State v. Barritt
| Decision Date | 29 September 1988 |
| Docket Number | No. 71624,71624 |
| Citation | 13 Fla. L. Weekly 591,531 So.2d 338 |
| Parties | 13 Fla. L. Weekly 591 STATE of Florida, Petitioner, v. Anthony BARRITT, Respondent. |
| Court | Florida Supreme Court |
Robert A. Butterworth, Atty. Gen. and Royall P. Terry, Jr., Asst. Atty. Gen., Tallahassee, for petitioner.
Michael E. Allen, Public Defender and P. Douglas Brinkmeyer and Pamela D. Presnell, Asst. Public Defenders, Second Judicial Circuit, Tallahassee, for respondent.
We review Barritt v. State, 517 So.2d 65 (Fla. 1st DCA 1987), in which the district court held that reckless driving is a necessarily lesser included offense of vehicular homicide. The district court certified the following question as one of great public importance:
Is reckless driving a necessarily lesser included offense of vehicular homicide such that, where a court refuses to give the requested instruction on reckless driving during a trial on vehicular homicide, it commits reversible error?
Id. at 68. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.
Respondent was charged with leaving the scene of an accident involving personal injury and vehicular homicide. The trial court denied respondent's request for a jury instruction on reckless driving as a lesser included offense of vehicular homicide. * Respondent was found guilty on both counts and sentenced to five years on each count to run concurrently.
The First District reversed, finding respondent entitled to the requested instruction under this Court's decisions in Chikitus v. Shands, 373 So.2d 904 (Fla.1979), and State v. Wimberly, 498 So.2d 929 (Fla.1986). The First District perceived some lack of clarity, however, between these decisions and our statement in Martin v. State, 342 So.2d 501, 502 (Fla.1977), that where a homicide has taken place, "proper jury instructions are limited to those charges involving lawful and unlawful homicide," id. at 502, and certified the question presented.
In Chikitus, the defendant was convicted of reckless driving after causing an accident in which two people were injured. Subsequent to his convictions, the two accident victims died and the state attempted to charge Chikitus with vehicular homicide. This Court held that double jeopardy precluded any trial for vehicular homicide because the defendant's conviction for reckless driving stemmed from the same facts that supported the reckless driving conviction. 373 So.2d at 905. In that context, we recognized that the state could not prove vehicular homicide without also proving that the defendant had been driving in a reckless manner. Id. We adhere to Chikitus for double jeopardy purposes.
However, this case does not present a double jeopardy question. The issue here is only the appropriateness of legal instructions necessary to determine the degree of culpability at trial.
Technically, reckless driving is a necessarily lesser included offense of vehicular homicide. Normally, a defendant is entitled to an instruction on all necessarily lesser included offenses. Wimberly. Furthermore, a trial judge must give a requested instruction on a necessarily lesser included offense even when the evidence at trial, which is sufficient to convict of the lesser included offense, also incontrovertibly shows that the lesser included offense could not have been committed without also committing the greater charged offense. Id. at 930.
In this case, however, unquestionably a death occurred, and in cases of homicide we have treated the technically required instructions on lesser included offenses differently. In Martin, we held that a defendant who is charged with second-degree murder is not entitled to an instruction on aggravated assault even though aggravated assault technically may qualify as a lesser included offense of murder. 342 So.2d at 502. We reasoned that where death is not an issue, no rational purpose would be served by instructing on aggravated assault. Id. We find the rationale of Martin equally applicable when vehicular homicide is the charge.
Thus, Martin controls this case and mandates a negative answer to the certified question. If vehicular homicide is charged, a requested instruction on reckless driving need not be given where it is undisputed that a death has occurred as a result of the accident. We thus quash the decision of the First District and remand for reinstatement of respondent's judgment and sentence.
It is so ordered.
SHAW, J., concurs specially in result only with an opinion.
