FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D18-0516

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MICHAEL DESHON DANIEL,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Escambia County.

John L. Miller, Judge.

May 6, 2019

PER CURIAM.

Appellant led police on a high-speed car chase through a 

residential neighborhood after an officer attempted to pull him 

over for running a stop sign. The chase ended when Appellant’s 

car collided with a minivan and came to rest in a nearby yard. The 

driver of the minivan was killed in the crash and one of the 

passengers was seriously injured. The other passengers in the

minivan also suffered injuries, as did several persons in the yard 

where Appellant’s car came to rest. Appellant fled the scene on 

foot but was apprehended a short distance away. 

Appellant was charged with multiple offenses arising out of 

this criminal episode, including vehicular homicide and fleeing or 
2

eluding.1 The victims listed in the information for the fleeing or 

eluding count were the deceased driver, the injured passengers, 

and the injured persons in the yard where Appellant’s car came to 

rest; but, for reasons not explained in the record, the jury 

instructions for the fleeing or eluding count omitted “serious bodily 

injury” as an element of the offense.2 

Appellant’s sole defense at trial was that he was not driving 

the car that collided with the minivan. This defense was extremely 

weak and was rejected by the jury, which found Appellant guilty 

“as charged” on all counts. The trial court adjudicated Appellant 

guilty on all counts and sentenced him to concurrent 25-year 

prison terms on the vehicular homicide and fleeing or eluding 

counts and to time-served on the other counts. 

On appeal, Appellant argues that his dual convictions for 

vehicular homicide and fleeing or eluding are barred by the 

judicially-created “single homicide rule” because due to how the 

jury was instructed on the fleeing or eluding count, both 

convictions were necessarily based on the death of the minivan’s 

driver and “there can be but one penalty imposed for causing the 

 

1 We use the phrase “fleeing or eluding” as a shorthand 

reference for the first-degree felony offense of fleeing or attempting 

to elude a law enforcement officer in an agency vehicle with siren 

and lights activated, at high speed, causing death or serious bodily 

injury. See § 316.1935(3)(b), Fla. Stat. (2016). 

2 The jury instructions provided in pertinent part:

To prove the crime of Fleeing or Eluding a Law 

Enforcement Officer, the State must prove the following 

five elements beyond a reasonable doubt:

* * *

5. As a result of [Appellant’s] fleeing or eluding at 

high speed, or wanton disregard for safety, he caused the 

death of another person.

(emphasis supplied). 
3

death of a single victim.” State v. Cooper, 634 So. 2d 1074, 1074

(Fla. 1994); see also Houser v. State, 474 So. 2d 1193, 1197 (Fla. 

1985) (“Florida courts have repeatedly recognized that the 

legislature did not intend to punish a single homicide under two 

different statutes.”). We agree with this argument based on 

Crusaw v. State, 195 So. 3d 422 (Fla. 1st DCA 2016), in which we 

held that the single homicide rule precludes dual convictions for

vehicular homicide and careless driving causing death or great 

bodily injury where both offenses involved the same victim.3 

Accord McCullough v. State, 230 So. 3d 586, 593 (Fla. 2d DCA

2017) (holding that the single homicide rule bars dual convictions 

for vehicular homicide and fleeing or eluding when the offenses 

involve the same victim).

The appropriate remedy under these circumstances is—as 

Appellant argues—to vacate the first-degree fleeing or eluding 

conviction and remand for entry of a judgment of conviction on the 

lesser included offense of second-degree fleeing or eluding under 

section 316.1935(3)(a), Florida Statutes. See Cooper, 634 So. 2d at 

1074-75 (holding that a defendant convicted of DUI manslaughter 

may not also be convicted of driving with a suspended license and 

carelessly or negligently causing death, but he may also be 

convicted of a lesser included offense of the latter crime); Linton v. 

