BUNKLEY v. FLORIDA

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835 OCTOBER TERM, 2002
Syllabus
BUNKLEY v. FLORIDA
on petition for writ of certiorari to the supreme
court of florida
No. 02–8636. Decided May 27, 2003
Petitioner Bunkley had a pocketknife with a 21⁄ 2- 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 re-
mained 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 33⁄ 4-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 convic-
tion was invalid under L. B. because his pocketknife was shorter than
33⁄ 4 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 pocket-
knife at the time his conviction became final. The result here is con-
trolled 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 certi-
fied question—that its interpretation merely clarified the statute’s plain
language—revealed that Fiore’s conviction violated due process, be-
cause a State cannot convict a person without proving each element of
the crime beyond a reasonable doubt. Application of Fiore’s due proc-
ess principles may render a retroactivity analysis unnecessary here.
Fiore requires the Florida Supreme Court to answer whether, in light
of L. B., Bunkley’s 21⁄ 2- to 3-inch pocketknife fit within the state statute’s
“common pocketknife” exception at the time his conviction became final.

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836 BUNKLEY v. FLORIDA
Per Curiam
Because the L. B. decision cast doubt on the validity of Bunkley’s convic-
tion 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 Bunk-
ley’s conviction violates the due process principles set forth in Fiore.
Certiorari granted; 833 So. 2d 739, vacated and remanded.
Per Curiam.
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 pocket-
knife 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.
I
In the early morning hours of April 16, 1986, Bunkley bur-
glarized 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 2 1 ⁄ 2 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 be-
cause he was armed with a “dangerous weapon”—namely,
the pocketknife. Fla. Stat. § 810.02(2)(b) (2000). The pun-
ishment for burglary in the first degree is “imprisonment

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837 Cite as: 538 U. S. 835 (2003)
Per Curiam
for a term of years not exceeding life imprisonment.”
§ 810.02(2). If the pocketknife had not been classified as a
“dangerous weapon,” Bunkley would have been charged with
burglary in the third degree. See 833 So. 2d 739, 742 (Fla.
2002). Burglary in the third degree is punishable “by a
term of imprisonment not exceeding 5 years.” Fla. Stat.
§ 775.082(3)(d) (2002); see also 833 So. 2d, at 742. Bunkley
was convicted of burglary in the first degree. He was sen-
tenced to life imprisonment. In 1989, a Florida appellate
court affirmed Bunkley’s conviction and sentence. See 539
So. 2d 477.
Florida law defines a “ ‘[w]eapon’ ” to “mea[n] any dirk,
metallic knuckles, slingshot, billie, tear gas gun, chemical
weapon or device, or other deadly weapon except a firearm
or a common pocketknife.” § 790.001(13). Florida has ex-
cepted the “ ‘common pocketknife’ ” from its weapons statute
since 1901, and the relevant language has remained un-
changed since that time. See 833 So. 2d, at 743.
In 1997, the Florida Supreme Court interpreted the mean-
ing of the “common pocketknife” exception for the first time.
In L. B. v. State, 700 So. 2d 370, 373 (per curiam), the court
determined that a pocketknife with a blade of 33 ⁄ 4 inches
“plainly falls within the statutory exception to the definition
of ‘weapon’ found in section 790.001(13).” The complete
analysis of the Florida Supreme Court on this issue was as
follows: “In 1951, the Attorney General of Florida opined
that a pocketknife with a blade of four inches in length or
less was a ‘common pocketknife.’ The knife appellant car-
ried, which had a 33 ⁄ 4-inch blade, clearly fell within this
range.” Ibid. (citation omitted). The Florida Supreme
Court accordingly vacated the conviction in L. B. because
the “knife in question was a ‘common pocketknife’ under any
intended definition of that term.” Ibid. Justice Grimes,
joined by Justice Wells, wrote an opinion agreeing with the
majority’s resolution of the case “[i]n view of the Attorney
General’s opinion and the absence of a more definitive de-
scription of a common pocketknife.” Ibid.

