VAN HUBBARD v. State
Decision Date | 28 September 1998 |
Docket Number | No. 97-2666.,97-2666. |
Citation | 748 So.2d 288 |
Parties | Frederick VAN HUBBARD, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Robert R. Kimmel of Kimmel & Batson, Pensacola, for Appellant.
Robert A. Butterworth, Attorney General, and Stephen R. White, Assistant Attorney General, Tallahassee, for Appellee.
Appellant Frederick Van Hubbard appeals from his judgment and sentence for DUI manslaughter. He challenges the jury instruction used for DUI manslaughter and the improper admission into evidence of prior bad acts evidence. We reverse because the majority of courts that have considered the issue have concluded that simple negligence is an element of the crime of DUI manslaughter in Florida. We further find that the prior bad acts evidence was improperly admitted.
The pertinent portion of the manslaughter by intoxication statute provides:
In Magaw v. State, the Florida Supreme Court opined that this statute, as amended in 1986, contained an explicit requirement of causation:
In view of the history of chapter 86-296, the legislative intent is clear. We conclude that the 1986 amendment introduced causation as an element of the crimes proscribed by section 316.193(3). We caution, however, that the statute does not say that the operator of the vehicle must be the sole cause of the fatal accident. Moreover, the state is not required to prove that the operator's drinking caused the accident. The statute requires only that the operation of the vehicle should have caused the accident. Therefore, any deviation or lack of care on the part of a driver under the influence to which the fatal accident can be attributed will suffice.
537 So.2d 564, 567 (Fla.1989) (emphasis supplied).
The statute, as amended in 1986, expressly requires causation by the intoxicated operator of a motor vehicle. See § 316.193(3)(c), Fla. Stat. (1995). The statute makes no mention of negligence or deviation from a reasonable standard of care by such operator. Three of the five district courts of appeal in this state, however, have concluded that under Magaw, simple negligence is an element of the crime. See Foster v. State, 603 So.2d 1312 (Fla. 1st DCA 1992),review denied, 613 So.2d 4 (Fla.1993); Kurtz v. State, 564 So.2d 519 (Fla. 2d DCA 1990); Jones v. State, 698 So.2d 1280 (Fla. 5th DCA),review denied, 703 So.2d 476 (Fla.1997). An instruction requiring "deviation or lack of care" was given in Naumowicz v. State, although the court did not comment on the correctness of the instruction. 562 So.2d 710, 712 (Fla. 1st DCA 1990), review denied, 576 So.2d 289 (Fla.1991). In Foster, this court held that under the 1986 amendment, the jury should be informed that the defendant must have "been at least negligent in the operation of the vehicle, and that such negligence has been a cause of the victim's death." 603 So.2d at 1316.
The Fourth District has held that the standard jury instruction for DUI manslaughter need not be broadened to specify lack of care as a distinct element of the charge. See Melvin v. State, 677 So.2d 1317 (Fla. 4th DCA 1996). In so holding, the Fourth District noted that explicit in the standard jury instruction "is a determination by the jury of causation...." 677 So.2d at 1318. The Fourth District declined to construe the Magaw opinion as "requiring that the standard instruction be broadened to specify lack of care as a distinct element." Id.
In the present case, appellant requested the following special jury instruction, adapted from language in Magaw and Naumowicz:
Over the defendant's objection, the trial court utilized the standard instruction adopted by the Florida Supreme Court in 1992. See Standard Jury Instructions-Criminal Cases (92-1), 603 So.2d 1175, 1195 (Fla.1992). Specifically, the court instructed the jury as follows:
Now, as to the first charge in count one, D.U.I. manslaughter,
This instruction recited verbatim the elements of the standard jury instruction for DUI manslaughter for which the Supreme Court had, in the opinion adopting the instruction, cited as authority its 1989 Magaw opinion. Id. The standard instruction clearly requires causation, but does not mention negligence or deviation from a reasonable standard of care.
Very recently the Supreme Court has adopted a revised DUI manslaughter instruction, again citing Magaw as authority for the causation element:
Standard Jury Instructions in Criminal Cases (97-2), 723 So.2d 123 (Fla.1998). Although the newly approved instruction has rearranged the elements of causation somewhat, it mentions neither negligence nor deviation from a standard of care, and expressly requires the jury to determine whether or not the defendant's operation of a motor vehicle, while the defendant was under the influence, or had an unlawful blood alcohol, caused or contributed to the cause of the death of the victim.
Of course, the fact that the Supreme Court has adopted a standard jury instruction does not make that instruction...
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...obstacle for the prosecutor to overcome. §154.4 Court Erred in Giving Instruction in DUI Manslaughter Case In Van Hubbard v. State , 748 So.2d 288 (Fla. App. 1998), the defendant was convicted and sentenced for DUI manslaughter. On appeal, the defendant challenged one of the jury instructio......