NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
DAVID GREGORY RAYNARD BELL,
STATE OF FLORIDA,
Case No. 2D12-3202
Opinion filed October 9, 2013.
Appeal from the Circuit Court for Pinellas
County; Philip J. Federico, Judge.
Howard L. Dimmig, II, Public Defender, and
Maureen E. Surber, Assistant Public
Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and John M. Klawikofsky,
Assistant Attorney General, Tampa, for
David Gregory Raynard Bell seeks review of his convictions and
sentences for one count of felon in possession of a firearm and one count of felon in
possession of ammunition, contending that the dual convictions violate double jeopardy.
Applying the "a/any test" for statutory construction set forth in Grappin v. State, 450 So.
2d 480 (Fla. 1984), and State v. Watts, 462 So. 2d 813 (Fla. 1985), to the statutory
language at issue, we agree that both convictions cannot stand.
Bell was stopped for a traffic violation, and during that stop an officer
determined that Bell was driving in violation of certain restrictions on his driver's license.
Pursuant to Bell's arrest for this violation, the officer searched him and found a speed
loader containing six rounds of live ammunition in Bell's pocket. A subsequent search
of the vehicle Bell was driving revealed a loaded handgun in the glove compartment.
The State charged Bell with one count of felon in possession of a firearm
based on Bell's possession of the handgun and one count of felon in possession of
ammunition based on Bell's possession of the ammunition in the speed loader. Bell
subsequently pleaded no contest to both charges, and the trial court sentenced him to
concurrent terms of twenty-four months in prison. Bell now contends, his pleas
notwithstanding, that the dual convictions violate double jeopardy.1
Both of Bell's convictions are for violations of section 790.23(1), Florida
Statutes (2011), which provides, in pertinent part:
(1) It is unlawful for any person to own or to have in
his or her care, custody, possession, or control any firearm,
ammunition, or electric weapon or device, or to carry a
concealed weapon, including a tear gas gun or chemical
weapon or device, if that person has been:
(a) Convicted of a felony in the courts of this state[.]
(Emphasis added.) The question here is whether the use of the term "any" before the
list of prohibited items precludes separate convictions for the simultaneous possession
of two separate items.
Because a double jeopardy violation constitutes fundamental error, Bell
may raise this argument for the first time on appeal. Gisi v. State, 848 So. 2d 1278,
1281 (Fla. 2d DCA 2003); Johnson v. State, 747 So. 2d 1027, 1028 (Fla. 2d DCA 1999).
In Grappin, the defendant was charged with five counts of grand larceny
after he stole five separate firearms during a single burglary. 450 So. 2d at 481. The
applicable statute read:
(b) It is grand theft of the second degree and a felony
of the third degree, punishable as provided in ss. 775.082,
775.083, and 775.084, if the property stolen is:
3. A firearm.
Id. (quoting § 812.014(2)(b)(3), Fla. Stat. (1981)). Grappin argued that the multiple
charges violated double jeopardy, but the supreme court disagreed, reasoning that "the
use of the article 'a' in reference to 'a firearm' in section 812.014(2)(b)3 clearly shows
that the legislature intended to make each firearm a separate unit of prosecution." Id. at
482. The supreme court contrasted the use of the article "a" with the use of the article
"any" and pointed out that federal courts had held that the use of "the term 'any firearm'
is ambiguous with respect to the unit of prosecution." Id. (citing United States v.
Rosenbarger, 536 F.2d 715 (6th Cir. 1976); United States v. Kinsley, 518 F.2d 665 (8th
Cir. 1975)). Referring to the rule of lenity, the court noted that if the legislature does not
describe the prohibited conduct without ambiguity, "the ambiguity is to be resolved
against turning a single transaction into multiple offenses." Id. However, when
"legislative intent as to punishment is clear, . . . the rule of lenity does not apply." Id.
Thus, because the statute under which Grappin was charged clearly referred to "a
firearm" as the unit of prosecution, the supreme court reversed the order dismissing the
original multi-count complaint and remanded to allow the State to prosecute Grappin on
five separate charges.