State, 212 So. 3d 1100, 1103 (Fla. 5th DCA 2017) (vacating 

defendant’s first-degree fleeing or eluding conviction under the 

single homicide rule where the defendant was also convicted of 

felony murder and remanding for entry of a judgment convicting 

3 We recognize that in McKinney v. State, 51 So. 3d 645 (Fla. 

1st DCA 2011), review denied, 95 So. 3d 213 (Fla. 2012), we held 

that fleeing or eluding is not a “homicide offense” subject to the 

single homicide rule because the offense can be committed without 

causing a death. However, because the offense at issue in Crusaw

could also be committed without causing a death, the holdings in 

McKinney and Crusaw conflict and the later decision (Crusaw)

controls. See R.J. Reynolds Tobacco Co. v. Marotta, 214 So. 3d 590, 

604 (Fla. 2017) (citing Little v. State, 206 So. 2d 9, 10 (Fla. 1968), 

for the proposition that “where intradistrict conflict exists, the 

decision later in time overrules the former as the decisional law of 

the district”); State v. Walker, 593 So. 2d 1049, 1049-50 (Fla. 1990) 

(same).
4

the defendant of second-degree fleeing or eluding). Appellant is 

also entitled to resentencing.4 See Linton, 212 So. 3d at 1103 (“The 

trial court shall also conduct appropriate proceedings to 

resentence Appellant based on his modified convictions.”).

VACATED and REMANDED with directions.

WETHERELL and OSTERHAUS, JJ., concur; WINOKUR, J., concurs in 

result only with opinion.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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WINOKUR, J., concurring in result only.

Alma Hardy died as a result of Daniel’s car colliding into the 

minivan she was driving. Several other persons suffered serious 

bodily injury as a result of the collision. The so-called single 

homicide rule should not have been implicated in this case at all: 

the death of Alma Hardy was sufficient to support Count I 

(vehicular homicide), and the serious bodily injury to any or all of 

the six other persons was sufficient to support Count II (fleeing or 

attempting to elude a law enforcement officer at high speed 

causing serious bodily injury or death). There is no dispute that 

the collision caused the death of Alma Hardy and the serious injury 

to the others. While it is true, as the majority notes, that the jury 

instructions on Count II inexplicably indicated only that the 

fleeing caused death (omitting serious bodily injury), that 

instruction error is harmless beyond a reasonable doubt. 

Nonetheless, in spite of the fact that the two counts plainly did not 

implicate the single homicide rule because Count II could have 

been based on the serious injury to multiple victims (and not the 

 

4 This does not mean that Appellant’s overall sentence will 

change because the trial court is free to reimpose the 25-year 

sentence on the vehicular homicide count.
5

death of Ms. Hardy), I find that we are constrained to reverse 

Daniel’s conviction under the authority of Lee v. State, 258 So. 3d 

1297 (Fla. 2018), which prohibits us from considering the evidence, 

the jury instructions, the verdict form, or any matter other than 

the charging document alone, in determining whether Daniel 

improperly suffered multiple punishments for the same act.

I.

The State charged Daniel in Count I with vehicular 

homicide/leaving the scene of the accident, pursuant to section 

782.071(1)(b), Florida Statutes, and identified the deceased victim, 

Alma Hardy. In Count II, the State charged Daniel with fleeing or 

attempting to elude a law enforcement officer at high speed 

causing serious bodily injury or death pursuant to section 

316.1935(3)(b), Florida Statutes, and named as victims “ALMA L 

HARDY and/or RICHARD LEE HARDY and/or TOMIKI 

MONIQUE HARDY and/or LAQUIA ANDRONETTE REDMOND 

and/or SONJA DENISE HAYES and/or MARTIN HENDRICKS 

and/or RICHARDO HARDY.” The evidence showed that none of 

those victims other than Alma Hardy died as a result of Daniel’s 

driving, but that all six of them suffered serious bodily injury.

