERTIFY that a copy of the foregoing has been furnished by hand delivery
this 25th day of March,
2002, to Paul Bueker, Assistant State Attorney, State Attorney’s Office, Polk
County Courthouse, Bartow, Florida; and to the Honorable Charles Lee Brown,
Judge of the Tenth Judicial Circuit, Polk County Courthouse, Bartow, Florida.
_______________________________
Lawrence
Pendarvis,
Petitioner
P.O.
Box 1621
Brandon,
FL 33509-1621
CERTIFICATE OF COMPLIANCE
This Petition is
set in a Times New Roman 14-point font.
______________________________
Lawrence
Pendarvis,
Petitioner
P.O. Box 1621
Brandon, FL 33509-1621