IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

 FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

KENNETH TYRONE LINTON,

Appellant,

v. Case No. 5D15-4394

STATE OF FLORIDA,

Appellee.

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Opinion filed March 10, 2017

Appeal from the Circuit Court 

for Orange County,

Mark S. Blechman, Judge.

James S. Purdy, Public Defender, and

Nancy Ryan, Assistant Public Defender, 

Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, 

Tallahassee, and Carmen F. Corrente, 

Assistant Attorney General, Daytona 

Beach, for Appellee.

EDWARDS, J.

Kenneth Linton (“Appellant”) was the gunman and driver in an armed carjacking. 

He asserts on appeal that his convictions and resulting sentences for one count of firstdegree murder with a weapon felony murder (Count I), one count of fleeing or attempting 

to elude a law enforcement officer causing serious injury or death (Count II), and one 
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count of driving without a valid license causing serious bodily injury or death (Count IV) 

violate Florida’s double jeopardy law. We agree and remand for the trial court to vacate 

Appellant’s current judgments and sentences as to Count II and Count IV with instructions 

to enter modified judgments and sentences. 

As Phillip Sagan got out of his car to close the gate in front of his house late one 

evening, two males, one of whom was Appellant, approached him. Appellant raised a 

gun to Mr. Sagan’s head and said, “Don’t move, I will shoot you right here.” Appellant 

then drove away in Mr. Sagan’s car with the other man in the passenger seat. Mr. Sagan 

immediately called 911 and police responded quickly. 

Officers in two patrol vehicles, with emergency lights and sirens activated, pursued 

Appellant in the speeding car. During this high speed pursuit, Appellant ran multiple red 

lights and reached speeds in excess of 100 miles per hour. The car crashed and rolled 

over; both occupants were ejected. Appellant landed near the driver’s side of the car and 

officers immediately secured him. When asked, Appellant immediately admitted that he 

was driving the car. Appellant’s passenger, seventeen-year-old David Jones, died from 

injuries suffered as a result of the accident. Police recovered a firearm from the car.

Appellant was charged by indictment with one count of first-degree murder with a 

weapon (Count I), one count of fleeing or attempting to elude a law enforcement officer 

causing serious injury or death (Count II), one count of vehicular homicide (Count III), and 

one count of driving without a valid license causing serious bodily injury or death (Count 

IV). During the jury trial, the State presented evidence showing Appellant’s involvement 

in the carjacking, high speed pursuit, and fatal crash. Appellant did not have a valid 

driver’s license on the date of the car crash.
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The jury found Appellant guilty as charged on all four counts. The trial court 

sentenced Appellant to life in prison for Count I, thirty years in prison for Count II, fifteen

years in prison for Count III, and five years in prison for Count IV, all to run concurrently.

Appellant moved for a new trial and for dismissal of Counts III and IV based on double 

jeopardy. The trial court granted his motion to dismiss as to Count III, but denied it as to 

Count IV.

Appellant contends that the enhanced convictions of Counts II and IV must be 

vacated because a single course of conduct causing a single death cannot support 

convictions for both a homicide offense and an offense enhanced by the same death.1

Appellate courts review double jeopardy claims de novo. Pizzo v. State, 945 So. 2d 1203, 

1206 (Fla. 2006).

The Florida Supreme Court has stated, “Florida courts have repeatedly recognized 

that the legislature did not intend to punish a single homicide under two different statutes.”

Houser v. State, 474 So. 2d 1193, 1197 (Fla. 1985) (citations omitted). Based on this 

rule, the Florida Supreme Court held that a defendant could not be convicted of both DUI 

manslaughter and driving while license suspended causing the death of another human 

where only one death resulted. State v. Cooper, 634 So. 2d 1074, 1075 (Fla. 1994). The 

Court explained, “It is entirely appropriate to convict a person of both DUI manslaughter 

and driving while license is suspended, but it is inappropriate to enhance the degree of 

 

1 Appellant did not preserve the issue of whether the Count II conviction violates 

the prohibition against double jeopardy because he only raised the double jeopardy issue 

as to Count IV before the trial court. However, this Court may still review the issue as to 

Count II because “such a claim raises a question of fundamental error that can be raised 

for the first time on direct appeal.” Bailey v. State, 21 So. 3d 147, 149 (Fla. 5th DCA 

2009) (citations omitted).
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both crimes by using a single homicide.” Id. at 1074-75. “[T]here can be but one penalty 

imposed for causing the death of a single victim.” Id. at 1074; see also Houser, 474 So. 