At the beginning of trial, the trial court informed the jury that 

Count II alleged “fleeing or attempting to elude a law enforcement 

officer in an agency vehicle with sirens and lights activated at high 

speed causing death or serious bodily injury,” and the State’s 

opening statement in reference to Count II stated that the crash 

“resulted in both death and serious bodily injuries.” The State 

presented multiple victims who testified about the serious injuries 

they suffered in the crash, which included multiple concussions, a 

crushed skull, and scarring; the crash landed one victim in an 

intensive care unit for several days. 

After the parties rested, the trial court and parties reviewed 

the verdict form and agreed that Count II required a finding of 

“serious bodily injury or death.” The trial court proceeded to review 

the jury instructions, and Daniel similarly agreed that the jury 

would be instructed that Count II required “serious bodily injury 

or death.” The State, during closing arguments, referred to Count 

II, noting the multiple serious injuries and that Daniel “caused 

serious bodily injury or death.” Daniel not once disputed the death 
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or serious injuries caused in the crash, arguing only that the 

State’s evidence that he was the driver was insufficient. 

The trial court then read the jury instructions, which stated 

that Count II required a finding that Daniel’s actions “caused the 

death of another person,” for unknown reasons omitting the 

“serious bodily injury” language. Daniel stated that he had no 

objections to the instructions as read. 

The jury found Daniel guilty as charged on all counts. The jury 

foreperson checked next to the following offense in Count II: 

“Guilty of Fleeing to Elude a Law Enforcement Officer – Siren and 

Lights Activated with High Speed or Reckless Driving Causing 

Serious Bodily Injury or Death, as charged.” 

Daniel argued at sentencing that it was impermissible to 

sentence him on both Counts I and II under the authority of State 

v. Cooper, 634 So. 2d 1074 (Fla. 1994), which applied the single 

homicide rule to approve the reversal of convictions for DUI

manslaughter and driving while license suspended and carelessly 

or negligently causing death, where there was only a single death.

The premise of Daniel’s argument was that both Count I and II 

were based on the death of Alma Hardy. The trial court rejected 

Daniel’s argument.

II.

Vehicular homicide, as its name implies, requires death of a 

victim. § 782.071, Fla. Stat. For this reason, Alma Hardy was listed 

alone as a victim in Count I. Conversely, the offense of fleeing or 

attempting to elude a law enforcement officer at high speed 

causing serious bodily injury or death, does not require the death 

of victim; serious bodily injury of a victim is sufficient to support 

this offense. § 316.1935(3)(b), Fla. Stat. See also Fla. Std. Jury 

Instr. (Crim.) 28.8(a). For this reason, all victims were listed in 

Count II, including the victims who were seriously injured but not 

killed.

III.

Daniel notes that the jury instructions for Count II omitted 

the “serious bodily injury” language and only indicated that the 
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jury had to find that Daniel’s fleeing an officer “caused the death 

of another person.” Daniel argues, and the majority accepts, that 

this formulation implicates the single homicide rule because only 

one victim died, and her death was an element of Counts I and II. 

I disagree. Jury instruction errors are generally subject to 

harmless error analysis. Hunter v. State, 8 So. 3d 1052, 1071 (Fla. 

2008). In Hunter, the instructions used “and/or” between the 

names of the appellant and his co-defendants in each element of 

the offenses requiring the appellant’s name. Id. at 1070. He argued 

that this erroneous instruction allowed the jury to convict him 

“solely upon a finding that a codefendant’s conduct satisfied an 

element of the offense.” Id. The supreme court acknowledged the 

error, but found it harmless due in part to overwhelming evidence. 

Id. at 1070-71; see also Victorino v. State, 23 So. 3d 87, 101 (Fla. 

2009) (finding the same error harmless due to other instructions 

given, overwhelming evidence of guilt, and the jury’s ability to 

understand the verdict); Fleming v. State, 88 So. 3d 288, 289 (Fla. 