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838 BUNKLEY v. FLORIDA
Per Curiam
After the Florida Supreme Court issued its decision in
L. B., Bunkley filed a motion for postconviction relief under
Florida Rule of Criminal Procedure 3.850 (1999). Bunkley
alleged that under the L. B. decision, his pocketknife could
not have been considered a “weapon” under § 790.001(13).
He therefore argued that his conviction for armed bur-
glary was invalid and should be vacated because a “common
pocketknife can not [sic] support a conviction involving
possession of a weapon.” App. to Pet. for Cert. C–2. The
Circuit Court rejected Bunkley’s motion, and the District
Court of Appeal of Florida, Second District, affirmed. 768
So. 2d 510 (2000).
The Florida Supreme Court also rejected Bunkley’s claim.
It held that the L. B. decision did not apply retroactively.
Under Florida law, only “jurisprudential upheavals” will be
applied retroactively. 833 So. 2d, at 743 (internal quotation
marks omitted). The court stated that a “jurisprudential
upheaval is a major constitutional change of law.” Id., at
745 (internal quotation marks omitted). By contrast, any
“evolutionary refinements” in the law “are not applied retro-
actively.” Id., at 744. The court then held that L. B. was
an evolutionary refinement in the law, and therefore Bunkley
was not entitled to relief. In a footnote, the Florida Su-
preme Court cited our decision in Fiore v. White, supra, and
held without analysis that Fiore did not apply to this case.
See 833 So. 2d, at 744, n. 12.*
*The dissent claims that the Florida Supreme Court did not need to
decide anything other than whether L. B. was a change in the law. See
post, at 845 (citing Fla. Rule Crim. Proc. 3.850(b)(2) (2000)). Yet as the
dissent concedes, see post, at 843, the Florida Supreme Court passed upon
the Fiore due process inquiry as well as the retroactivity question. The
dissent also notes that Bunkley has raised the issue of the common pocket-
knife in prior appeals. These appeals, however, were filed prior to the
Florida Supreme Court’s opinion in L. B. And we agree with the dissent
that absent the L. B. decision, Bunkley would not be able to pursue his
claim now. The Florida Supreme Court committed an error of law here
by not addressing whether the L. B. decision means that at the time Bunk-

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Per Curiam
Justice Pariente, joined by Chief Justice Anstead, dis-
sented. She stated that the Florida Supreme Court’s deci-
sion in L. B. “should be applied to grant Bunkley collateral
relief.” 833 So. 2d, at 746. She criticized the majority opin-
ion for relying solely on a retroactivity question. In her
view, “application of the due process principles of Fiore ren-
ders a retroactivity analysis . . . unnecessary.” Id., at 747.
She noted that even if L. B. was merely an evolutionary re-
finement of the law, “the majority offers no precedent laying
out the stages of this evolution.” 833 So. 2d, at 747. Be-
cause she thought the L. B. decision “correctly stated the
law at the time Bunkley’s conviction became final,” she
would have vacated Bunkley’s conviction. 833 So. 2d, at 747.
II
Fiore v. White involved a Pennsylvania criminal statute
that the Pennsylvania Supreme Court interpreted for the
first time after the defendant Fiore’s conviction became final.
See 531 U. S., at 226. Under the Pennsylvania Supreme
Court’s interpretation of the criminal statute, Fiore could
not have been guilty of the crime for which he was convicted.
See id., at 227–228. We originally granted certiorari in
Fiore to consider “when, or whether, the Federal Due Proc-
ess Clause requires a State to apply a new interpretation of
a state criminal statute retroactively to cases on collateral
review.” Id., at 226. “Because we were uncertain whether
the Pennsylvania Supreme Court’s decision . . . represented
a change in the law,” we certified a question to the Pennsyl-
vania Supreme Court. Id., at 228. This question asked
whether the Pennsylvania Supreme Court’s interpretation of
the statute “ ‘state[d] the correct interpretation of the law of
Pennsylvania at the date Fiore’s conviction became final.’ ”
Ibid.
ley was convicted, he was convicted of a crime—armed burglary—for
which he may not be guilty. Therefore, Michigan v. Long, 463 U. S. 1032
(1983), has no applicability here.

