## F IRST 

## D ISTRICT 

## C OURT OF 

## A PPEAL 

## S TATE OF 

## F LORIDA

_____________________________

No. 1D18

- 0516

_____________________________

M ICHAEL D ESHON D ANIEL

,

Appellant,

v.

S TATE OF F LORIDA

,

Appellee.

_____________________________

On appeal from the Circuit Court for Escambia County. John L. Miller, Judge.

May 6, 2019

P ER C URIAM

.

A ppellant 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 mini van and came to rest in a nearby yard. The
driver of the mini van was killed in the crash and one of the passengers was seriously injured. The other passengers in the
mini van also suffered injuries, as did s everal persons in the yard where Appellant’s car came to rest . Appellant fled the scene on foot but was apprehend ed a short distance away.

A ppellant was charged with m ultiple offenses arising out of this criminal episode , including vehicular homicide and fleeing or2 eluding

. 1 The victims listed in the information for the fleeing or eluding count we re the deceased driver, the injured passengers, and t he 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 ele ment of th e 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 A ppellant 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, A ppellant argues that his dual convictions for
vehi cular 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 “t here 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 ins tructions 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 cau s ed 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 201 6 ), 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 )

.

T he appropriate remedy under these circumstances is

— as Appellant argues

— to v acate 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

. S ee 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 c rime ) ; 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 t he offense at issue in Crusaw could also be committed without causing a death , the holding s 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) (citin g 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.”).

V

ACATED and R EMANDED with directions

.

W ETHERELL and O STERHAUS

, JJ., concur ; W INOKUR

, J., concur s in result only with opinion

.

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or

9.331

.

_____________________________

W INOKUR , 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. Whi le 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 Appel lant’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 suf fered 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
attemp ting 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 ANDRONE TTE 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 Stat e’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 con cussions, 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 death6 or serious injuries caused in the crash, arguing only that the
State’s evidence that he was the driver was insufficient.

The t rial 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 s ingle 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. Con versely, 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 the7 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 o f 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 pos sess 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).

Similar ly, 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 in jured8 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. DiGuili o , 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 i n 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.
S tate

. Lee imposed an extraordinary approach to multiple

punishment 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 evi dence 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 c ourt 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 convic tions “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 i nvolve 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. Therefo re, Lee compels us to reverse Daniel’s conviction. We should do so in the manner indicated in the majority opinion.9 V.

The explicit holding of Lee requires the reviewing court to consider only the charging document in determining “ whether multiple convicti ons 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 jeopard y,” consistent with State v. Shelley , 176 So. 3d 914 (Fla. 2015) (inv olving “ 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.

_____________________________

J ason Cromey of Cromey Law

, P.A., Pensacola, for Appellant.

Ashley Moody, Attorney General, and Sharon Traxler, Assistant Attorney General, Tallahassee , for Appellee.