Luzardo v. State

• Decision Date: 01 October 2014
• Docket Number: No. 3D13–1678.,3D13–1678.
• Citation: 147 So.3d 1083
• Parties: Luis Enrique LUZARDO, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

147 So.3d 1083

Luis Enrique LUZARDO, Appellant

v.The STATE of Florida, Appellee.

No. 3D13–1678.

District Court of Appeal of Florida, Third District.

Oct. 1, 2014.

Albert E. Acuña, for appellant.

Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney General, for appellee.

Before SHEPHERD, C.J., and LAGOA and FERNANDEZ, JJ.

Opinion

SHEPHERD, C.J.

This is an appeal by Luis Luzardo from a conditional plea of guilt, during which he expressly reserved for review a dispositive order denying his motion to dismiss a vehicular homicide charge informed against him.¹ Luzardo argued below and maintains here that (1) his actions did not meet the level of recklessness required to convict him under the law, and (2) the conscious decision of the driver of the other vehicle to stop in Luzardo's lane of traffic was the actual cause of the accident. After careful study, we conclude that while Luis Lazardo's operation of his motor vehicle may have been careless, even negligent, it did not meet the level of recklessness required to convict him of vehicular homicide, and therefore, direct his discharge from custody in this case.² A brief summary of the facts of the case is necessary to explain our decision.

FACTUAL AND PROCEDURAL HISTORY

The accident in this case occurred on the Tamiami Trail at approximately 9:54 a.m. on Sunday, May 8, 2011, at the entrance to Gator Park, a small airboat and tourist attraction located on the south side of the Tamiami Trail in Miami–Dade County. Tamiami Trail is a narrow, straight, two-lane road originally constructed in the 1920's, which traverses the Everglades in an east-west direction. Gator Park is located approximately 6.2 miles west of Krome Avenue, the demarcation for our purposes of the western-most population boundary of Miami–Dade County. The morning was clear and sunny. The traffic, as captured on a Gator Park surveillance video camera which serendipitously included the road in its scope, was light.

At the time of the accident, Luis Luzardo was travelling eastbound on Tamiami Trail in a white Ford Expedition at 83.9 miles per hour. The speed limit in the area, and on most of Tamiami Trail, is posted at 55 miles per hour. Luzardo and a friend were returning to Miami after one of their periodic bike rides in the area. Luzardo was familiar with the road and the location of Gator Park. Michelle Ward, a tourist from the United Kingdom, was driving in the opposite direction, heading to Gator Park with three friends to experience an airboat ride. She was driving a black Chevrolet Impala, which she had leased just the day before. She was unfamiliar both with the vehicle she was driving and the area in which she was travelling. She needed to get to Gator Park by 10:00 a.m. to obtain a discounted price on the airboat tickets.

Ward testified that as she approached Gator Park, she saw an available parking space in front of the building. She further testified that after deciding it was safe to do so, she commenced a left turn toward the available space, but applied her brakes in the middle of the eastbound lane when one of her passengers told her of Luzardo's approaching vehicle. When Luzardo realized Ward was not going to complete her turn, Luzardo attempted to swerve around Ward's vehicle, but his diversionary maneuver was unsuccessful. Luzardo's Ford Expedition impacted the rear right passenger door of the black Impala, killing Rachel May Coulson.

The Florida Highway Patrol initially attributed the accident to Michelle Ward and charged her non-criminally with violating Luis Luzardo's right of way by turning left in front of oncoming traffic under section 316.122 of the Florida Statutes (2011). Over a year later, however, the State had a change of mind. Claiming “newly discovered evidence,” it dismissed the non-criminal violation against Michelle Ward and charged Luzardo with “feloniously operat [ing] a motor vehicle in a reckless manner, to wit: SPEEDING WITHOUT REGARD FOR THE SAFETY OF OTHERS” in violation of section 782.071(1) of the Florida Statutes.^{3 , 4} Both here and below Luzardo incants, in response, the oft-repeated statement in these type cases, that excessive speed alone will not support a conviction for vehicular homicide pursuant to this statute. Although we eschew the box-checking legal methodology implied by the chant, we agree that the facts of this case do not rise to the level of recklessness necessary to support the conviction and sentence.

