DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

PRINCIPE HORMAECHE,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D21-2071

[July 6, 2022]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Andrew L. Siegel, Judge; L.T. Case No. 16-

012875CF10A.

Jason T. Forman of Law Offices of Jason T. Forman, P.A., Fort 

Lauderdale, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Luke R. Napodano, 

Assistant Attorney General, West Palm Beach, for appellee.

ARTAU, J.

This case requires us to consider the oft-repeated maxim that 

“excessive speed alone will not support a conviction for vehicular 

homicide.”1 More accurately, the question presented by this appeal is 

whether the defendant’s excessive speed alone was enough to foreclose his

ability to mount a defense to vehicular homicide charges on grounds that 

his conduct was merely careless as opposed to reckless.

The defendant in this case entered an open no contest plea to two

counts of vehicular homicide after he unfortunately caused the deaths of 

two individuals during a car accident. Prior to sentencing, the defendant 

moved to withdraw his plea, pursuant to Florida Rule of Criminal 

Procedure 3.170(f), on grounds that defense counsel erroneously advised

1 Luzardo v. State, 147 So. 3d 1083, 1085 (Fla. 3d DCA 2014); see also, e.g., 

House v. State, 831 So. 2d 1230, 1233 (Fla. 2d DCA 2002) (“Speed alone will not 

support a charge of vehicular homicide.”).
2

him that his speeding at the time of the collision precluded him from 

having a viable defense to the charges. The trial court denied the motion

after hearing from both the defendant and his counsel. On appeal, the 

defendant argues that the trial court erred in denying his pre-sentence

motion to withdraw his plea. We agree and reverse.

An attorney’s failure to advise his or her client of a viable defense 

constitutes “good cause” to allow the client to withdraw his or her plea 

prior to sentencing. See Fla. R. Crim. P. 3.170(f) (“The court may in its 

discretion, and shall on good cause, at any time before a sentence, permit 

a plea of guilty or no contest to be withdrawn[.]” (emphasis added));

Johnson v. State, 971 So. 2d 212, 215 (Fla. 4th DCA 2008) (“[A] defendant’s 

entry of a plea based upon his attorney’s mistaken advice can be a valid 

basis for finding good cause [to withdraw a plea].”); Collins v. State, 858 

So. 2d 1197, 1198 (Fla. 4th DCA 2003) (“Clearly, a defendant’s entry of a 

plea based upon his attorney’s mistaken advice can be a basis for a motion 

to withdraw plea.” (citing Snodgrass v. State, 837 So. 2d 507, 508 (Fla. 4th 

DCA 2003)).

At the hearing on his rule 3.170(f) motion, the defendant testified that 

he based his decision to plead no contest on his attorney’s advice that a 

defense to the vehicular homicide charges would not be possible because 

he was speeding at the time of the collision. The defendant further testified 

that he learned through consultation with a second attorney prior to 

sentencing that defense counsel’s advice was flawed because his speed at 

the time of the collision did not necessarily preclude him from presenting 

a defense that could result in the charges being “dropped to careless 

driving.” Moreover, defense counsel candidly admitted that her advice to 

defendant was flawed as it was based on the mistaken belief that the level 

of intent necessary to support a conviction for vehicular homicide had been

met solely because the defendant was speeding.

Whether a defendant’s particular claim of mistaken advice by counsel 

is proven depends upon “the context of the record.” Collins, 858 So. 2d at 

1198; see also Wagner v. State, 895 So. 2d 453, 456 (Fla. 5th DCA 2005) 

(“Good cause must be established within the context of the record.”). 

Thus, the dispositive question in this appeal is whether or not counsel’s 

advice to the defendant was legally sound under the factual circumstances 

of this case.

A conviction for vehicular homicide requires proof that a defendant 

caused the death of another human being through the operation of a motor 

vehicle “in a reckless manner likely to cause the death of, or great bodily 

harm to, another.” Rubinger v. State, 98 So. 3d 659, 662 (Fla. 4th DCA 
3

2012) (quoting § 782.071, Fla. Stat. (2006)). “The defendant does not have 

to have intended to harm anyone; rather, he [or she] must have engaged 

in intentional conduct demonstrating a conscious disregard of a likelihood 

of death or injury.” State v. Desange, 294 So. 3d 433, 437 (Fla. 2d DCA 

2020) (citing Fla. Std. Jury Instr. (Crim.) 7.9).

“Neither carelessness nor ordinary negligence in the operation of a 

motor vehicle are sufficient to sustain a conviction for vehicular homicide.” 

Luzardo v. State, 147 So. 3d 1083, 1086 (Fla. 3d DCA 2014); see also Pitts 

v. State, 473 So. 2d 1370, 1373 (Fla. 1st DCA 1985) (“[C]areless driving is 

not a lesser-included offense of vehicular homicide.”); C.D. v. State, 356 

So. 2d 1249, 1249 (Fla. 3d DCA 1978) (“Careless driving is not a lesser 

included offense of reckless driving[.]” (footnote omitted)).2

“Determining whether a defendant’s driving was reckless as 

distinguished from merely negligent is a ‘fact intensive, ad hoc inquiry’

such that each case involving charges like these turns on its own specific 

facts.” Desange, 294 So. 3d at 438 (quoting Luzardo, 147 So. 3d at 1086).

