McKnight v. State, 5D04-1261.

• Decision Date: 22 July 2005
• Docket Number: No. 5D04-1261.,5D04-1261.
• Citation: 906 So.2d 368
• Parties: Patrick McKNIGHT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

906 So.2d 368

Patrick McKNIGHT, Appellant, v. STATE of Florida, Appellee.

No. 5D04-1261.

District Court of Appeal of Florida, Fifth District.

July 22, 2005.

James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.

SAWAYA, J.

The issue we must resolve is whether the proscriptions against double jeopardy prohibit multiple convictions of first-degree vehicular homicide under section 782.071(1)(b), Florida Statutes (2001), for the death of each victim involved in a single accident caused by the defendant who subsequently fled the accident scene and failed to render aid to the victims.¹ We will not belabor the facts, which are especially tragic for the victims and their families. For purposes of the issue we must resolve, suffice it to say that McKnight was pulled over for a cracked windshield and consented to the officer's request to search both McKnight and the vehicle. At some point McKnight became uncooperative and suddenly left the scene in his vehicle. A pursuit ensued during which McKnight ran a red light and caused a collision with another vehicle. Two occupants of the other vehicle were killed and a third occupant was seriously injured. After the collision, McKnight got out of his vehicle and fled on foot. He was subsequently apprehended and arrested.

McKnight was charged with several offenses, but the two with which we are concerned here are the counts charging vehicular homicide for the deaths of each victim. Each of the two counts was charged as a first-degree felony under section 782.071(1)(b), Florida Statutes (2001), because McKnight failed to render aid to the victims. The case was tried, the jury found McKnight guilty as charged of both counts, and he was sentenced to two concurrent 30-year terms of imprisonment.² McKnight now contends that the prohibition against double jeopardy was violated when he was convicted of both counts of first-degree vehicular homicide.

The State argues that McKnight waived the double jeopardy argument because he did not raise it in the trial court. We reject that argument. Absent a knowing and voluntary waiver, which may occur when a defendant enters into a negotiated plea agreement with the state for a specific sentence, a violation of double jeopardy is fundamental error that may be raised for the first time on appeal. Novaton v. State, 634 So.2d 607 (Fla.1994); Safrany v. State, 895 So.2d 1145 (Fla. 2d DCA 2005); Hunsicker v. State, 881 So.2d 1166 (Fla. 5th DCA 2004), review denied, 894 So.2d 970 (Fla.2005). There is no such waiver here and, therefore, we will proceed to resolve the double jeopardy issue.

"Three basic protections emanate from the Double Jeopardy Clauses of the Federal and Florida Constitutions: 1) protection against a subsequent prosecution for the same offense after acquittal; 2) protection against a subsequent prosecution for the same offense after conviction; and 3) protection against multiple punishments for the same offense." Hunsicker, 881 So.2d at 1169 (citations omitted). McKnight's double jeopardy claim is based on the third category. In instances where the third category is implicated and multiple convictions are based on violations of different statutes, the courts apply the "same elements" test enunciated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), now codified in section 775.021(4), Florida Statutes (2001), to determine whether a double jeopardy violation has occurred. Cruller v. State, 808 So.2d 201 (Fla.2002); Gordon v. State, 780 So.2d 17 (Fla.2001); M.P. v. State, 682 So.2d 79 (Fla.1996).³ However, McKnight was charged and convicted of two violations of the same statute arising out of a single accident. In cases involving multiple violations of the same statute, the "same elements" test does not apply.⁴ In this instance, the courts apply the "allowable unit of prosecution" standard to determine whether a double jeopardy violation has occurred. Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978); Bautista v. State, 863 So.2d 1180 (Fla.2003); Wallace v. State, 724 So.2d 1176 (Fla.1998); Grappin v. State, 450 So.2d 480 (Fla.1984).

