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No. 02-8636. Decided May 27, 2003

Petitioner Bunkley had a pocketknife with a 21h- to 3-inch blade in his pocket when he was arrested as he left an unoccupied restaurant. He was charged with first-degree burglary because his knife was classified as a "dangerous weapon" under Florida law, was convicted, and was sentenced to life in prison. Had the pocketknife not been so classified, his sentence could have been no more than five years. His conviction became final in 1989. Florida has exempted the "common pocketknife" from its weapons statute since 1901, and the relevant language has remained unchanged. In 1997, in a separate case, the Florida Supreme Court interpreted the meaning of the "common pocketknife" exception for the first time, including a pocketknife with a 3%-inch blade within the exception. L. B. v. State, 700 So. 2d 370, 373. Bunkley then moved for state postconviction relief, alleging that his armed robbery conviction was invalid under L. B. because his pocketknife was shorter than 3% inches and could not therefore support a conviction involving weapon possession. The Circuit Court denied his motion, and the State District Court of Appeal affirmed. The State Supreme Court rejected Bunkley's claim, holding that L. B. was an evolutionary refinement in the law that did not apply retroactively.

Held: The Florida Supreme Court erred in failing to determine whether the "common pocketknife" exception encompassed Bunkley's pocketknife at the time his conviction became final. The result here is controlled by Fiore v. White, 531 U. S. 225, which involved a Pennsylvania criminal statute that the Pennsylvania Supreme Court interpreted for the first time after Fiore's conviction had already become final. Under that interpretation, Fiore's conduct did not violate an element of the statute. The Pennsylvania Supreme Court's reply to this Court's certified question-that its interpretation merely clarified the statute's plain language-revealed that Fiore's conviction violated due process, because a State cannot convict a person without proving each element of the crime beyond a reasonable doubt. Application of Fiore's due process principles may render a retroactivity analysis unnecessary here. Fiore requires the Florida Supreme Court to answer whether, in light of L. B., Bunkley's 2Y2- to 3-inch pocketknife fit within the state statute's "common pocketknife" exception at the time his conviction became final.


Per Curiam

Because the L. B. decision cast doubt on the validity of Bunkley's conviction by interpreting the exception to cover his weapon, Fiore entitles Bunkley to a determination whether L. B. correctly stated the law as it stood at the time Bunkley was convicted. The Florida Supreme Court characterized L. B. as part of a century-long evolutionary process, but did not decide what stage the law had reached by 1989. The proper question for purposes of Fiore is not just whether the law changed, but when it changed. Unless and until the State Supreme Court clarifies the exception's content in 1989, this Court cannot know whether Bunkley's conviction violates the due process principles set forth in Fiore.

Certiorari granted; 833 So. 2d 739, vacated and remanded.


Clyde Timothy Bunkley petitions for a writ of certiorari, arguing that the Florida Supreme Court contradicted the principles of this Court's decision in Fiore v. White, 531 U. S. 225 (2001) (per curiam), when it failed to determine whether the "common pocketknife" exception to Florida's definition of a "'[w]eapon'" encompassed Bunkley's pocketknife at the time that his conviction became final in 1989. Fla. Stat. § 790.001(13) (2000). We agree, and therefore grant Bunkley's motion to proceed in forma pauperis and his petition for a writ of certiorari.


In the early morning hours of April 16, 1986, Bunkley burglarized a closed, unoccupied Western Sizzlin' Restaurant. Report and Recommendation in No. 91-113-CIV-T-99(B) (MD Fla.), p. 1. The police arrested him after he left the restaurant. At the time of his arrest, the police discovered a "pocketknife, with a blade of 2lf2 to 3 inches in length, ... folded and in his pocket." 768 So. 2d 510 (Fla. App. 2000) (per curiam). "There is no evidence indicating Bunkley ever used the pocketknife during the burglary, nor that he threatened anyone with the pocketknife at any time." Ibid.

Bunkley was charged with burglary in the first degree because he was armed with a "dangerous weapon"-namely, the pocketknife. Fla. Stat. § 810.02(2)(b) (2000). The punishment for burglary in the first degree is "imprisonment

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