2d at 1196-97 (holding that defendant cannot be punished for both DWI manslaughter 

and vehicular homicide for a single death); Thomas v. State, 837 So. 2d 443, 447 (Fla. 

4th DCA 2002) (holding that defendant could not be convicted of both second-degree 

murder and driving while license suspended causing death because “double jeopardy 

principles prohibit convicting and sentencing appellant for the two homicide offenses 

arising out of a single death”).

Applying Cooper, Houser, and Thomas to the instant case, we find that Appellant 

was properly found guilty and sentenced to life in prison on Count I, the first-degree 

murder of his passenger; however, Counts II and IV cannot be enhanced by that same 

homicide.

The First District reached a different conclusion in a similar case, McKinney v. 

State, 51 So. 3d 645 (Fla. 1st DCA 2011), in which it held that the defendant, who caused 

a single collision-related death, could be convicted and sentenced for both third-degree

felony murder and fleeing or attempting to elude a law enforcement officer causing death, 

without violating double jeopardy.2 51 So. 3d at 648-49. McKinney carjacked a van, led 

police on a high speed chase, drove erratically, and collided with another car, killing its 

driver. Id. at 646. The First District rejected McKinney’s claim that he was being punished 

twice for the death of a single victim, reasoning that the crime of fleeing or eluding is not 

a “homicide offense” because felony fleeing and eluding can be committed without 

 

2 McKinney refers to section 316.1935(3)(b), Florida Statutes (2008), which 

includes the element of causing serious injury or death, as “fleeing and eluding.”
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causing a death. Thus, the court in McKinney reasoned, since “fleeing and eluding” is 

not a “homicide offense,” the defendant was not being punished twice for one death, even 

though high-speed fleeing and eluding can be enhanced, as it was in that case, from a 

second-degree to a first-degree felony if the fleeing and eluding resulted in the death of 

a person. Id. at 648-49; see also § 316.1953(3)(a)-(b), Fla. Stat. (2008). 

The McKinney case does not discuss Cooper. We cannot reconcile McKinney and 

Cooper because McKinney held that a criminal defendant could be punished more than 

once for the same death if the underlying charged crime could be committed without 

causing a death, contravening Cooper’s holding that a criminal defendant cannot be 

punished more than once for the death of a single victim. 

Notably, in a more recent case, Crusaw v. State, 195 So. 3d 422, 422-23 (Fla. 1st 

DCA 2016), the First District held that “double jeopardy principles barred Crusaw’s

conviction for careless driving with a suspended license resulting in death or serious 

bodily injury” when he was also convicted of vehicular homicide for the same death. The 

First District cited Cooper as controlling and did not mention its own McKinney decision. 

See Crusaw, 195 So. 3d at 422. Here, we are obliged to follow Cooper because we must 

follow the precedent set by the Florida Supreme Court. See Hoffman v. Jones, 280 So. 

2d 431, 440 (Fla. 1973).

Accordingly, we affirm the conviction and sentence for first-degree murder, but 

reverse and remand with instructions for the trial court to: (1) vacate the current judgment 

and sentence for Count II and enter judgment convicting Appellant of fleeing or attempting 

to elude a law enforcement officer in violation of section 316.1935(3)(a), Florida Statutes 

(2008); and (2) vacate the current judgment and sentence for Count IV and enter 
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judgment convicting Appellant of driving without a valid license. The trial court shall also 

conduct appropriate proceedings to resentence Appellant based on his modified 

convictions. We sua sponte certify the conflict between McKinney and our case, and the 

apparent conflict between McKinney and Cooper.

REVERSED and REMANDED with instructions; CONFLICT CERTIFIED. 

SAWAYA, J., concurs.

BERGER, J., dissents with opinion. 
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BERGER, J., dissenting. 5D15-4394

Because I believe the majority’s reliance on Cooper to support its decision is 

misplaced, I respectfully dissent. In my view, McKinney and Cooper are readily 

distinguishable and no conflict, either real or apparent, exists between the two.3 With that 

said, because the facts of this case are nearly identical to McKinney, and because I agree 

with Judge Wetherell’s well-reasoned opinion in that case, I would affirm.

 

3 Likewise, I believe McKinney and Crusaw are distinguishable.