Hare v. State

• Decision Date: 25 January 2013
• Docket Number: No. 5D11–3134.,5D11–3134.
• Citation: 114 So.3d 252
• Parties: Jaren Ashley HARE, Appellant, v. STATE Of Florida, Appellee. Charles Jason Darnell, Appellant, v. State Of Florida, Appellee.
• Court: Florida District Court of Appeals

114 So.3d 252

Jaren Ashley HARE, Appellant,
v.
STATE Of Florida, Appellee.
Charles Jason Darnell, Appellant,
v.
State Of Florida, Appellee.

No. 5D11–3134.

District Court of Appeal of Florida,
Fifth District.

Jan. 25, 2013.

[114 So.3d 253]

James S. Purdy, Public Defender, and Thomas A. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant, Jaren Ashley Hare.

James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant, Charles Jason Darnell.

Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Appellee.

ORFINGER, C.J.

Jaren A. Hare and Charles J. Darnell (“Appellants”) appeal their convictions of aggravated manslaughter of a child by culpable negligence. ¹ We affirm these convictions without discussion. However, we agree with Appellants that their additional convictions of child neglect,² arising from the same criminal act, violated double jeopardy principles. ³

The double jeopardy clause in both the state and federal constitutions protects criminal defendants from multiple convictions and punishments for the same offense. McKnight v. State, 906 So.2d 368, 370 (Fla. 5th DCA 2005). Determining whether double jeopardy is violated is a legal determination, which we review de novo. Pizzo v. State, 945 So.2d 1203, 1206 (Fla.2006).

[114 So.3d 254]

“The prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal transaction is whether the Legislature ‘intended to authorize separate punishments for the two crimes.’ ” Valdes v. State, 3 So.3d 1067, 1070 (Fla.2009) (quoting M.P. v. State, 682 So.2d 79, 81 (Fla.1996)). Absent clear legislative intent to authorize separate punishments, courts employ the Blockburger⁴ “same elements” test, i.e., “whether each offense has an element that the other does not,” codified at section 775.021(4)(a), Florida Statutes (2009).⁵ If each of the offenses has an element that the other does not, the court must then determine if one of the exceptions set forth in section 775.021(4)(b)⁶ applies to preclude separate convictions and sentences. Valdes, 3 So.3d at 1070.

Aggravated manslaughter of a child by culpable negligence requires the State to prove the defendant caused the death of a person under the age of eighteen “by culpable negligence under s. 827.03(3),” the criminal child neglect statute.⁷§ 782.07(3), Fla. Stat. (2009); Fla. Std. Jury. Inst. (Crim.) 7.7; see Ramos v. State, 89 So.3d 1119, 1120 n. 1 (Fla. 1st DCA 2012); Koenig v. State, 757 So.2d 595, 596 (Fla. 5th DCA 2000). In turn, to prove child neglect under section 827.03(3), Florida Statutes (2009), the State is required to prove that the defendant acted willfully or with culpable negligence in creating a situation or allowing a dangerous condition to occur. See§ 827.03(3)(c), Fla. Stat. (2009); Fla. Std. Jury Inst. (Crim.) 16.5, 16.6; Parrish v. State, 66 So.3d 1030, 1032 (Fla. 1st DCA 2011); Arnold v. State, 755 So.2d 796, 797 (Fla. 2d DCA 2000). Neglect of a child, resulting in great bodily harm, is a second-degree felony.

[114 So.3d 255]

§ 827.03(3)(b), Fla. Stat. (2009). Neglect that results in the death of the child is a first-degree felony. Koenig, 757 So.2d at 596.

Double jeopardy principles prohibit convictions for “[o]ffenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.” § 775.021(4)(b) 3., Fla. Stat. (2009). This exception applies only to category one or necessarily lesser included offenses and not to category two or permissive lesser included offenses. State v. Florida, 894 So.2d 941, 947 (Fla.2005), receded from on other grounds by Valdes, ...