The facts as given by the district court below were that respondent was driving fifty to sixty miles per hour in a forty-five mile-per-hour zone, apparently on a two-lane highway, while being closely chased by another vehicle. He attempted to pass a third vehicle on a hill as a semi-trailer approached from the opposite direction. As respondent pulled back into his lane, he struck the rear of the vehicle he was overtaking causing that vehicle to go broadside into the path of the semi-trailer. An occupant of the broadsided vehicle was instantly killed. Respondent veered into the ditch, emerged, stopped briefly, and then fled. He was charged with and convicted of vehicular homicide and leaving the scene of an accident involving personal injury. The trial court refused to give an instruction on reckless driving as a necessarily lesser included offense of vehicular homicide. On appeal, the district court noted that vehicular homicide was not listed in the Schedule of Lesser Included Offenses of the Florida Standard Jury Instructions in Criminal Cases but concluded that it was legally impossible to prove vehicular homicide without proving reckless driving and therefore reckless driving was a necessarily lesser included offense of vehicular homicide. The district court then canvassed this Court's case law, e.g., Chikitus v. Shands, 373 So.2d 904 (Fla.1979), State v. Wimberly, 498 So.2d 929 (Fla.1986), Martin v. State, 342 So.2d 501 (Fla.1977), and found disarray but concluded that the conviction for vehicular homicide should be reversed for failure to instruct on a necessarily lesser included offense. Chikitus; Wimberly. Because of conflict with Martin, the district court certified a question of great public importance Is reckless driving a necessarily lesser included offense of vehicular homicide such that, where a court refuses to give the requested instruction on reckless driving during a trial on vehicular homicide, it commits reversible error?
Barritt v. State, 517 So.2d 65, 68 (Fla. 1st DCA 1987). Relying on Chikitus, the majority holds that "[t]echnically, reckless driving is a necessarily lesser included offense of vehicular homicide," at 339, and that Wimberly normally requires that the conviction be reversed for failure to instruct on a necessarily lesser included offense. However, relying on Martin, the majority concludes that, in this case, reversal is not appropriate because a death occurred and the certified question should be answered in the negative. I concur in the result but write separately because the rationale of the majority is irrelevant to the issue posed and perpetuates superseded law.
The legislature has established a specific test for determining whether two offenses are separate offenses subject to separate convictions and separate punishments, or whether one of the offenses may be presented as a jury alternative because it is a lesser included offense of the other, i.e., is not a separate offense.
The plenary power to define offenses and prescribe their punishment rests exclusively with the legislative branch. Whalen v. United States, 445 U.S. 684, 689, 100 S.Ct. 1432, 1436, 63 L.Ed.2d 715 (1980), and cases cited therein; Bradley v. State, 79 Fla. 651, 84 So. 677 (1920); Hutchinson v. State, 315 So.2d 546 (Fla. 2d DCA 1975). It is not the prerogative of the courts, based on the accusatory pleadings or the proof adduced at trial, to instruct juries that they may treat statutorily defined separate offenses as lesser included offenses.
Wilcott v. State, 509 So.2d 261, 264 (Fla.1987) (Shaw, J., dissenting). The statutory elements of vehicular homicide include the killing of a human being. § 782.071, Fla.Stat. (1985). The statutory elements of reckless driving include disregard for the safety of persons or property. § 316.192, Fla.Stat. (1985). Each offense contains a statutory element not present in the other which by statutory definition means they are separate offenses subject to separate convictions and punishment. § 775.021(4), Fla.Stat. (1985). The conclusion of the majority, and the court below, that reckless driving is a lesser included offense of vehicular homicide is thus by statutory definition erroneous. Application of section 775.021(4) ends the inquiry and resolves the case. Respondent was not entitled to a lesser included instruction because reckless driving is a separate offense from, and not a lesser included offense of, vehicular homicide.
The correctness of the above analysis is confirmed by recent legislative action. Chapter 88-131, section 7, Laws of Florida, amends section 775.021(4) to read as follows (changes are underlined):
(4)(a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.
(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as...
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