NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

HARVEY L. LINEN, DOC #493480, )

)

Appellant, )

)

v. )

) Case No. 2D16-3691

STATE OF FLORIDA, ) 

)

Appellee. )

)

Opinion filed March 29, 2019.

Appeal from the Circuit Court for 

Hillsborough County; William Fuente,

Judge.

Howard L. Dimmig, II, Public Defender,

and Keith W. Upson, Special Assistant 

Public Defender, Bartow, for Appellant. 

Ashley Moody, Attorney General, 

Tallahassee, and Linsey SimsBohnenstiehl, Assistant Attorney 

General, Tampa, for Appellee.

SLEET, Judge.

Harvey L. Linen challenges his convictions and sentences for felony 

leaving the scene of a crash with injury and misdemeanor leaving the scene of a crash 

with property damage in circuit court case number 15-CF-011658 and the resulting 

revocation of his probation in circuit court case number 10-CF-004623. Because 
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Linen's two convictions are based on true inconsistent verdicts, we must reverse Linen's 

conviction and sentence for leaving the scene of a crash with property damage. 

However, we affirm Linen's conviction for leaving the scene of a crash with injury and 

the resulting revocation of probation without further comment. 

Both of the charged offenses arose from an automobile accident in which 

Linen twice rear-ended a vehicle driven by his wife. The second impact caused the 

victim to lose control of her car, veer off the roadway, and strike a utility pole. 

Thereafter, Linen lost control of his truck, and it landed on its side near the victim's car. 

Linen left the scene of the crash on foot. As a result of the crash, the victim suffered 

bodily injury and her car sustained property damage. At trial, the jury found Linen guilty 

of both leaving the scene of a crash with injury and leaving the scene of a crash with 

property damage.

As a general rule, inconsistent jury verdicts are 

permitted in Florida. Inconsistent verdicts are allowed 

because jury verdicts can be the result of lenity and 

therefore do not always speak to the guilt or innocence of 

the defendant. . . . 

This Court has recognized only one exception to the 

general rule allowing inconsistent verdicts. This exception, 

referred to as the "true" inconsistent verdict exception, 

comes into play when verdicts against one defendant on 

legally interlocking charges are truly inconsistent. . . . [T]rue 

inconsistent verdicts are "those in which an acquittal on one 

count negates a necessary element for conviction on 

another count." 

State v. Powell, 674 So. 2d 731, 732-33 (Fla. 1996) (citations omitted) (quoting 

Gonzalez v. State, 440 So. 2d 514, 515 (Fla. 4th DCA 1983)).

Here, the jury found Linen guilty of violating sections 316.027(2)(a) and 

316.061(1), Florida Statutes (2015). Section 316.027(2)(a) provides as follows: 
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The driver of a vehicle involved in a crash occurring on 

public or private property which results in injury to a person 

other than serious bodily injury shall immediately stop the 

vehicle at the scene of the crash, or as close thereto as 

possible, and shall remain at the scene of the crash until he 

or she has fulfilled the requirements of s. 316.062. A person 

who willfully violates this paragraph commits a felony of the 

third degree, punishable as provided in s. 775.082, s. 

775.083, or s. 775.084.

And section 316.061(1) provides:

The driver of any vehicle involved in a crash resulting only in 

damage to a vehicle or other property which is driven or 

attended by any person shall immediately stop such vehicle 

at the scene of such crash or as close thereto as possible, 

and shall forthwith return to, and in every event shall remain 

at, the scene of the crash until he or she has fulfilled the 

requirements of s. 316.062. A person who violates this 

subsection commits a misdemeanor of the second degree, 

punishable as provided in s. 775.082 or s. 775.083.

(Emphasis added.)

The evidence presented at trial established that Linen willfully left the 

scene of a crash and that the victim suffered both physical injury to her person and 

property damage to her vehicle. As such, the evidence supports the jury's finding of 

guilt as to the leaving the scene with injury charge. But because the plain language of 

section 316.061(1) allows for a conviction under that section when the crash results only 

in property damage, a jury finding that the crash resulted in physical injury to the victim 

necessarily negates that required element of section 316.061(1); in other words, if the 

crash resulted in physical injury, it cannot have resulted only in property damage. See 

Peterson v. State, 775 So. 2d 376, 377-78 (Fla. 4th DCA 2000) ("The jury's finding of 

guilt for leaving the scene of an accident with injuries negated a necessary element of 

the other crime, leaving the scene of a 'crash resulting only in damage to a vehicle.' "). 

Accordingly, the jury's guilty verdicts on both offenses are true inconsistent verdicts.
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We therefore reverse Linen's conviction for the misdemeanor offense.1 

See id. at 378. But we affirm the conviction for felony leaving the scene of a crash 

resulting in injury and the revocation of Linen's probation in case number 10-CF004623.2

Affirmed in part; reversed in part.

VILLANTI and ATKINSON, JJ., Concur. 

1Although Linen did not raise this argument in the trial court, because 

Linen was convicted of an offense where an essential element could not be proven, the 

error is fundamental. See Proctor v. State, 205 So. 3d 784, 789 (Fla. 2d DCA 2016).

2

It is clear from the record before us that the inclusion of the misdemeanor 

on Linen's Criminal Punishment Code scoresheet did not affect the sentences imposed 

on the felony count and in case number 10-CF-004623.