Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-1816 _____________________________ CRYSTAL HOUK, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Escambia County. Jan Shackelford, Judge. April 29, 2021 LEWIS, J. Appellant Crystal Houk challenges her convictions and sentences for animal cruelty and aggravated animal cruelty on several grounds, only one of which merits discussion. Appellant contends that because animal cruelty and aggravated animal cruelty are degree variants under section 775.021(4)(b)2., Florida Statutes (2019), her dual convictions for those crimes violate double jeopardy. We agree for the reasons that follow and, accordingly, reverse Appellant’s conviction for animal cruelty. BACKGROUND Appellant was charged with aggravated animal cruelty under section 828.12(2), Florida Statutes, (Count 1) and animal cruelty under section 828.12(1), Florida Statutes, (Count 2) following the death of her dog, Gracie May, on August 22, 2019. The evidence at trial established that, on a hot and humid day, Appellant left Gracie in her car in the parking lot, with the windows closed and without any water, while she spent over an hour in Walmart. Appellant had pressed a PVC pipe against the gas pedal to keep the car accelerating, knowing there was a problem with the air conditioner. Store employees were eventually alerted and, upon gaining entry into the vehicle, they discovered the air conditioner was blowing hot air. Gracie was in great distress at that point, panting heavily and trying to catch her breath. About fifteen minutes later, she started seizing and passed away. An animal control officer testified that Gracie died of a heat stroke. Post- mortem, the dog’s internal temperature was so elevated that the thermometer displayed a reading of “H,” indicating a temperature above 109.9 degrees Fahrenheit. The animal control officer, who investigates animal cruelty cases, testified that it was not a quick death and Gracie suffered. The jury found Appellant guilty of both offenses as charged, and the trial court adjudicated her guilty and sentenced her to concurrent terms of thirty-six months of probation on Count 1 and twelve months of probation on Count 2, each with a condition that she serve thirty days in jail. This appeal followed. ANALYSIS A double jeopardy violation constitutes fundamental error that may be raised for the first time on appeal. Johnson v. State, 150 So. 3d 214, 214 (Fla. 1st DCA 2014). We review de novo double jeopardy claims based on undisputed facts. State v. Maisonet- Maldonado, 308 So. 3d 63, 66 n.2 (Fla. 2020). Both the United States and Florida Constitutions contain double jeopardy clauses that prohibit multiple prosecutions, convictions, and punishments for the same criminal offense. Id.; see also U.S. Const. amend. V; Art. 1, § 9, Fla. Const. However, the double jeopardy clauses do not prohibit multiple punishments for different offenses arising out of the same criminal transaction if the Legislature intended to authorize separate punishments. Maisonet-Maldonado, 308 So. 3d at 66. 2 “‘[A]bsent an explicit statement of legislative intent to authorize separate punishments,” courts determine whether separate punishments for two crimes arising out of a single criminal transaction violate double jeopardy by employing the Blockburger * “same elements” test, which is codified in section 775.021(4)(a), Florida Statutes, and provides that “offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.” Id. at 66–67. If the offenses are separate, courts next look to the three exceptions to the Blockburger test set forth in section 775.021(4)(b), Florida Statutes. If one of the exceptions applies, then the dual convictions are barred. Id. at 67, 69; see also Tambriz-Ramirez v. State, 248 So. 3d 1087, 1094 (Fla. 2018). Section 775.021(4)(b), Florida Statutes (2019), provides: [(4)] (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. In applying the provisions of section 775.021, a double jeopardy analysis must be conducted without regard to the charging document or the proof adduced at trial and must, instead, involve a strict examination of “the statutory elements and the entire range of conduct proscribed” by the statutes. Tambriz- Ramirez, 248 So. 3d at 1094; see also Maisonet-Maldonado, 308 So. 3d at 68, 71. Turning to the offenses at issue, section 828.12, Florida Statutes (2019), is titled “Cruelty to animals” and provides in relevant part as follows: * Blockburger v. United States, 284 U.S. 299 (1932). 