Bunkley v. Florida, 538 U.S. 835, 7 (2003) (per curiam)

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Cite as: 538 U. S. 835 (2003)

Per Curiam

If Bunkley's pocketknife fit within the "common pocketknife" exception to § 790.001(13) in 1989, then Bunkley was convicted of a crime for which he cannot be guilty—burglary in the first degree. And if the "stages" of § 790.001(13)'s "evolution" 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 inapplicable 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 common 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 Supreme 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 Florida Supreme Court never asked whether the weapons statute had "evolved" by 1989 to such an extent that Bunkley's 21/2- to 3-inch pocketknife fit within the "common pocket-knife" exception. The proper question under Fiore is not

841

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