The "allowable unit of prosecution" standard recognizes that the Double Jeopardy Clauses are offended if multiple punishments are imposed for the same offense. The Legislature defines whether offenses are the same by prescribing the "allowable unit of prosecution," which is the aspect of criminal activity that the Legislature intended to punish. See United States v. Chipps, 410 F.3d 438 (8th Cir. 2005). In other words, it is a distinguishable discrete act that is a separate violation of the statute. The discovery of the allowable unit of prosecution is a task of statutory construction. Bautista; Wallace. If the Legislature fails to establish the unit of prosecution clearly and without ambiguity, we must resolve any doubt as to legislative intent by application of the rule of lenity. Bautista; Wallace; Grappin.

To discern legislative intent, we must apply a common-sense approach which requires that we consider the statutory language, the purpose of the statute, the evil to be corrected, the legislative history, and the pertinent case law that has applied the statute or similar enactments. Bautista, 863 So.2d at 1186 ("`To discern legislative intent, courts must consider the statute as a whole, including the evil to be corrected, the language, title, and history of its enactment, and the state of law already in existence on the statute.'") (quoting State v. Anderson, 764 So.2d 848, 849 (Fla. 3d DCA 2000)). Included within the ambit of this commonsense approach is the "a/any test," which is a "valuable but nonexclusive means to assist courts in determining the intended unit of prosecution." Bautista, 863 So.2d at 1188; see also Wallace; Grappin; Marin v. State, 684 So.2d 859 (Fla. 5th DCA 1996). When the article "a" is used by the Legislature in the text of the statute, the intent of the Legislature is clear that each discrete act constitutes an allowable unit of prosecution. Bautista; Bryan v. State, 865 So.2d 677 (Fla. 4th DCA 2004). Use of the adjective "any" indicates an ambiguity that may require application of the rule of lenity. Bautista.

We look first to the language of the vehicular homicide statute. Section 782.071, Florida Statutes (2001), provides:

"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.

(1) Vehicular homicide is:

(a) A felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(b) A felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if:

1. At the time of the accident, the person knew, or should have known, that the accident occurred; and

2. The person failed to give information and render aid as required by s. 316.062.

This paragraph does not require that the person knew that the accident resulted in injury or death.

Based on our examination of the language of this statute, we conclude that the legislative intent is clear that the death of each victim constitutes an allowable unit of prosecution. Even if we were unable to reach this conclusion from the language of the statute, our consideration of the other factors previously mentioned to discern legislative intent would lead us to that ultimate result.

The court in Bautista, in determining that separate convictions for DUI manslaughter are appropriate for each victim killed in a single accident, noted that DUI manslaughter fell within the general category of homicide offenses and explained:

The first enactment of the DUI manslaughter statute in 1923 provided that violations of the statute were to "be punished as provided by existing law relating to manslaughter." Ch. 9269, § 1, Laws of Fla. (1923). Prior to the 1923 legislation, there was no specific Florida statute dealing with manslaughter arising from the operation of motor vehicles, and these cases were prosecuted under the general manslaughter statute, which has existed, essentially in its present form, since 1868. The first manslaughter statute was enacted in 1868. It defined the offense as the killing of "one human being." When the homicide statute was revised in 1892, manslaughter was defined as the killing of "a human being." This statutory language, which has remained unchanged since 1892, indicates a clear legislative intent that the offense of manslaughter should be punished based on the number of victims rather than by reference to the particular act leading to the deaths.

Homicide statutes traditionally and uniformly impose punishment for each death caused by a defendant's criminal conduct. Homicides are punished based on the number of victims because the legislative purpose behind homicide statutes is to safeguard the lives of individuals. The Florida Legislature was guided by this purpose in enacting the DUI manslaughter statute; the unambiguous aim of the statute is to ensure the safety of individual citizens. Therefore, the gravamen of the offense of DUI manslaughter is not a traffic violation, but the killing of a human being.

863 So.2d at 1186 (footnotes and citations omitted).

Because vehicular homicide falls within the category of homicide crimes, we find this reasoning applicable to the instant case. Moreover, we note that section 782.071 states that "`[v]ehicular homicide' is the killing of a human being." The use of the article "a" clearly indicates the Legislature's intent that the death of each human being is the allowable unit of prosecution under the statute. Hence, separate convictions for vehicular homicide for...