3 (1) A person who unnecessarily overloads, overdrives, torments, deprives of necessary sustenance or shelter, or unnecessarily mutilates, or kills any animal, or causes the same to be done, or carries in or upon any vehicle, or otherwise, any animal in a cruel or inhumane manner, commits animal cruelty, a misdemeanor of the first degree, punishable as provided in s. 775.082 or by a fine of not more than $5,000, or both. (2) A person who intentionally commits an act to any animal, or a person who owns or has the custody or control of any animal and fails to act, which results in the cruel death, or excessive or repeated infliction of unnecessary pain or suffering, or causes the same to be done, commits aggravated animal cruelty, a felony of the third degree, punishable as provided in s. 775.082 or by a fine of not more than $10,000, or both. (a) A person convicted of a violation of this subsection, where the finder of fact determines that the violation includes the knowing and intentional torture or torment of an animal that injures, mutilates, or kills the animal, shall be ordered to pay a minimum mandatory fine of $2,500 and undergo psychological counseling or complete an anger management treatment program. (b) A person convicted of a second or subsequent violation of this subsection shall be required to pay a minimum mandatory fine of $5,000 and serve a minimum mandatory period of incarceration of 6 months. In addition, the person shall be released only upon expiration of sentence, is not eligible for parole, control release, or any form of early release, and must serve 100 percent of the court-imposed sentence. . . . Given such, to prove the crime of animal cruelty, the State must prove that the defendant did one of the following: (a) unnecessarily overloaded, overdrove, tormented, mutilated, or killed an animal; (b) deprived an animal of necessary sustenance or shelter; or (c) carried an animal in or upon a vehicle or otherwise in a cruel or inhumane manner. Fla. Std. Jury Instr. (Crim.) 29.13(a). “Torment” or “a ‘cruel’ manner” “includes every act, omission, or neglect whereby unnecessary or unjustifiable pain or 4 suffering is caused, permitted, or allowed to continue when there is reasonable remedy or relief, except when in the interest of medical science.” Id. To prove the crime of aggravated animal cruelty, the State must prove that (1) the defendant intentionally committed an act to an animal or owned or had custody or control of an animal and failed to act and (2) the defendant’s act or failure to act resulted in either excessive or repeated infliction of unnecessary pain or suffering to the animal or the animal’s cruel death. Fla. Std. Jury Instr. (Crim.) 29.13. “Cruelty,” “[t]orture,” or “[t]orment” “includes any act, omission, or negligence whereby unnecessary or unjustifiable pain or suffering is caused, permitted, or allowed to continue when there is reasonable remedy or relief, except when done in the interest of medical science.” Id. Aggravated animal cruelty is a general intent crime—section 828.12(2) “does not require intent to be cruel, but only intent to commit the act that results in the cruelty.” Lukaszewski v. State, 111 So. 3d 212, 213 (Fla. 1st DCA 2013); see also State v. Avella, 275 So. 3d 207, 210 (Fla. 5th DCA 2019) (“[Section 828.12(2)] does not require a specific intent to cause pain, but rather punishes an intentional act that results in the excessive infliction of unnecessary pain or suffering.”). Neither animal cruelty nor aggravated animal cruelty has a category one lesser-included offense listed, and the only category two lesser of each offense is attempt. Fla. Std. Jury Instrs. (Crim.) 29.13, 29.13(a). The Fifth District has rejected the argument that the jury should be instructed on animal cruelty as a necessary lesser-included offense of aggravated animal cruelty because the standard jury instructions do not lend support for the argument and “it is conceivable that an animal could be necessarily killed in a cruel manner; this would violate subsection (2) of the statute (felony) but not subsection (1) of the statute (misdemeanor).” King v. State, 12 So. 3d 1271, 1272–73 (Fla. 5th DCA 2009); see also Johnson v. State, 293 So. 3d 582, 584 (Fla. 1st DCA 2020) (holding that the appellant was not entitled to an instruction on animal cruelty as a permissive lesser-included offense because the amended information charged aggravated animal cruelty and did not allege the essential elements of animal cruelty). 