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840 BUNKLEY v. FLORIDA
Per Curiam
When the Pennsylvania Supreme Court replied that the
ruling “ ‘merely clarified the plain language of the statute,’ ”
ibid., the question on which we originally granted certiorari
disappeared. Pennsylvania’s answer revealed the “simple,
inevitable conclusion” that Fiore’s conviction violated due
process. Id., at 229. It has long been established by this
Court that “the Due Process Clause . . . forbids a State to
convict a person of a crime without proving the elements
of that crime beyond a reasonable doubt.” Id., at 228–229.
Because Pennsylvania law—as interpreted by the later State
Supreme Court decision—made clear that Fiore’s conduct
did not violate an element of the statute, his conviction did
not satisfy the strictures of the Due Process Clause. Conse-
quently, “retroactivity [was] not at issue.” Id., at 226.
Fiore controls the result here. As Justice Pariente stated
in dissent, “application of the due process principles of Fiore”
may render a retroactivity analysis “unnecessary.” 833
So. 2d, at 747. The question here is not just one of retro-
activity. Rather, as Fiore holds, “retroactivity is not at
issue” if the Florida Supreme Court’s interpretation of the
“common pocketknife” exception in L. B. is “a correct state-
ment of the law when [Bunkley’s] conviction became final.”
531 U. S., at 226. The proper question under Fiore is not
whether the law has changed. Rather, Fiore requires that
the Florida Supreme Court answer whether, in light of
L. B., Bunkley’s pocketknife of 21 ⁄ 2 to 3 inches fit within
§ 790.001(13)’s “common pocketknife” exception at the time
his conviction became final.
Although the Florida Supreme Court has determined that
the L. B. decision was merely an “evolutionary refinement”
in the meaning of the “common pocketknife” exception, it has
not answered whether the law in 1989 defined Bunkley’s 21 ⁄ 2-
to 3-inch pocketknife as a “weapon” under § 790.001(13). Al-
though the L. B. decision might have “culminat[ed] . . . [the]
century-long evolutionary process,” the question remains
about what § 790.001(13) meant in 1989. 833 So. 2d, at 745.

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Per Curiam
If Bunkley’s pocketknife fit within the “common pocketknife”
exception to § 790.001(13) in 1989, then Bunkley was con-
victed of a crime for which he cannot be guilty—burglary in
the first degree. And if the “stages” of § 790.001(13)’s “ev-
olution” had not sufficiently progressed so that Bunkley’s
pocketknife was still a weapon in 1989, this case raises the
issue left open in Fiore.
It is true that the Florida Supreme Court held Fiore inap-
plicable because the L. B. decision was a change in the law
which “culminat[ed] [the] century-long evolutionary process.”
833 So. 2d, at 745. As the dissent acknowledges, however,
see post, at 843, n. 1, the Florida Supreme Court’s decision
in L. B. cast doubt on the validity of Bunkley’s conviction.
For the first time, the Florida Supreme Court interpreted
the common pocketknife exception, and its interpretation
covered the weapon Bunkley possessed at the time of his
offense. In the face of such doubt, Fiore entitles Bunkley to
a determination as to whether L. B. correctly stated the com-
mon pocketknife exception at the time he was convicted.
Ordinarily, the Florida Supreme Court’s holding that L. B.
constitutes a change in—rather than a clarification of—the
law would be sufficient to dispose of the Fiore question. By
holding that a change in the law occurred, the Florida Su-
preme Court would thereby likewise have signaled that the
common pocketknife exception was narrower at the time
Bunkley was convicted.
Here, however, the Florida Supreme Court said more. It
characterized L. B. as part of the “century-long evolutionary
process.” 833 So. 2d, at 745. Because Florida law was in a
state of evolution over the course of these many years, we
do not know what stage in the evolutionary process the law
had reached at the time Bunkley was convicted. The Flor-
ida Supreme Court never asked whether the weapons stat-
ute had “evolved” by 1989 to such an extent that Bunkley’s
2 1 ⁄ 2- to 3-inch pocketknife fit within the “common pocket-
knife” exception. The proper question under Fiore is not

