Higdon v. State

• Decision Date: 14 March 1985
• Docket Number: No. 83-1128,83-1128
• Citation: 465 So.2d 1309,10 Fla. L. Weekly 702
• Parties: 10 Fla. L. Weekly 702 John Martin HIGDON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1309

465 So.2d 1309

10 Fla. L. Weekly 702

John Martin HIGDON, Appellant, v. STATE of Florida, Appellee.

No. 83-1128.

District Court of Appeal of Florida Fifth District.

March 14, 1985.

Craig Stephen Boda, of Tanner, Lambert & Boda, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellee.

ON MOTION FOR REHEARING

COBB, Chief Judge.

We herewith vacate our opinion filed in this cause on February 14, 1985. We have jurisdiction to do so inasmuch as no mandate has issued, the same having been ordered stayed within fifteen days from the date of said decision. ¹ See Fla.R.App.P. 9.340. Even had the mandate issued, we would have jurisdiction to vacate it during this term of court, which does not end until the second Tuesday in July, 1985. See § 35.10, Fla.Stat. (1983); State Farm Mutual Auto. Ins. Co. v. Judges of the District Court of Appeal, Fifth District, 405 So.2d 980 (Fla.1981). See also Orange Federal Savings & Loan Assn. v. Dykes, 444 So.2d 1152 (Fla. 5th DCA 1984); Westberry v. Copeland Sausage Co., 397 So.2d 1018 (Fla. 1st DCA 1981).

This cause concerns a substantial issue of law bearing upon the proper administration of justice in the trial courts and has caused a division of opinion between other appellate courts of this state. ² We herewith deny the appellant's motion for rehearing and reinstate our original opinion, issued under date of November 23, 1984, which affirmed the appellant's convictions for vehicular homicide and certified a question to the Florida Supreme Court. The original opinion and dissent herewith are set forth in haec verba:

"PER CURIAM.

"The defendant, John Martin Higdon, was charged by information with two counts (two victims) of manslaughter by driving while intoxicated pursuant to section 860.01, Florida Statutes (1981). 1 Such a charge is commonly referred to as 'D.W.I. manslaughter.' At trial, he objected to the jury being instructed on, and allowed to consider a verdict of, vehicular homicide 2 as a lesser included offense of D.W.I. manslaughter. The objection was overruled by the trial judge for the reason that vehicular homicide is included as a Category 1 lesser included offense of D.W.I. manslaughter in the schedule of lesser offenses in the Matter of Use by Trial Courts Standard Jury Instructions in Criminal Cases, 431 So.2d 594 (Fla.1981). Higdon was convicted of vehicular homicide on each count and appeals, arguing that he was convicted of a crime with which he was not charged.

"The issue on appeal ³ is whether or not vehicular homicide is a necessarily lesser included offense (Category 1) of D.W.I. manslaughter. If it is not, then the appellant must prevail and be discharged from any homicide conviction, in spite of the overwhelming evidence that he drunkenly killed two boys on a bicycle. The reason is that the factual allegations of the informations filed in the trial court are not broad enough to encompass the statutory elements of the crime of vehicular homicide so as to classify it as a Category 2 (possibly included) lesser offense.

"Vehicular homicide requires that the defendant operate a motor vehicle in a reckless manner (likely to cause the death of, or great bodily harm to, another), and that there be a causal relationship between that recklessness and the victim's death. See J.A.C. v. State, 374 So.2d 606 (Fla. 3d DCA 1979), review denied, 383 So.2d 1203 (Fla.1980). Neither reckless operation nor proximate cause is an element of the crime of D.W.I. manslaughter under section 860.01(2), as that section has been construed by the Florida Supreme Court in Baker v. State, 377 So.2d 17 (Fla.1979). Therein, the Florida Supreme Court held the statute to be one creating strict criminal liability. Therefore, based upon a strict Blockburger ⁴ analysis of the statutory elements of the two offenses, it would seem that vehicular homicide cannot be a necessarily lesser included offense (Category 1) of D.W.I. manslaughter. Two district courts of appeal in Florida agree with this conclusion. See Houser v. State, 456 So.2d 1265 (Fla. 1st DCA 1984); Mastro v. State, 448 So.2d 626 (Fla. 2d DCA 1984).