5 In light of the preceding authorities, Appellant properly concedes that the offenses of animal cruelty and aggravated animal cruelty satisfy the Blockburger same elements test and do not fall under the identical elements of proof or subsumed-within exceptions of sections 775.021(4)(b)1. and 775.021(4)(b)3., respectively. We next address Appellant’s contention that the offenses fall under the degree variant exception of section 775.021(4)(b)2. In Valdes v. State, 3 So. 3d 1067, 1068, 1071–75 (Fla. 2009), the Florida Supreme Court abandoned the “primary evil” and “core offense” tests previously used to determine whether two offenses are degree variants of the same underlying offense under section 775.021(4)(b)2. such that convictions for both violate double jeopardy and instead adopted the approach set forth by Justice Cantero in a special concurrence in State v. Paul, 934 So. 2d 1167 (Fla. 2006). Specifically, the Court held that offenses fall under section 775.021(4)(b)2. only when they “constitute different degrees of the same offense, as explicitly set forth in the relevant statutory sections.” Id. at 1068, 1076–77. “Degree,” in this context, means “a level based on the seriousness of an offense.” Id. at 1076 (providing examples of degree variants by citing Justice Cantero’s special concurrence that “[o]ne example is the theft statute, which expressly identifies three degrees of grand theft and two degrees of petit theft. See § 812.014, Fla. Stat. (2005). Another is the homicide statute, which expressly identifies three degrees of murder, as well as multiple forms of manslaughter. See id. §§ 782.04, 782.07. Yet another is arson, which has two degrees. See id. § 806.01.”). The Court added, however, that “[i]t is not necessary for the Legislature to use the word ‘degree’ in defining the crime in order for the degree variant exception to apply.” Id. “There are other statutory designations that can evince a relationship of degree-for example, when a crime may have aggravated forms of the basic offense.” Id. Accordingly, the supreme court held that Valdes’s dual convictions for discharging a firearm from a vehicle within 1,000 feet of a person, in violation of section 790.15(2), Florida Statutes, and shooting into an occupied vehicle, in violation of section 790.19, Florida Statutes, did not satisfy the section 775.021(4)(b)2. exception “because the two offenses are found in separate statutory 6 provisions; neither offense is an aggravated form of the other; and they are clearly not degree variants of the same offense.” Id. at 1077. The Court added, “This is in contrast to sections 790.15(1), 790.15(2), and 790.15(3), which are explicitly degree variants of the same offense.” Id. at 1077–78. Subsequently, the Florida Supreme Court held that driving with a suspended license (DWLS), in violation of section 322.34(2), Florida Statutes, and unlawful driving as a habitual traffic offender (HTO), in violation of section 322.34(5), Florida Statutes, are degree variant offenses under section 775.021(4)(b)2. Gil v. State, 118 So. 3d 787, 788–98 (Fla. 2013). The Court reached that conclusion “[b]ased upon the overlap and interaction” between the two provisions, reasoning that the offenses are located in the same statute, three convictions under subsection (2) within a five-year period qualifies a driver as an HTO, and the Legislature amended the statute such that “a violation of the HTO provision is always a felony, whereas a violation of the DWLS provision may be a misdemeanor or a felony depending on the number of prior convictions received by the driver.” Id. at 794–98 (explaining that suspension or revocation under subsection (2) is not based on an entirely different conduct and on a completely different criteria than a revocation under subsection (5) and that an HTO driving with a revoked license in violation of subsection (5) is a higher degree/more serious offense than a non-HTO driving with a canceled, suspended, or revoked license in violation of subsection (2)); see also Thompson v. State, 123 So. 3d 1188, 1188–89 (Fla. 4th DCA 2013) (holding that convictions for domestic battery by strangulation and felony battery, arising out of the same event against a single victim, violate double jeopardy because both offenses are aggravated forms of simple battery). Cf. Maisonet- Maldonado, 308 So. 3d at 70–71 (holding that fleeing or eluding a law enforcement officer causing serious injury or death under section 316.1935(3)(b), Florida Statutes, and vehicular manslaughter under section 782.071(1)(a), Florida Statutes, “are clearly not degree variants of each other because they do not share a common name, contain very different formal elements, and exist in completely different chapters of Florida Statutes”); State v. Marsh, 308 So. 3d 59, 63 (Fla. 2020) (concluding that the offenses of DUI with serious bodily injury and DWLS with serious bodily injury are not degree variants and reasoning that “the two offenses 7 are located in different statutes, and they are not clearly aggravated forms of one another. . . . Both may be aggravated when the driver causes serious bodily injury, . . . but each statute provides separately for that aggravation.”); Tambriz-Ramirez, 248 So. 3d at 1096 (rejecting the appellant’s argument that aggravated assault and attempted sexual battery are degree variants