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842 BUNKLEY v. FLORIDA
Rehnquist, C. J., dissenting
just whether the law changed. Rather, it is when the law
changed. The Florida Supreme Court has not answered
this question; instead, it appeared to assume that merely
labeling L. B. as the “culmination” in the common pocket-
knife exception’s “century-long evolutionary process” was
sufficient to resolve the Fiore question. 833 So. 2d, at 745.
It is not. Without further clarification from the Florida Su-
preme Court as to the content of the common pocketknife
exception in 1989, we cannot know whether L. B. correctly
stated the common pocketknife exception at the time he
was convicted.
On remand, the Florida Supreme Court should consider
whether, in light of the L. B. decision, Bunkley’s pocketknife
of 21 ⁄ 2 to 3 inches fit within § 790.001(13)’s “common pocket-
knife” exception at the time his conviction became final.
The judgment of the Supreme Court of Florida, accordingly,
is vacated, and the case is remanded for further proceedings
not inconsistent with this opinion.
It is so ordered.
Chief Justice Rehnquist, with whom Justice Ken-
nedy and Justice Thomas join, dissenting.
The Court here makes new law, and does so without
briefing or argument. In Fiore v. White, 528 U. S. 23, 29
(1999), we granted certiorari to answer whether due process
requires a state court to apply a judicially announced change
in state criminal law retroactively. We realized after grant-
ing certiorari, however, that we could not answer that ques-
tion until we knew whether there had been a change in the
law at all. We therefore certified a question to the Pennsyl-
vania Supreme Court asking whether its decision in Com-
monwealth v. Scarpone, 535 Pa. 273, 279, 634 A. 2d 1109,
1112 (1993), was a change in the law from the time of the
defendant’s conviction. When the Pennsylvania Supreme
Court answered that there had been no change, we acknowl-
edged that there was no question of retroactivity left for

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Rehnquist, C. J., dissenting
us to answer. Fiore v. White, 531 U. S. 225, 226 (2001) (per
curiam).
In the present case, the Court concedes that the Florida
Supreme Court acknowledged our opinion in Fiore. The
Florida Supreme Court concluded that its decision in L. B.
v. State, 700 So. 2d 370 (1997) (per curiam), decided after
petitioner’s conviction became final, marked a change in
Florida law. 833 So. 2d 739, 744, n. 12 (2002).1 The state
court therefore considered whether the change should be ap-
plied retroactively, and concluded that it should not be.
The Court recognizes, as it must, that the Florida Su-
preme Court concluded that L. B. was a change in the law
from the time of petitioner’s conviction. Ante, at 841 (“It is
true that the Florida Supreme Court held . . . [that] the L. B.
decision was a change in the law”). Yet the Court criticizes
the Florida Supreme Court for thinking that conclusion “suf-
ficient to dispose of the Fiore question.” Ibid. The Court
acknowledges that “[o]rdinarily, the Florida Supreme Court’s
holding that L. B. constitutes a change in—rather than a clar-
ification of—the law would be sufficient to dispose of the
Fiore question,” but then holds that, because the Florida Su-
preme Court “characterized L. B. as part of the ‘century-long
evolutionary process,’ ” Fiore requires that court to answer
an additional question: whether petitioner’s knife fit within
the “ ‘common pocketknife’ ” exception at the time of his con-
viction. Ante, at 841.
Fiore requires no such thing. Fiore asked whether a
change had occurred and, upon finding that none had, ended
the inquiry. The Court here goes much further. It ac-
knowledges that L. B. neither clarified the law that was in
existence at the time of petitioner’s conviction nor changed
the law with retroactive effect. Yet it nonetheless insists
1 Petitioner presents strong arguments in favor of his view that the
bright-line rule set out in L. B. existed as a matter of Florida law at the
time of his conviction. Pet. for Cert. 6. But the Florida Supreme Court
concluded otherwise, and we may not revisit that question.

