Leveritt v. State
| Decision Date | 09 February 2006 |
| Docket Number | No. 1D98-4519.,1D98-4519. |
| Citation | 924 So.2d 42 |
| Parties | Robert Charles LEVERITT, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
William J. Sheppard and D. Gray Thomas of Sheppard, White, Thomas & Kachergus, P.A., Jacksonville, for Appellant.
Charlie Crist, Attorney General, and Carolyn Mosley, Assistant Attorney General, for Appellee.
On Remand from the Florida Supreme Court
Robert Charles Leveritt was convicted of DUI manslaughter and vehicular homicide after the car he was driving hit a pole causing the death of his passenger. He appealed those convictions in this court raising several issues, including an argument that the jury instruction on presumption of impairment was invalid under State v. Miles, 775 So.2d 950 (Fla.2000), and that, even though appellant had not objected to the instruction at trial, the erroneous instruction was fundamental error. This court affirmed the DUI manslaughter conviction, vacated the vehicular homicide conviction, and certified a question of great public importance to the Florida Supreme Court as to whether it is fundamental error in a DUI trial to give a jury instruction which is erroneous under Miles.1 Leveritt v. State, 817 So.2d 891 (Fla. 1st DCA 2002) (Leveritt I). The Supreme Court accepted review. The Court noted that a similar question was raised in Cardenas v. State, 867 So.2d 384 (Fla.2004), and explained that, in Cardenas, the Court held that "an improper instruction on the statutory presumption of impairment, given contrary to the holding of Miles, is not fundamental error if the State charges driving with an unlawful blood alcohol level (DUBAL), and the jury is correctly instructed thereon, or if the jury is correctly instructed on actual impairment." Leveritt v. State, 896 So.2d 704, 705 (Fla.2005) (Leveritt II), quoting Cardenas, 867 So.2d at 397. In considering this question in the context of the instant case, however, the Supreme Court was "unable to ascertain from [the Leveritt I] opinion whether the giving of the presumption of impairment instruction was fundamental error based on the criteria set forth in Cardenas." Leveritt II, 896 So.2d at 705. Therefore, the Court answered the certified question in the negative, vacated our Leveritt I decision, and remanded the case back to this court "for reconsideration in light of Cardenas." Id. On remand, we have received supplemental briefing and heard additional oral argument from the parties. For the following reasons, we hold that the erroneous jury instruction was fundamental error, and we reverse and remand for further proceedings consistent with this opinion.
We read the very specific remand instructions of the Court as limiting the scope of our considerations on remand. The issue considered by the Court in Leveritt II was whether the improper jury instruction on the statutory presumption of impairment was fundamental error. The remand was necessary because the Court could not determine from our Leveritt I opinion whether the "presumption of impairment instruction was fundamental error based on the criteria set forth in Cardenas." Leveritt II, 896 So.2d at 705. Thus, although we possessed broad discretion in the manner in which we conducted the proceedings on remand, see Pritchett v. Brevard Naval Stores Co., 134 Fla. 649, 185 So. 134 (Fla.1938), we limit our consideration solely to the application of the Cardenas fundamental error analysis to the instant case.
Our analysis begins with the statutory framework under which this case proceeded. The DUI manslaughter statute, section 316.193(3), Florida Statutes (1997), incorporates the DUI statute, section 316.193(1). The DUI statute provides:
(1) A person is guilty of the offense of driving under the influence ... if the person is driving or in actual physical control of a vehicle within this state and:
(a) The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 87.111, or any substance controlled under chapter 893, when affected to the extent that the persons's normal faculties are impaired;
(b) The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or
(c) The person has a breath-alcohol level of 0.08 or more grams per 210 liters of breath.
"[S]ubsection (1)(a) requires proof of impairment, while the strict liability approach of subsections (1)(b) and (1)(c) requires proof of driving with an unlawful blood — or breath — alcohol level, otherwise known as DUBAL." Cardenas, 867 So.2d at 389-90. The amended information charged appellant with DUI manslaughter by reference to subsections (1)(a) and (1)(b).2
In Leveritt I, we described the factual and procedural background and the arguments relating to the fundamental error issue, as follows:
Following a day of playing golf with a friend, appellant lost control of his car on a rainy afternoon and was involved in a serious one-car accident. Appellant's passenger, his golfing friend and fellow U.S. Navy diver, was killed instantly. Appellant's blood was drawn at the hospital shortly after the accident, and an analyst for the Florida Department of Law Enforcement later tested the blood sample and found appellant's blood alcohol level to be .21. Appellant was charged with vehicular homicide and DUI manslaughter. Appellant moved to suppress results of the blood test. After an evidentiary hearing, the motion was denied.
