State v. Hacker, 85-2413
| Decision Date | 15 October 1986 |
| Docket Number | No. 85-2413,85-2413 |
| Citation | 510 So.2d 304,11 Fla. L. Weekly 2182 |
| Parties | 11 Fla. L. Weekly 2182 STATE of Florida, Appellant, v. Brian HACKER, Appellee. |
| Court | Florida District Court of Appeals |
We grant appellee's motion for rehearing but treat it as a motion for clarification. Accordingly, the following clarified opinion is substituted for our August 27, 1986 opinion.
The state appeals the order granting defendant Brian Hacker's motion to dismiss Count I of the indictment charging him with one count of first-degree felony murder (Count I), four counts of robbery with a deadly weapon, one count of illegal possession of a sawed-off shotgun, one count of vehicular homicide, one count of carrying a concealed firearm, and one count of grand theft. We reverse.
The facts set forth in the motion to dismiss were as follows:
On December 2, 1984, between the hours of approximately 7:00 p.m. to 8:00 p.m. several robberies occurred in the Boynton Beach area. The last two (2) of these robberies occurred at a Mobil and Amoco gas station [sic] located at the Northeast and Southeast corners respectively of the intersection of Seacrest and Hypoluxo. The suspects fled the immediate vicinity in a 1977 blue Chevrolet Camaro taken from the attendant at the Amoco gas station.
The suspects proceeded north on to I-95 via the Hypoluxo interchange and at approximately the underpass of I-95 and Lantana Road the 1977 Chevrolet Camaro became involved in a [sic] accident with a 1983 Mazda driven by Jose Diaz. Mr. Diaz later died as a result of the injuries he sustained in the collision.
A witness to the Amoco gas station robbery, Frank Mazzariello, attempted to follow and observe the 1977 Chevrolet Camaro but was unable to do either after the Camaro accelerated to approximately eighty-five (85) miles per hour along the northbound I-95 entrance ramp. When Mr. Mazzariello last saw the Camaro on the northbound I-95 entrance ramp there was no other person or persons in actual pursuit.
When the defendants Brian Hacker and Michael Westover were taken into custody, both of them made statements to [Palm Beach County] Sheriff's Detectives Jack Strenges and Jim Brooks.
The defendant Michael Westover stated the accident resulting in the death of Mr. Diaz was caused by a quarrel he had with the defendant Brian Hacker. The defendant Hacker, while arguing that the Camaro should not have been taken, attempted to grab the wheel causing Westover, who was driving, to lose control of the car and collide with the Mazda driven by Mr. Diaz.
Brian Hacker, when questioned, stated he argued with his co-defendant over the Camaro's speed and requested that the car be stopped and for them to take a taxi. During the argument the Camaro was involved in the accident but he does not know how.
At the hearing the State orally traversed the motion, as it was not given adequate time to present a written traverse. Appellee agreed with the oral traverse that Mr. Mazzariello lost sight of the Camaro on the entrance ramp to I-95 but did not stop until he came upon the automobile accident scene and that both defendants had already fled the scene of the accident. This fatal accident occurred approximately five minutes after appellee and Westover had committed the two robberies. Mr. Mazzariello had been unable to keep up with the Camaro even though he exceeded the speed limit. However, he did reach the accident scene within two minutes.
We hold that the trial court erred in granting appellee's motion to dismiss, because the homicide is alleged to have occurred during the perpetration of, and flight from, a robbery. The facts presented in the motion to dismiss and the oral traverse were sufficient to establish a prima facie case of first degree felony murder.
In Campbell v. State, 227 So.2d 873 (Fla.1969), cert. dismissed, 400 U.S. 801, 91 S.Ct....
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Delap v. Dugger
...event, a defendant who kills while fleeing from the commission of a felony can be convicted of felony murder. See State v. Hacker, 510 So.2d 304 (Fla. 4th Dist.Ct.App.1986) (prima facie case of first degree felony murder established where suspects fleeing robbery scene were involved in fata......
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Simmons v. State, 90-1017
...dismissed by 400 U.S. 801, 91 S.Ct. 7, 27 L.Ed.2d 33 (1970); Parker v. State, 570 So.2d 1048 (Fla. 1st DCA 1990); State v. Hacker, 510 So.2d 304 (Fla. 4th DCA 1986). ...