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844 BUNKLEY v. FLORIDA
Rehnquist, C. J., dissenting
that the Florida Supreme Court reevaluate the sufficiency of
the evidence in this case. See ante, at 840, 842 (holding that
Florida Supreme Court must answer whether “Bunkley’s
pocketknife . . . fit within [Fla. Stat.] § 790.001(13)’s ‘common
pocketknife’ exception at the time his conviction became
final”). The Court announces this conclusion as a matter of
“Fiore” without explaining why due process requires it.
The Court’s holding is a new one, and its criticism of the
state court for failing to anticipate this holding is unjus-
tified.2 The Florida Supreme Court, moreover, has es-
sentially answered the question on which the Court now
remands.3
The Court’s decision to expand Fiore is not only new, it
also unjustifiably interferes with States’ interest in finality.
The Florida courts have already considered several times the
question this Court now asks them to answer. On direct
appeal, petitioner specifically argued that a knife with a
2 The Court further criticizes the Florida Supreme Court for its work-
manship in the decision under review. Thus, while it recognizes the Flor-
ida court’s conclusion that L. B. did not state the law at the time of peti-
tioner’s conviction, the Court reprimands the Florida court for failing to
reach its holding in a sufficiently clear manner. See, e. g., ante, at 842
(“Without further clarification from the Florida Supreme Court . . . we
cannot know whether L. B. correctly stated the common pocketknife ex-
ception at the time [petitioner] was convicted”). This rebuke to the state
court violates the well-established rule that this Court will not “require
state courts to reconsider cases to clarify the grounds of their decisions.”
Michigan v. Long, 463 U. S. 1032, 1040 (1983); see also id., at 1041 (noting
the Court’s desire to “avoi[d] the unsatisfactory and intrusive practice of
requiring state courts to clarify their decisions to the satisfaction of this
Court”).
3 The state court explained that “[a]lthough some courts” prior to L. B.
“may have interpreted ‘common pocketknife’ contrary to the holding in
L. B., each court nevertheless sought to comply with legislative intent and
to rule in harmony with the law as it was interpreted at that point in
time.” 833 So. 2d 739, 745 (Fla. 2002). Thus, the court explained, “none
of the convictions imposed pursuant to section 790.001(13) violated the
Due Process Clause.” Ibid.

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Rehnquist, C. J., dissenting
blade of less than four inches was a “common pocketknife,”
and he cited the 1951 opinion letter issued by the Florida
Attorney General on this issue. Brief for Appellant in
No. 88–1376 (Fla. Dist. Ct. App.), pp. 5–6. Petitioner also
filed two motions for state postconviction relief challenging
the sufficiency of the evidence with respect to the jury’s con-
clusion that he was armed with a dangerous weapon. See
Motion to Set Aside or Vacate Judgment and Sentence in
No. 86–1070–CF–A–N1 (Fla. Cir. Ct.), p. 4; Petition to Invoke
“All Writs” Jurisdiction in No. 85–778 (Fla. Sup. Ct.), p. 4.4
Florida has established a 2-year period of limitations for
filing motions for postconviction relief. Florida Rule of
Criminal Procedure 3.850 “provides an exception to the two-
year time limitation for filing postconviction motions where
‘a fundamental constitutional right asserted was not estab-
lished within the period provided for herein and has been
held to apply retroactively.’ ” 768 So. 2d 510, 511 (Fla. App.
2000) (per curiam) (quoting Fla. Rule Crim. Proc. 3.850(b)(2)
(2000)). The Court’s decision here overrides Florida’s Rule,
authorizing claims for postconviction relief where there has
been a change in the law that has specifically been held not
to apply retroactively.
The Court’s holding expanding Fiore is striking, and the
Court’s decision to adopt it summarily is even more so.
I would deny the petition for writ of certiorari.
4 Petitioner also unsuccessfully raised this claim twice in Federal Dis-
trict Court. See Report and Recommendation in No. 91–113–CIV–T–
99(B) (MD Fla.), p. 5; Memorandum of Law in Support of Petition for Writ
of Habeas Corpus under U. S. C. Section 2254 in No. 96–405–Civ.–T–24C
(MD Fla.), p. 5.

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Reporter’s Note
The next page is purposely numbered 901. The numbers between 845
and 901 were intentionally omitted, in order to make it possible to publish
the orders with permanent page numbers, thus making the official cita-
tions available upon publication of the preliminary prints of the United
States Reports.