ANALYSIS

The vehicular homicide statute in effect at the time of the accident in this case reads as follows: “ ‘Vehicular homicide’ is the killing of a human being, or the killing of a viable fetus by any injury to the mother, caused 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. § 782.071, Fla. Stat. (2011) (emphasis added). Vehicular homicide is a lesser included offense of manslaughter, created to cover the hiatus between manslaughter by culpable negligence and the non-criminal traffic offense of reckless driving created by section 316.029, Fla. Stat. (1975). McCreary v. State, 371 So.2d 1024, 1026 (Fla.1979). The culpable conduct necessary to sustain proof of manslaughter under section 782.07 is conduct of “a gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them.” Id. Luzardo's conduct in this case does not rise to that level.

Neither carelessness nor ordinary negligence in the operation of a motor vehicle are sufficient to sustain a conviction for vehicular homicide. By definition, the crime of vehicular homicide requires proof of the elements of reckless driving. See State v. Lebron, 954 So.2d 52 (Fla. 5th DCA 2007) ; see also D.E. v. State, 904 So.2d 558 (Fla. 5th DCA 2005) ; State v. Del Rio, 854 So.2d 692 (Fla. 2d DCA 2003). Reckless driving, in turn, is defined as driving “... in willful or wanton disregard for the safety of persons or property ....” § 316.192(1)(a), Fla. Stat. (2012). “Willful” means “intentional, knowing and purposeful” and “wanton” means “with a conscious and intentional indifference to consequences and with the knowledge that damage is likely to be done to persons or property.” See W.E.B. v. State, 553 So.2d 323 (Fla. 1st DCA 1989). In our view, the facts of this case, as unfortunate as they are, do not present a prima facie case of reckless driving either.

The determination of a prima facie case of recklessness in a vehicular homicide case is a fact intensive, ad hoc inquiry. The focus is on the actions of the defendant and, considering the circumstances, whether it was reasonably foreseeable that death or great bodily harm could result. D.E. v. State, 904 So.2d 558, 562 (Fla. 5th DCA 2005). Most of the cases we have found that uphold a vehicular homicide conviction consist of facts much more egregious than ours. See, e.g. Santisteban v. State, 72 So.3d 187 (Fla. 4th DCA 2011) (finding reckless driving when defendant drove a gasoline truck, filled with 9,000 gallons of fuel, at excessive speeds around a curving highway ramp, while weaving around other drivers); State v. Lebron, 954 So.2d 52 (Fla. 5th DCA 2007) (finding reckless driving where defendant, while speeding, attempted to pass a slower vehicle from the right lane, in the middle of traffic); D.E. v. State, 904 So.2d 558 (Fla. 5th DCA 2005) (finding sufficient evidence to support reckless driving, when juvenile knowingly drove the car without adult supervision in violation of the law, far in excess of the speed limit, around a dangerous curve, near a school, in the dark, and in an area likely to become congested); Martinez v. State, 692 So.2d 199 (Fla. 3d DCA 1997) (finding sufficient evidence to support a conviction for vehicular homicide where defendant drove 70 mph in a 30–mph zone, on a curving section of road, while passing another vehicle in a no-passing zone); Lewek v. State, 702 So.2d 527 (Fla. 4th DCA 1997) (finding evidence was sufficient to establish reckless driving where defendant drove a car with shallow tire treads, a missing lug nut, and window tinting that was too dark at 60 mph in a 45–mph zone and failed to reduce speed for a yellow light, subsequently running a red light); State v. Knight, 622 So.2d 188 (Fla. 1st DCA 1993) (finding a prima facie case for vehicular homicide where defendant did not possess a valid driver's license, was driving 65–70 mph in a 35–mph residential area, and was operating a damaged vehicle without the consent of the owner); Wright v. State, 573 So.2d 998 (Fla. 1st DCA 1991) (evidence was sufficient to sustain a vehicular homicide conviction where defendant had consumed both a full quart and half a six-pack of malt liquor, was travelling approximately 20 mph over the speed limit, was driving in the oncoming lane of traffic to pass another vehicle, and did not attempt to slow down or maneuver to avoid striking the victim); Byrd v. State, 531 So.2d 1004 (Fla. 5th DCA 1988) (finding sufficient evidence to sustain a conviction for vehicular homicide where defendant drove at twice the posted speed limit in heavy traffic, was warned to slow down, and only tried to stop about six feet from another stopped vehicle); Savoia v. State, 389 So.2d 294 (Fla. 3d DCA 1980) (finding sufficient evidence to support a vehicular homicide conviction where defendant, driving on a wet road, drove at 90 mph while intoxicated and crashed into a parked truck without attempting to apply brakes). Additionally, it is important to note that speeding is not itself a necessary component of vehicular homicide, as evidenced by multiple c...