Sands v. State, 75--731
| Decision Date | 09 March 1976 |
| Docket Number | No. 75--731,75--731 |
| Citation | 328 So.2d 563 |
| Parties | Ralph Owen SANDS, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Gerald Kogan, Miami, for appellant.
Robert L. Shevin, Atty. Gen., J. Robert Olian, Asst. Atty. Gen., and Joseph F. Iracki, Legal Intern, for appellee.
Before PEARSON, HENDRY and NATHAN, JJ.
Ralph Owen Sands was charged by information in Count I with manslaughter by operating a motor vehicle while intoxicated and in Count II, with manslaughter by culpable negligence. After non-jury trial, the court found Sands not guilty as to Count II and guilty of 'driving under the influence of intoxicated (sic) beverage causing property damage and injury,' as a lesser degree of Count I of the information, and sentenced Sands to one year in the county jail.
Sands contends that the offense of which he was convicted is not a lesser degree of the charge of manslaughter by operating a motor vehicle while intoxicated, but is a separate and distinct offense, and, therefore, he should be discharged because the State was limited to the prosecution of the offense of manslaughter for which he was found not guilty. The State agrees with defendant Sands that the court so erred and cross-appeals, requesting this court to reverse and remand with directions to find Sands guilty of manslaughter. Section 860.01, Fla.Stat., provides in pertinent part:
'(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 § 775.082 or § 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.'
In construing § 860.01, Fla.Stat., the trial judge concluded that the first part of subsection (2) of the statute, which pertains to damage to person or property of another done by an 'intoxicated person under the influence of intoxicating liquor to such extent as to deprive him of full possession of his normal faculties,' does not require as high a degree of intoxication as the word 'intoxicated' as it is used later in the same section relating to manslaughter. 1 We do not agree. Being 'under the influence of intoxicating liquor' and being 'intoxicated' are different terms and do not have the same meaning. Cannon v. State, 1926, 91 Fla. 214, 107 So. 360; Clowney v. State, Fla.1958, 102 So.2d 619. However, 'being under the influence of intoxicating liquor to such an extent as to deprive one of the normal control of one's body or mental faculties, or both,' or 'under the influence of intoxicating liquor to such extent as to deprive him of full possession of his normal faculties,' is equivalent to 'being intoxicated' as used in § 860.01, Fla.Stat. Clowney v. State, supra; Hanemann v. State, Fla.App.1969, 221 So.2d 228. It follows then that 'damage to property or person of another, other than damage resulting in death . . . by said intoxicated person under the influence of intoxicating liquor to such extent as to deprive him of full possession of his normal faculties,' is a separate and distinct offense and not a lesser included offense of 'death . . . caused by the operation of a motor vehicle by any person while intoxicated.' This is buttressed by the fact that while the elements of the two crimes set forth within subsection two of the statute are identical, the statute makes it clear that damage to person by an intoxicated person and death by an intoxicated person are two different offenses and neither offense is comprehended to be within the scope of the other. Moreover, considering that the accusatory pleading (information) in this case charged Sands with manslaughter, and that all the evidence that was adduced proved that the alleged act of Sands did result in death, there is no rationale for reducing the offense of manslaughter to injury to the person.
Sands, then, not being tried or convicted of the offense with which he was charged, and the offense on which he was convicted not being a lesser included offense, but a separate and distinct one, his conviction must be reversed. Johnson v. State, Fla.App.1969, 226 So.2d 884; Causey v. State, Fla.App.1975, 307 So.2d 197.
We now consider the...
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...by returning a verdict of guilty on the lesser offense of battery. Greene v. City of Gulfport, 103 So.2d 115 (Fla.1958); Sands v. State, 328 So.2d 563 (Fla. 3d DCA 1976).1 It is obvious that this is what the jury did. If Redondo, as it concluded, committed a battery, it must have been an ag......
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Ramos v. State, 83-949
...is not subject to dismissal even in instances where double jeopardy would bar a retrial of the defendant. See Sands v. State, 328 So.2d 563 (Fla. 3d DCA 1976) (State's cross-appeal from acquittal of manslaughter in non-jury trial considered; relief sought on cross-appeal denied on double je......
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R. A. B. v. State, 78-2200
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