373 So.2d 904 (Fla. 1979), 53834, Chikitus v. Shands

CourtUnited States State Supreme Court of Florida
Writing for the CourtAuthor: Alderman
Citation373 So.2d 904
PartiesMichael Wade CHIKITUS, Petitioner, v. Thomas W. SHANDS, etc., Respondent.
Docket Number53834.
Date26 July 1979

Page 904

373 So.2d 904 (Fla. 1979)

Michael Wade CHIKITUS, Petitioner,

v.

Thomas W. SHANDS, etc., Respondent.

No. 53834.

Supreme Court of Florida.

July 26, 1979

Wilbur C. Smith, III of Smith & Carta, Fort Myers, for petitioner.

Jim Smith, Atty. Gen., and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for respondent.

ALDERMAN, Justice.

We have for review by petition for writ of certiorari the March 14, 1978, order of the District Court of Appeal, Second District, Case No. 78-403, denying the petition of Michael Wade Chikitus for writ of prohibition. We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution. The question presented is whether a prior conviction of reckless driving, willful and wanton, proscribed by section 316.029, Florida Statutes (1975), bars a subsequent prosecution for vehicular homicide proscribed by section 782.071, Florida Statutes (1975). We hold that reckless driving is a lesser included offense of vehicular homicide and that a prior conviction of that offense would bar a subsequent prosecution for vehicular homicide arising from the same facts.

Chikitus, while driving an automobile, was involved in an accident which resulted in the death of two people. He was charged with, pled nolo contendere to, and was convicted of willful and wanton reckless driving contrary to section 316.029. Subsequently, he was charged with two counts of vehicular homicide in violation of section 782.071. These charges arose out of the same accident as the willful and wanton reckless driving charge. Chikitus filed a motion to dismiss the information, arguing, among other things, that double jeopardy prevented him from being tried for vehicular homicide because reckless driving is a lesser included offense of vehicular homicide and because he previously had been convicted of a reckless driving charge stemming from the same facts. The motion to dismiss was denied. Chikitus then filed a petition for writ of prohibition in the Second District. The district court, citing its previous decision in State v. Stiefel, 256 So.2d 581 (Fla. 2d DCA 1972), denied the writ on the ground that the reckless driving charge was a continuing offense, and thus double jeopardy was not applicable to bar the vehicular homicide prosecution.

Chikitus argues that, since by its statutory definition " 'vehicular homicide' is the

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killing of a human being by the operation of a motor vehicle by another...

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