At the ensuing trial, in addition to the blood test evidence, the prosecution adduced testimony from witnesses who saw appellant and the deceased passenger consuming Bloody Marys and beer on the day of the accident and other witnesses who smelled an odor of alcohol about the appellant's automobile after the accident. The evidence showed that there was, however, a period of several hours immediately prior to the accident during which appellant was not seen to have been drinking, and witnesses on the scene of the accident testified that they had not seen or found evidence of alcohol impairment in the accident. Without objection, the trial court instructed the jury to make certain presumptions of impairment pursuant to section 316.1934, Florida Statutes (1997), based on the blood alcohol test results, including the following:
If you find from the evidence that the defendant had a blood alcohol level of.08 percent [sic] or more, that evidence would be sufficient by itself to establish that the defendant was under the influence of alcohol to the extent that his normal faculties were impaired. However, such evidence may be contradicted or rebutted by other evidence.
The jury found appellant guilty on both counts. The trial court entered judgment adjudicating appellant guilty on both counts. This appeal ensued.
* * *
Appellant argues that the trial court reversibly erred in instructing the jury to make the statutory presumptions of impairment, see section 316.1934, Florida Statutes (1997), because rule 11D-8.012, Florida Administrative Code, the administrative rule implementing the implied consent statutes, was declared invalid under State v. Miles, 732 So.2d 350 (Fla. 1st DCA 1999), approved in part, quashed in part, 775 So.2d 950 (Fla. 2000), following the trial in the instant case. See also Mehl v. State, 632 So.2d 593, 595 (Fla.1993). As a result, contends appellant, the state may not rely on the statutory presumptions in proving the elements of DUI manslaughter. In response, the state argues that this issue is procedurally barred because the appellant failed to preserve the issue with an objection to the jury instruction. Further, on the merits, the state contends that even if rule 11D-8.012 is invalid, the blood test evidence was admissible below under the common law reliability test, citing Robertson v. State, 604 So.2d 783 (Fla.1992), and, as a result, the statutory presumptions still apply.
Leveritt I, 817 So.2d at 894-5.
In Leveritt I, after analyzing Miles, we concluded that "[i]t is clear from Miles (i) that rule 11D-8.012 is invalid and (ii) that the statutory presumptions of impairment cannot be used when admissibility of the blood test is based upon the common law Bender test." Id. at 896. Further, we expressly found that "[b]elow, no determination was made as to whether the three-prong common law predicate had been satisfied and the record does not reflect direct testimony as to the reliability of the blood test used, prong one of the common law predicate." Id. We held that the statutory presumption jury instructions were erroneous. We also found, however, that the error was not fundamental. Id. at 897. In finding no fundamental error we reasoned as follows:
In the instant case, a central issue is whether the giving of the presumption of impairment instruction constitutes fundamental error. "The doctrine of fundamental error should be applied only in rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application." Holiday v. State, 753 So.2d 1264, 1269 (Fla.2000)(quoting Smith v. State, 521 So.2d 106, 107-08 (Fla.1988)). To constitute fundamental error, the asserted error must be "equivalent to a denial of due process." Mordenti v. State, 630 So.2d 1080, 1084 (Fla.1994)(quoting State v. Johnson, 616 So.2d 1, 3 (Fla.1993)), or "error that `reach[es] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error,'" Barnes v. State, 743 So.2d 1105, 1108 (Fla. 4th DCA 1999)(quoting Kilgore v. State, 688 So.2d 895, 898 (Fla. 1996)). Although an erroneous instruction or failure to instruct as to an essential element of a crime may rise to the level of fundamental error, see Mercer v. State, 656 So.2d 555, 556 (Fla. 1st DCA 1995), we do not find that fundamental error occurred here.
We conclude that the instant case...
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