Coto v. State, 4D18-2602

• Court: Court of Appeal of Florida (US)
• Writing for the Court: KLINGENSMITH, J.
• Citation: 297 So.3d 564
• Parties: Shirley COTO, Appellant, v. STATE of Florida, Appellee.
• Docket Number: No. 4D18-2602,4D18-2602
• Decision Date: 20 May 2020

297 So.3d 564

Shirley COTO, Appellant,
v.
STATE of Florida, Appellee.

No. 4D18-2602

District Court of Appeal of Florida, Fourth District.

[May 20, 2020]

Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.

KLINGENSMITH, J.

Shirley Coto appeals her conviction and sentence for several charges stemming from her involvement in a two-vehicle collision that left one dead and three others injured. Although she was acquitted of several charges, Coto claims that the trial court erred in adjudicating her guilty of and sentencing her on four counts of driving without a license and causing death or serious bodily injury under section 322.34(6), Florida Statutes (2015). She alleges that her multiple convictions on these charges violates double jeopardy. We agree and reverse as to that issue but affirm as to all other issues raised on appeal.

On the day of the incident, Coto drove her friend's car to pick up four children, including Coto's daughter, from school. Although Coto had permission to get the children from school, she was supposed to walk them home because Coto did not have a valid driver's license. While in the vehicle, none of the children were wearing seatbelts. After picking up the children, Coto made a stop at a local liquor store before heading to a nearby shopping plaza. While preparing to make a left turn into the plaza, Coto waited at the intersection until the oncoming traffic was clear. Just as Coto made her turn, another car ran the red light and crashed into the side of her vehicle in the middle of the intersection.

As a result of the crash, one of the children in Coto's vehicle died and the three who survived, including Coto's daughter, sustained serious injuries. The officer who arrived on the scene noticed that Coto's eyes were watery, glassy, and bloodshot and that her breath smelled of alcohol. Coto's blood was drawn twice at the hospital approximately five hours after the crash, and testing showed that she had a blood alcohol concentration of .09 and .07. Over a year later, the State charged Coto by information with eighteen separate counts: aggravated manslaughter of a

297 So.3d 566

child (Count I); DUI manslaughter, unlawful blood alcohol level (Count II); DUI serious bodily injury, unlawful blood alcohol level (Counts III, IV, and V); DUI manslaughter, impairment (Count VI); DUI serious bodily injury, impairment (Counts VII, VIII, IX); operating a motor vehicle without a driver's license and negligently or carelessly causing death or serious bodily injury (Counts X, XI, XII and XIII); neglect of a child (Counts XIV, XV and XVI); driving without vehicle registration (Count XVII); and operating a motor vehicle with an unlawful license plate (Count XVIII).

At Coto's trial, an accident reconstructionist testified that while the other driver was the primary cause of the crash, Coto's failure to observe the danger posed by turning in front of a speeding vehicle was the secondary cause of the accident. He also stated that Coto's drinking impaired her normal faculties to the point that she did not properly perceive the other vehicle encroaching. Additionally, the reconstructionist could not discount the effect that the children's failure to have their seatbelts on, and Coto's failure to have a driver's license, played in the accident.

At the end of deliberations, the jury found Coto guilty of one count of operating a vehicle without a valid license causing death; three counts of operating a vehicle without a license causing serious bodily injury; three counts of child neglect; and failure to register a motor vehicle. The jury acquitted Coto of all the DUI-related charges.

Coto filed post-verdict motions for judgment of acquittal on some of the charges. Although the trial court granted her motion as to the child neglect charges, it denied her motion as to the operating a vehicle without a license causing death and serious bodily injury charges and adjudicated her guilty on those counts.

At sentencing, the State prepared a Criminal Punishment Code ("CPC") score sheet that designated one of the four driving without a license causing death or serious bodily injury counts as the primary offense, with each of the other three counts of that offense and the misdemeanor failure to register a motor vehicle offense scored as "additional offenses." In all, Coto was assessed 240 victim injury points — 120 for one death and 120 for the severe bodily injury of three individuals. Other points were also assessed for Coto's prior convictions, all of which were driver's license or vehicle registration violations. Her total sentencing points gave Coto a lowest-permissible sentence of approximately sixteen years in prison. The court ultimately sentenced Coto to seventeen years in prison—three consecutive five-year sentences, followed by a consecutive two-year sentence. The trial court also entered orders directing Coto to pay restitution to the three children who were injured in the crash.

Coto later filed her motion to correct a sentencing error under Florida Rule of Criminal Procedure 3.800(b)(2) with the trial court. Coto claimed that: (1) the adjudication of guilt as to four counts of driving without a driver's license and causing serious bodily injury or death violated the constitutional prohibition against double jeopardy because her driving without a license was a single act; (2) the assessment of sentencing points for those four counts violated double jeopardy for the same reason; (3) the imposition of 240 victim injury points was erroneous because Coto's driving without a driver's license was not the primary cause of the injuries or death at issue; and (4) the imposition of restitution was erroneous because Coto's driving without a license did not proximately cause the injuries or death at issue. The trial court entered an order denying all of

297 So.3d 567

Coto's claims without a hearing. This appeal followed.

Although Coto first raised the double jeopardy claim in her Rule 3.800(b)(2) motion, it was not proper there. See Farrar v. State , 42 So. 3d 265, 266 (Fla. 5th DCA 2010). However, a claim brought to the court by improper means may nonetheless be reviewed by an appellate court for fundamental error. See Schwartzberg v. State , 215 So. 3d 611, 615 (Fla. 4th DCA 2017) ("[A] double jeopardy violation is...