Nothing in section 782.071, Florida Statutes (2015), supports the 

proposition that a finding of recklessness can be based solely on the 

numeric value of a driver’s excessive speed—which would by itself only 

constitute a non-criminal traffic offense—in the absence of other 

determinant factors. See Damoah v. State, 189 So. 3d 316, 320 (Fla. 4th

DCA 2016) (“In affirming convictions for vehicular homicide or 

manslaughter by culpable negligence, it is excessive speed, in combination 

with other factors, that support the convictions.”); see also Luzardo, 147 

So. 3d at 1084–89 (reversing conditional plea of guilty to vehicular 

homicide where the defendant was traveling at 83.9 miles per hour—well 

in excess of the posted speed limit of 55 miles per hour—on “a straight 

road in sunny weather with clear visibility” when he collided with victim’s 

car because his conduct was deemed insufficient to establish the level of 

recklessness necessary to convict him of vehicular homicide, despite being 

“careless, even negligent”).

Here, the defendant was driving eastbound on a heavily traveled

thoroughfare when his Toyota Camry collided head-on with the driver’s 

2 Cases involving the offense of reckless driving are relevant to our analysis 

because vehicular homicide requires proof of reckless driving. See Santisteban 

v. State, 72 So. 3d 187, 195 (Fla. 4th DCA 2011) (“Vehicular homicide cannot be 

proven without also proving the elements of reckless driving, which requires proof 

of a ‘willful or wanton disregard for the safety of persons[.]’” (citing § 316.192(1), 

Fla. Stat. (2004)). 
4

side of a Nissan Sentra in the middle of an intersection controlled by a 

traffic signal on a clear and dry summer afternoon. He was not swerving 

outside of his lane, nor was he weaving in and out of traffic or otherwise 

endangering pedestrians or bicyclists. However, the State contends that 

the traffic light facing the defendant’s oncoming vehicle was red for seven 

seconds prior to the collision and he was traveling approximately 22 miles 

per hour above the posted speed limit while being carelessly distracted by

his cellular phone because it reflected data usage around the time of the 

accident.

Information obtained from the Toyota’s event data recorder, as well as 

the red-light camera at the intersection where the accident occurred, 

indicates that the defendant failed to apply his brakes until he entered the 

intersection just prior to impact.

The State’s probable cause affidavit asserts that the Nissan would have 

cleared the intersection and the crash would not have occurred had the 

defendant been “traveling at or near the [posted] speed limit or had reacted 

as a typical and prudent driver of a vehicle and stopped for the traffic 

signal.” However, causation is not the issue upon which the defendant 

was given erroneous advice by his attorney in this criminal prosecution.

Instead, as defense counsel candidly admitted at the hearing on the 

defendant’s rule 3.170(f) motion, her advice to the defendant regarding his 

inability to mount a defense to the charges against him was flawed.

We therefore agree with the defendant that the advice he received from 

counsel, and upon which he based his plea, was not legally sound. That 

is, his excessive speed at the time of the collision was not, alone, sufficient 

to foreclose his ability to mount a defense to the vehicular homicide 

charges on grounds that his conduct was merely careless as opposed to 

reckless. See, e.g., Desange, 294 So. 2d at 438 (“conduct constituting 

everyday negligence” is insufficient to sustain a conviction for vehicular 

homicide); Damoah, 189 So. 3d at 319 (“The law differentiates between 

negligent driving conduct, which exposes a wrongdoer to civil liability, and 

criminal driving conduct, which subjects a person to incarceration and 

other criminal sanctions.”); see also, e.g., Harris v. State, 318 So. 3d 645, 

647–48 (Fla. 2d DCA 2021) (determining evidence insufficient to support 

revocation of probation based on an asserted commission of reckless 

driving where the defendant was traveling more than fifty miles per hour

over the posted speed limit on a four-lane road in a residential area, 

“without evidence of swerving within his lane, without evidence of weaving 

outside his lane, and without evidence of actually endangering traffic or 

pedestrians.”).
5

Once “good cause” for the defendant to withdraw his plea was shown

prior to sentencing, the trial court was “obligated to allow the defendant 

as a matter of right to withdraw [his] plea[.]” Stewart v. State, 315 So. 3d 

756, 758 (Fla. 4th DCA 2021) (quoting Smith v. State, 840 So. 2d 404, 406 

(Fla. 4th DCA 2003)).

Accordingly, we reverse the order denying the defendant’s pre-sentence 

motion to withdraw his plea and resulting judgment of conviction, instruct 

the trial court to allow the defendant to withdraw his plea, and remand for 

further proceedings consistent with this opinion.

Reversed and remanded with instructions.

DAMOORGIAN and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.