Suggs v. State of Florida
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT July Term 2011 CALVIN EARL SUGGS, JR., Appellant, v. STATE OF FLORIDA, Appellee. No. 4D08-2913 [October 12, 2011] ON MOTION FOR REHEARING EN BANC PER CURIAM. The motion for rehearing en banc is hereby denied. STEVENSON and GERBER, JJ., concur. WARNER, J., concurs specially. WARNER, J., concurring specially. I concur in the denial of appellant. He suggests that with Cruz v. State, 956 So. where in a footnote we said, 1248 (Fla. 1st DCA 1998): the request for rehearing en banc by the the majority decision in this case conflicts 2d 1279, 1282 n.4 (Fla. 4th DCA 2007), quoting State v. Mitchell, 719 So. 2d 1245, The Grappin/Watts test is drawn from two decisions, Grappin v. State, 450 So.2d 480 (Fla.1984), and State v. Watts, 462 So.2d 813 (Fla.1985), and stands for the proposition that when a question arises regarding the unit of prosecution intended b y the legislature in a particular criminal statute, use of the article a will result in the conclusion that the legislature clearly intended that the commission of multiple proscribed acts in the course of a single episode be prosecuted as discrete offenses; whereas use of the article any will result in the conclusion that the statute is ambiguous as to legislative intent and, as a result, in application of the rule of lenity to prohibit more than one application. Cruz, however, is factually distinguishable and did not consider Bautista v. State, 863 So. 2d 1180 (Fla. 2003), upon which the majority relies. I think the majority opinion conflicts with Grappin and Bautista. But it is not the purpose of en banc proceedings to resolve conflicts between our cases and cases from the supreme court. That is for the supreme court under its discretionary jurisdiction, should it determine that a true conflict exists. See Fla. R. App. P. 9.030(a)(2)(A)(iv). This case, however, reveals how Bautista has muddied the waters of statutory interpretation on the unit of prosecution, after Grappin had developed a clear and understandable rule which both the courts and the legislature could follow. * * * Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Okeechobee County; Sherwood Bauer, Jr., Judge; L.T. Case No. 04367CF. Calvin Earl Suggs, Jr., Clermont, pro se. Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee. 2
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