of burglary with an assault or battery because burglary, assault, and sexual battery are not different degrees of the same offense—they are “different offenses, prohibited by different statutes, and they criminalize different conduct”). We now turn our attention to the offenses of animal cruelty, a violation of section 828.12(1), and aggravated animal cruelty, a violation of section 828.12(2). The two offenses are found in the same statute, they share a name, and one is expressly an aggravated form of the other and carries a more serious penalty. Animal cruelty is a first-degree misdemeanor, whereas aggravated animal cruelty is a third-degree felony. As the supreme court explained in Valdes, 3 So. 3d at 1076, an aggravated form of a basic offense can evince a relationship of degree, with “degree” meaning “a level based on the seriousness of an offense.” Looking at the relationship between sections 828.12(1) and 828.12(2), the offenses are not based on entirely different conduct, both subsections criminalize the same underlying conduct of animal cruelty, and subsection (2) increases the sanction as the harm to the animal intensifies. It appears that conduct that would constitute a violation of one of the subsections would also often constitute a violation of the other. Both offenses are general intent crimes that do not require a specific intent to harm the animal; both offenses can be committed by a failure to act; and both offenses can be committed by causing unnecessary pain/suffering or death to an animal. The harm of death/killing is an express element of both offenses. The harm of unnecessary pain/suffering is an explicit element of aggravated animal cruelty only, but it is at least implicit in the elements of animal cruelty because acts of unnecessary overloading, overdriving, tormenting, or mutilating, acts of depriving of necessary sustenance or shelter, and acts of carrying in a cruel manner naturally result in unnecessary pain or suffering to that animal. Additionally, the jury instructions on animal cruelty define “torment” and “cruel” in terms of 8 unnecessary pain or suffering. Significantly though, unlike subsection (1), subsection (2) requires the unnecessary pain or suffering to be excessive or repeated or the death to be cruel. Clearly then, the Legislature requires greater harm to an animal for the offense of aggravated animal cruelty than the offense of animal cruelty and, accordingly, imposes a greater penalty for its commission. The statute further increases the penalties for aggravated animal cruelty when the violation involves knowing and intentional torture of an animal that injures, mutilates, or kills the animal or when the offense is a second or subsequent violation of subsection (2). Lastly, we note that section 828.12(3) expressly authorizes the charging of separate offenses for multiple acts of animal cruelty or aggravated animal cruelty against an animal or animal cruelty or aggravated animal cruelty against more than one animal. § 828.12(3), Fla. Stat. (“A person who commits multiple acts of animal cruelty or aggravated animal cruelty against an animal may be charged with a separate offense for each such act. A person who commits animal cruelty or aggravated animal cruelty against more than one animal may be charged with a separate offense for each animal such cruelty was committed upon.”). The designations “animal cruelty” and “aggravated animal cruelty” in the first two subsections, the provision that a failure to act can result in a violation of subsection (2), and the entirety of subsection (3) were added to section 828.12 by a 2013 amendment. Ch. 2013– 245, § 1, Laws of Fla. Nothing in the statute authorizes the charging of separate offenses or the imposition of multiple punishments when a single act against one animal satisfies both subsections (1) and (2). CONCLUSION For the foregoing reasons, we conclude that animal cruelty and aggravated animal cruelty, violations of sections 828.12(1) and 828.12(2), respectively, are degree variant offenses under section 775.021(4)(b)2. Therefore, Appellant’s dual convictions for these offenses violate the constitutional prohibition against double jeopardy. Accordingly, we reverse her conviction for the lesser offense of animal cruelty. See R.J.R. v. State, 88 So. 3d 264, 269 (Fla. 1st DCA 2012) (“When an appellate court determines that 9 dual convictions are impermissible, the appellate court should reverse the lesser offense conviction and affirm the greater.” (quoting Pizzo v. State, 945 So. 2d 1203, 1206 (Fla. 2006))). AFFIRMED in part; REVERSED in part. ROBERTS and NORDBY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Jessica J. Yeary, Public Defender, and Tyler K. Payne, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee. 10