1st DCA 2012) (holding that absence from the jury instructions of 

any question regarding facts that had to be found by the jury 

pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), was 

harmless in light of the evidence, which showed that the jury 

would have found the stated factors if they had been in the 

instructions); Lindsay v. State, 1 So. 3d 270 (Fla. 1st DCA 2009),

rev. den’d 6 So. 3d 52 (Fla. 2009) (permitting imposition of a 

minimum mandatory sentence even though the court erroneously 

failed to give the jury a special interrogatory to decide the question 

of actual possession of a firearm because the evidence showed that 

no reasonable jury could have found that he did not possess the 

firearm); Noel v. State, 125 So. 3d 243 (Fla. 4th DCA 2013)

(affirming conviction in spite of the court’s erroneous failure to 

instruct the jury on an essential element of the crime, on the 

ground that the instruction error was harmless).

Similarly, I find it beyond dispute that a rational jury would 

have found that Daniel’s fleeing caused serious bodily injury to one 

or more of the victims indicated in Count II. The information, the 

opening statement, the evidence, the closing arguments, and the 

verdict form all indicated that the fleeing caused serious bodily 

injury to several victims, and demonstrate that the instruction 

error was an oversight. More importantly, Daniel never disputed 

that a crash occurred or that several people were seriously injured 
8

as a result; he only argued that the State did not adequately show 

that he was the driver. For this reason, the failure to include the 

serious bodily injury language in the jury instruction was harmless 

beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129, 

1135 (Fla. 1986). As such, it appears that this case does not 

implicate the single homicide rule at all because Count II is 

supported by serious injury to several victims, not just the death 

of Alma Hardy.

IV.

Even though the evidence in this case is overwhelming that 

Count II is supported by the injuries to persons other than Alma 

Hardy, this result is foreclosed by the recent decision of Lee v. 

State. Lee imposed an extraordinary approach to multiplepunishment issues that we are obliged to apply here. Under Lee, 

in analyzing whether Daniel would improperly suffer multiple 

punishments for the same act, the trial court was not to consider 

the undisputed evidence of serious injury, nor the fact that Daniel 

never disputed that the crash caused serious injury, nor the fact 

that the jury found, as shown by the verdict form, that Daniel’s 

fleeing caused “Serious Bodily Injury or Death, as charged.” 

Instead, the court was required to look past all these matters and 

look only to the charging document in determining whether 

conviction for Counts I and II constituted multiple punishment. 

See Lee, 258 So. 3d at 1304 (holding that, in determining whether 

multiple convictions “are based on the same conduct for purposes 

of double jeopardy, the reviewing court may consider only the 

charging document”). The question in multiple-punishment issues 

is no longer whether a defendant received multiple punishment for 

the same act, it is whether different acts can necessarily be 

discerned from the charging document alone. Regardless of 

whether the evidence that Daniel’s fleeing caused serious injury 

was overwhelming, regardless of whether the evidence is clear that 

Count II did not involve only the death of Alma Hardy, if we look 

only at the information, it is “impossible to know,” id., whether 

Daniel was convicted only of killing Alma Hardy in two separate 

counts. Accordingly, the convictions violate the single homicide 

rule. Therefore, Lee compels us to reverse Daniel’s conviction. We 

should do so in the manner indicated in the majority opinion.
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V.

The explicit holding of Lee requires the reviewing court to 

consider only the charging document in determining “whether 

multiple convictions of solicitation of a minor, unlawful use of a 

two-way communications device, and traveling after solicitation of 

a minor are based upon the same conduct for purposes of double 

jeopardy,” consistent with State v. Shelley, 176 So. 3d 914 (Fla. 

2015) (involving “solicitation and traveling after solicitation based 

upon the same conduct”). Lee, 258 So. 3d at 1299, 1304. There 

appears to be no principled reason not to apply the Lee holding to 

any same-conduct multiple-punishment claim. Nonetheless, to be 

clear on this matter I believe we should certify a question to the 

supreme court asking whether Lee applies to all same-conduct 

multiple-punishment claims, or only to the soliciting and traveling 

claims indicated in that decision.

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Jason Cromey of Cromey Law, P.A., Pensacola, for Appellant.

Ashley Moody, Attorney General, and Sharon Traxler, Assistant 

Attorney General, Tallahassee, for Appellee.