While the Grappin decision was pending, the defendant in Watts
challenged his convictions for two counts of possession of prison-made knives that
arose out of a single criminal episode, arguing that the dual convictions were improper.
462 So. 2d at 813. However, unlike the statute at issue in Grappin, the statute under
which Watts was charged provided in relevant part:
(1)(a) Except through regular channels as authorized
by the officer in charge of the correctional institution, it is
unlawful to introduce into or upon the grounds of any state
correctional institution, or to take or attempt to take or send
therefrom, any of the following articles which are hereby
declared to be contraband for the purposes of this section, to
5. Any firearm or weapon of any kind or any
(c) It is unlawful for any inmate of any state
correctional institution or any person while upon the grounds
of any state correctional institution to be in actual or
constructive possession of any article or thing declared by
this section to be contraband, except as authorized by the
officer in charge of such correctional institution.
Id. at 814 (quoting § 944.47, Fla. Stat. (1981)). The First District held that Watts could
be convicted of only one charge, see Watts v. State, 440 So. 2d 505 (Fla. 1st DCA
1983), and the State appealed. Applying the "a/any test" from Grappin, the supreme
court looked at the applicable statutory language and concluded that the use of the term
"any" in section 944.47 rendered the unit of prosecution ambiguous. 462 So. 2d at 814.
Thus the court held that the State was precluded from convicting Watts of separate
offenses for possession of two knives at the same time, and it reversed and remanded
for the trial court to vacate one of Watts' convictions. Id.
Recently, in Boyd v. State, 17 So. 3d 812 (Fla. 4th DCA 2009), the Fourth
District applied the "a/any test" in the context of a case that is quite similar to Bell's.
There, officers obtained a search warrant for Boyd's home. Id. at 814. Inside, they
found a loaded .357 firearm next to the bed. Id. They also found ammunition for a 9mm
firearm on a shelf in a closet. Id. The State charged Boyd with one count of felon in
possession of a firearm and a separate count of felon in possession of ammunition
under section 790.23(1), Florida Statutes (2005). Id. at 813. Boyd was subsequently
convicted of both charges, and on appeal he argued that the dual convictions violated
double jeopardy. Id. at 815. In reversing and remanding for the trial court to vacate one
of the convictions, the Fourth District "determined that because the word 'any' precedes
the list of items a felon is prohibited from possessing, 'the prohibition against double
jeopardy precludes more than one conviction for the possession at the same time of
multiple firearms by a convicted felon.' " Id. at 818 (quoting Hill v. State, 711 So. 2d
1221, 1224-25 (Fla. 1st DCA 1998)). And while the court recognized that Boyd had not
possessed multiple firearms, it noted that because ammunition was also listed after the
word "any" in the statute, the simultaneous possession of both a firearm and
ammunition could not support separate convictions. Id. See also Strain v. State, 77 So.
3d 796, 797 (Fla. 4th DCA 2011) (following Boyd on similar facts relating to convictions
for possession of a firearm and separate ammunition).
In this case, as in Boyd and Strain, the applicable statute prohibits Bell's
possession of "any firearm, ammunition, or electric weapon or device." § 790.23(1).
The statute does not define "any"; however, the word "any" is generally defined as "one,
some, every, or all without specification." American Heritage Dictionary of the English
Language 81 (4th ed. 2000). Thus, by definition the word "any" is linguistically
ambiguous. In the face of this ambiguity, we are required to construe the statute in the
manner most favorable to Bell, see § 775.021(1), Fla. Stat. (2011), and doing so
prohibits Bell's dual convictions. While we do not believe that the legislature necessarily
intended this result in this type of situation, we note that the legislature has not changed
the statutory language in the almost thirty years since Grappin and Watts were decided,
and we are powerless to rewrite it ourselves. Therefore, as our sister districts did in
Boyd and Strain, we reverse Bell's dual convictions and remand to the trial court for it to
vacate one of the convictions and resentence Bell accordingly.
Reversed and remanded for further proceedings.
NORTHCUTT and SLEET, JJ., Concur.