"Nevertheless, the Florida Supreme Court, in its schedule of lesser included offenses, has specifically included vehicular homicide as a necessarily lesser included offense of D.W.I. manslaughter, and promulgated that schedule subsequent to its Baker opinion. The schedule is presumptively correct. See Ray v. State, 403 So.2d 956 (Fla.1981); Torrence v. State, 440 So.2d 392 (Fla. 5th DCA 1983). We decline to reverse the trial court for following that schedule in the instant case. This result facilitates review, and correction if necessary, by the Florida Supreme Court of the apparent incongruity between its schedule and its majority opinion in Baker. Frankly, we cannot perceive how that majority opinion ignored the causation language in section 860.01(2) to arrive at its interpretation of strict liability. Hopefully, the schedule portends an adoption of Justice Boyd's persuasive dissent in Baker.

"Pursuant to Article V, Section 3(b)(4) of the Florida Constitution, and Rule 9.030(a)(2)(A)(v) and (vi), we hereby certify that our decision herein is in direct conflict with the decisions of the First and Second District Courts of Appeal in Houser and Mastro, and we certify the following question to be one of great public importance:

"IS THE SCHEDULE OF LESSER INCLUDED OFFENSES PROMULGATED BY THE FLORIDA SUPREME COURT IN 1981 IN ERROR IN CLASSIFYING VEHICULAR HOMICIDE (§ 782.071) AS A NECESSARILY LESSER INCLUDED OFFENSE OF D.W.I. MANSLAUGHTER (§ 860.01)?

"AFFIRMED.

"COBB, C.J., UPCHURCH, F., J., concur.

"DAUKSCH, J., dissents with opinion.

"DAUKSCH, J., dissenting.

"I respectfully dissent.

"Appellant's conduct violated two primary criminal statutes. First, it violates section 860.01, Florida Statutes (1981) (now section 316.1931). Section 860.01 provides:

Driving automobile while intoxicated; punishment.--

(1) It is unlawful for any person, while in an intoxicated condition or under the influence of intoxicating liquor, model glue, as defined in s. 877.11, or any substance controlled under chapter 893 to such extent as to deprive him of full possession of his normal faculties, to drive or operate over the highways, streets, or thoroughfares of Florida any automobile, truck, motorcycle, or other vehicle. Any person convicted of a violation of this section shall be punished as provided in s. 316.193.

(2) If, however, damage to property or person of another, other than damage resulting in death of any person, is done by said intoxicated person under the influence of intoxicating liquor to such extent as to deprive him of full possession of his normal faculties, by reason of the operation of any of said vehicles mentioned herein, he shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, and if the death of any human being be caused by the operation of a motor vehicle by any person while intoxicated, such person shall be deemed guilty of manslaughter, and on conviction be punished as provided by existing law relating to manslaughter.

(3) Convictions under the provisions of this section shall not be a bar to any civil suit for damages against the person so convicted.

"Second, it violated section 782.071, Florida Statutes (1981) which states:

Vehicular homicide.--'Vehicular homicide' is the killing of a human being by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another. Vehicular homicide is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

"The state attorney chose to charge appellant with only having violated section 860.01, in two counts, one for each death.

"Based upon the charge for DWI manslaughter the prosecutor was required to prove appellant drove a motor vehicle over a highway while intoxicated to the extent his normal faculties were impaired and that the death of the child occurred as a result of an accident involving appellant. The state apparently failed to prove its charge because the jury found appellant not guilty of it.

"What the jury did was find the appellant guilty of vehicular homicide--a crime which the state attorney did not charge appellant with having committed. The jury was able to do that because the judge, over the objection of appellant, instructed the jury that vehicular homicide is a lesser offense included within the definition of the crime of DWI manslaughter. It is proper, and usually required, for a trial judge to instruct the jury to find an accused guilty of a lesser crime if it finds the proof is sufficient to establish that the accused committed that crime but not sufficient to prove he committed the greater, inclusive crime. A crime is a lesser included crime if it has fewer elements than another crime which has all the elements of the lesser crime, plus at least one more. For example, the crime of armed robbery includes the crime of unarmed robbery; the proof of robbery requires less proof than does the proof of armed robbery. In the latter it must be proved the accused was armed. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

"The critical legal problem in this case is that vehicular homicide is not a lesser included offense under DWI manslaughter. Mastro v. State, 448 So.2d 626 (Fla. 2d DCA 1984). But see Spillane v. State, 458 So.2d 838 (Fla. 4th DCA 1984). This notwithstanding the fact that it is listed as a category 1 lesser included offense in the Supreme Court approved compilation of 'Florida Standard Jury Instructions in Criminal Cases.' In the Matter of Use by the Trial Courts of Standard Jury Instructions in Criminal Cases (and the Standard Jury Instructions in Criminal Cases), 431 So.2d 594 (Fla.1981).

"It was very clearly stated...