PATRICK GAMMAGE

v.

STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

PATRICK GAMMAGE, ) ) Appellant, ) ) v. ) Case No. 2D18-2954 ) STATE OF FLORIDA, ) ) Appellee. ) ) Opinion filed August², 2019. Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for DeSoto County; Don T. Hall, Judge. Robert David Malove of Law Office of Robert David Malove, P.A., Fort Lauderdale, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Kelly O'Neill, Assistant Attorney General, Tampa, for Appellee. VILLANTI, Judge. Patrick Gammage appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In that motion, Gammage raised a single claim, contending that his convictions for three counts of attempted tampering with jurors violate double jeopardy. Because all of the actions at issue here occurred during a single criminal episode and did not constitute distinct acts, only one conviction was proper. Therefore, we reverse two of Gammage's three convictions and remand for the postconviction court to resentence Gammage using a corrected scoresheet. The background facts, as reflected in both the record and this court's opinion of December 30, 2015, establish that Gammage was charged with several drug offenses that were set for trial on October 23, 2013. On that date, Gammage gave his girlfriend and another friend a stack of flyers to hand out to prospective jurors as they were arriving at the DeSoto County courthouse in Arcadia for jury duty.¹ Gammage's case was scheduled for that day as what is colloquially known as a "pick and go." notified the trial court. Gammage's trial on the drug charges was continued, and the State filed three new charges against Gammage for tampering with jurors in violation of section 918.12, Florida Statutes (2013). At Gammage's trial on the tampering charges, the evidence showed that three prospective jurors were approached in the parking lot and on the sidewalks leading up to the courthouse all within approximately twenty minutes of each other. Once the time for prospective jurors to arrive at the courthouse had passed, Gammage's girlfriend stopped attempting to hand out flyers. And after Gammage's drug trial was continued, she did not attempt to hand out flyers again, whether after a lunch break or on another day. Based on this evidence, the jury convicted Gammage of all three counts of tampering with jurors, and he was sentenced to three consecutive terms of five years in prison. On direct appeal, this court determined that convictions for the completed offense were improper. Therefore, we reversed the convictions and remanded for entry of convictions for attempted tampering with jurors. See Gammage v. State, 181 So. 3d 1256 (Fla. 2d DCA 2015). Gammage did not raise the double jeopardy issue in that appeal. On remand, the trial court entered an amended judgment and resentenced Gammage to the same sentences he had received previously. Gammage appealed his new sentences, and this court affirmed without opinion. See Gammage v. State, 231 So. 3d 1255 (Fla. 2d DCA 2017) (table decision). Gammage did not raise the double jeopardy issue in that appeal either.

Gammage then filed a timely rule 3.850 motion, raising as his sole issue the argument that his three convictions for attempted tampering with jurors violated double jeopardy because, under the "a/any" test, the statute was ambiguous and so only one conviction was permitted for all tampering that occurred in a single criminal episode. See Grappin v. State, 450 So. 2d 480, 482 (Fla. 1984) (explaining the "a/any" test and noting that a statute that criminalizes the act of taking "any firearm" is ambiguous such that only one prosecution will be permitted for all firearms taken in a single episode). The State filed a response arguing that even if the "a/any" test limited the number of prosecutions for all tampering in a single episode, Gammage's convictions should be affirmed because his girlfriend's approach to each prospective juror should be considered a separate criminal episode. The postconviction court agreed with the State and summarily denied the motion. Gammage now appeals this ruling. As an initial matter, it is settled law that a claim that a defendant's convictions violate double jeopardy may be raised under rule 3.850, even when the defendant could have raised the issue in a direct appeal from his judgment and sentence. See Plowman v. State, 586 So. 2d 454, 455 (Fla. 2d DCA 1991) (citing State v. Johnson, 483 So. 2d 420, 422 (Fla. 1986)); see also Gardner v. State, 30 So. 3d 629, 630 (Fla. 2d DCA 2010), disapproved of on other grounds by Dunbar v. State, 89 So. 3d 901, 905-07 (Fla. 2012). Hence, despite the fact that Gammage filed two earlier appeals in which he could have raised the double jeopardy issue he now raises, the issue is not procedurally barred and so was properly considered on its merits by the postconviction court.

