McGhee v. State
| Decision Date | 19 March 2003 |
| Docket Number | No. 4D01-1828.,4D01-1828. |
| Citation | 847 So.2d 498 |
| Parties | Eric McGHEE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
Eric McGhee appeals his sentences for driving under the influence ("DUI") manslaughter and DUI causing injury to the property of another. We affirm his sentence on the felony, and the imposition of DUI school as a special condition of probation on the misdemeanors, but reverse as to the other special conditions imposed.
McGhee entered an open plea to DUI manslaughter and five counts of DUI causing damage to the property of another based on a May 30, 1999, driving episode. He filed a written motion requesting a downward departure from the felony sentencing guidelines contending, among other grounds, that he committed the crime in an unsophisticated manner and the crime was an isolated incident for which he had shown remorse. After an evidentiary hearing, the trial judge denied the motion and sentenced McGhee to 10.9 years imprisonment on the DUI manslaughter. The trial judge also placed McGhee on concurrent terms of six months probation for the misdemeanor offenses of DUI property damage, imposing what the court termed "mandatory" special conditions that McGhee pay a $250 fine, attend Level 1 DUI school, perform fifty hours of community service, and have his car immobilized for ten days.
McGhee contends that the trial judge erred in determining that, as a matter of law, DUI cannot be committed in an unsophisticated manner, and in imposing the special conditions on his probation.
This court has held that the crime of DUI cannot be committed in an unsophisticated manner, as contemplated by section 921.0026(2)(j), Florida Statutes (Supp. 1998). See State v. Beck, 763 So.2d 506, 508 (Fla. 4th DCA 2000); State v. Warner, 721 So.2d 767, 769 (Fla. 4th DCA 1998). Both the first and second districts have disagreed. See Leveritt v. State, 817 So.2d 891, 898 (Fla. 1st DCA 2002); State v. VanBebber, 805 So.2d 918, 920-21 (Fla. 2d DCA 2001), review granted, 819 So.2d 139 (Fla.2002).
VanBebber is pending before the Florida Supreme Court. If the trial judge had found that, as a matter of law, DUI can not be committed in an unsophisticated manner, it may have been prudent for us to delay ruling pending the decision in VanBebber, however, the record does not support McGhee's contention that the trial judge declined to consider the issue. Instead, the sentencing hearing transcripts make clear that McGhee abandoned his contention that the crime was committed in an unsophisticated manner.1 McGhee presented no evidence to support his position. His counsel stated, when the trial judge questioned her at the first sentencing hearing about the motion for downward departure, At the conclusion of the continued sentence hearing, the trial judge asked whether the motion for downward departure was based on two arguments: McGhee's need for and amenability to mental health treatment and his professed inability to conform his actions to the requirements of law. Defense counsel responded "Yes, Judge."
The trial judge placed McGhee on six months probation for the crimes of DUI causing damage to the property of another, imposing what he described as "mandatory conditions" that McGhee pay a $250 fine, attend Level I DUI school, perform fifty hours of community service, and have his car immobilized for ten days. McGhee contends that under section 316.193(3), Florida Statutes (Supp.1998), these conditions are not mandatory.
Section 316.193 provides, in pertinent part:
Section 775.083(1)(d), Florida Statutes (1997) provides for a fine of up to $1,000.00 on a first-degree misdemeanor. There is no minimum fine.
Legislative intent controls statutory construction. See Reynolds v. State, 2002 WL 31856732, 842 So.2d 46, 47 (Fla. Dec. 19, 2002). Intent is most clearly manifested by the language used. Id. Consequently, there is no need to resort to principles of statutory construction where the statute's language is clear. Fla. Convalescent Ctrs. v. Somberg, 2003 WL 252155, 840 So.2d 998, 999 (Fla. Feb. 6, 2003).
McGhee contends that the trial judge erred in finding that he was required to impose any special conditions on his probation. He argues that, under section 316.193(3)(c)1., DUI causing damage to property is punishable solely as provided in section 775.082 and section 775.083, and that section 316.193(6) applies only to a conviction for violation of subsection (1) of the same section.
Section 316.193(5) by its terms applies to "any offender convicted of violating this section." In contrast, subsection (6) applies to "any person convicted of a violation of subsection (1)." The variation in wording is a distinction with a difference. See Parker v. State, 406 So.2d 1089, 1092 (Fla.1981). Subsection (5) requires probation and DUI school on any violation of section 316.193. Subsection (6)(a) requires community service and vehicle immobilization only on convictions for violations of subsection (1).2,3See Zopf v. Singletary, 686 So.2d 680, 681-82 (Fla. 1st DCA 1997) ().
Even if the statute were not clear on its face, application of traditional principles of statutory construction would lead to the same conclusion. The language of subsection (5) has been carried forward since the crime of DUI causing property damage was first incorporated into section 316.193 in 1986, and has been left substantially unaltered despite numerous other statutory revisions.4 Had the legislature not intended it to apply to DUI with property damage, it had every opportunity to amend it.
Importantly, subsection (6) limits the period of probation and incarceration for a first conviction to one year, a period inconsistent with section 316.193(3)c.2. and 3, which create first, second, and third degree felonies. Statutes should, whenever possible, be construed harmoniously. See Jones v. State, 813 So.2d 22, 25 (Fla. 2002); Graham v. Jenne, 837 So.2d 554, 558-59 (Fla. 4th DCA Feb.12, 2003). It is doubtful that the legislature intended to limit the term of incarceration on a first degree felony of DUI manslaughter to one year.
Finally, the statutory scheme makes sense: everyone convicted of DUI, in whatever form, must complete a substance abuse course. However, a trial judge is not required to make a violator convicted of DUI with personal injury or property damage perform community service or have his car immobilized. These terms may not be practical or desirable if a defendant is serving a long prison sentence prior to his probation.
Like section 316.193(6), and in contrast to subsection (5), section 316.193(2) applies only if the person is convicted of a violation of subsection (1). By its terms, it does not apply to those convicted of a violation of ...
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