Turning to those merits, the question before this court is whether Gammage's three convictions for attempted tampering with jurors violate double jeopardy. To properly address this question, we must first determine, if possible, the legislature's intent under the language of section 918.12. If the statutory language clearly shows that the legislature intended to permit a separate prosecution for the tampering with each individual juror, then Gammage's three convictions should be affirmed. If, however, the statutory language is too ambiguous to permit a determination of legislative intent, the rule of lenity would require that approaches to multiple jurors in a single criminal episode be punished only once. And if that is the case, we must next determine whether Gammage's girlfriend's acts occurred during a single criminal episode. If so, we must then determine whether her acts constituted "distinct acts" during the course of that single episode. If the convictions all arose during a single criminal episode and if they are not predicated on distinct acts, two of Gammage's three convictions must be reversed. See, e.g., Partch v. State, 43 So. 3d 758, 760 (Fla. 1st DCA 2010) ("[I]n order to determine if appellant's convictions violate double jeopardy, we must first ascertain if the charges were based on an act or acts which occurred within the same criminal transaction and/or episode. If the charge did occur during the same transaction or episode, we must then determine if the convictions were predicated on distinct acts.").

1.

Unit of Prosecution As mentioned above, our first task is to determine whether the language of section 918.12 allows us to determine the applicable unit of prosecution intended by the legislature. Essentially, we must try to determine whether the legislature intended for a defendant to be separately prosecuted for tampering with each individual juror or whether tampering with any juror—whether it be one or more—constitutes the completed offense such that only one offense occurs whether the defendant tampers with, e.g., one, two, five, or ten individual jurors in a single episode. The parties focused their arguments on this issue on the "a/any" test first set out in Grappin. This court has explained the "a/any" test as follows: "When the article 'a' is used by the [l]egislature in the text of the statute, the intent of the [l]egislature is clear that each discrete act constitutes an allowable unit of prosecution." McKnight [v. State], 906 So. 2d [368] at 371 [(Fla. 5th DCA 2005)]. On the other hand, "[u]se of the adjective 'any' indicates an ambiguity that may require application of the rule of lenity." Id. at 372. Edwards v. State, 268 So. 3d 849, 852 (Fla. 2d DCA 2019) (alterations in original). However, the "a/any" test is not a definitive test in and of itself. Instead, as the supreme court has explained: Our purpose in construing a statutory provision is to give effect to legislative intent. Legislative intent is the polestar that guides a court's statutory construction analysis. State v. J.M., 824 So. 2d 105, 109 (Fla. 2002). In attempting to discern legislative intent, we first look to the actual language used in the statute. Joshua v. City of Gainesville, 768 So. 2d 432, 435 (Fla. 2000). If the statutory language is unclear, we apply rules of statutory construction and explore legislative history to determine legislative intent. Id.; Weber v. Dobbins, 616 So. 2d 956, 958 (Fla. 1993). "To discern legislative intent, courts must consider the statute as a whole, including the evil to be corrected, the language, title,

and history of its enactment, and the state of law already in existence on the statute." State v. Anderson, 764 So. 2d 848, 849 (Fla. 3d DCA 2000) (citing McKibben v. Mallory, 293 So. 2d 48, 52 (Fla. 1974)). Bautista v. State, 863 So. 2d 1180, 1185-86 (Fla. 2003). Hence, the "a/any" test is simply one "valid linguistic tool that is helpful in establishing the Legislature's intended unit of prosecution." Id. at 1188. Ultimately, the court must consider the "a/any" test together with the other rules of statutory construction, and if it nevertheless cannot determine the meaning of the statute from its wording or legislative history, then the statute must be construed in favor of the defendant. Id. at 1185 (citing Wallace v. State, 724 So. 2d 1176 (Fla. 1998), and Ladner v. United States, 358 U.S. 169 (1958)). And in the case of multiple convictions under the same statute, construing the statute in favor of the defendant means that only one conviction can stand. "If there is ambiguity [in the language of the statute], . . . the rule of lenity applies to resolve the ambiguity against turning a single transaction into multiple offenses." Id. at 1183. In this case, looking first at the language of the statute, it provides: 918.12—Tampering with jurors. Any person who influences the judgment or decision of any grand or petit juror on any matter, question, cause, or proceeding which may be pending, or which may by law be brought, before him or her as such juror, with intent to obstruct the administration of justice, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. § 918.12 (emphasis added.) Under the "a/any" test as set out by Grappin and explained in Bautista and Wallace, because the statute refers to influencing the judgment of "any . . . juror," the statute is ambiguous, and this ambiguity must be resolved in favor of the defendant. Therefore, applying the "a/any" test to the statutory language at issue here, Gammage could be prosecuted only once regardless of the number of jurors with whom he attempted to tamper during a single criminal episode. In its brief in this appeal, the State contends that the subsequent language in the statute referring to a case pending "before him or her as such juror" clarifies the legislature's intent and demonstrates that the legislature intended that tampering with each individual juror constitute a separate offense. However, as Gammage points out in his reply brief, the title of the statute is "tampering with jurors." Had the legislature intended to permit a prosecution for each individual juror, it would have titled the offense "tampering with a juror." These discrepancies in the language throughout this relatively short statute tend only to muddy the underlying intent. The statute's title referring to "jurors" and its language regarding influencing "any juror" logically seem to indicate that only one prosecution is permissible regardless of the number of jurors involved, while the language regarding a case pending before "him or her as such juror" conversely seems to indicate that the State may separately prosecute a defendant for each individual juror with whom he has tampered. Because the statutory language raises more questions than it answers about what the legislature actually intended, the rule of lenity requires this court to interpret the statute in a manner most beneficial to the defendant. And, in this context, interpreting the statute in the manner most beneficial to Gammage precludes turning a single act into multiple convictions. Moreover, the language in the statute describing its intent also tends to support a determination that the legislature intended only one prosecution regardless of the number of jurors involved. The mens rea component of the statute provides that its intent is to prevent obstruction of the administration of justice. This can be accomplished by a defendant whether he or she tampers with one juror or multiple jurors. Hence, this portion of the statutory language also tends to support a conclusion that a defendant commits only one offense regardless of the number of jurors tampered with during a single criminal episode. Finally, section 918.12 was last amended in 1997, thirteen years after the supreme court set forth the "a/any" test in Grappin, see ch. 97-102, § 1540, Laws of Fla.; yet the legislature did not clarify this language in response to the Grappin decision, nor has it taken any steps to do so since. The supreme court has held that "[t]he Legislature is presumed to know the judicial constructions of a law when amending that law, and the Legislature is presumed to have adopted prior judicial constructions of a law unless a contrary intention is expressed." Zommer v. State, 31 So. 3d 733, 754 (Fla. 2010) (alteration in original) (quoting Fla. Dep't of Children & Families v. F.L., 880 So. 2d 602, 609 (Fla. 2004)). While the courts have not specifically construed the tampering statute under the "a/any" test, courts have done so with multiple other statutes. Nevertheless, the legislature has not taken any steps to amend the tampering statute, even with the presumed knowledge that it would be subject to judicial construction under the "a/any" test. Since the legislature has not amended section 918.12 in the twenty-five years since the Grappin decision issued, it can be safely presumed that the legislature agrees with the court's application of the "a/any" test and understands and accepts the interpretation of the tampering statute that will result from its application. And as noted, this application results in a determination that only one offense occurs regardless of the number of jurors tampered with in a single criminal episode.

Hence, because the conflicts in the statutory language render it ambiguous as to the intended unit of prosecution, the rule of lenity requires this court to conclude that only one prosecution will be permitted regardless of the number of jurors tampered with in a single criminal episode. Therefore, we must next consider whether Gammage's girlfriend's approach to each prospective juror constituted a separate criminal episode and, if so, whether each approach constituted a distinct act that would permit multiple punishments.