Chikitus v. ShandsChikitus v. Shands
We have for review by pеtition for writ of certiorari the March 14, 1978, order of the District Court of Appeal, Second District, Case No. 78-403, denying the petition of Michael Wade Chikitus for writ of prohibition. We have jurisdiction pursuant to
Chikitus, while driving an automobile, was involved in an accident which rеsulted in the death of two people. He was charged with, pled nolo contendere to, and was convicted of willful and wanton reckless driving contrary to
Chikitus argues that, since by its statutory definition “‘vehicular homicide’ is the
The respondent argues that Chikitus waived his double jеopardy claim when he pled nolo contendere to the reckless driving charge because there is now no way to determine whether the vehicular homicide offense is based upon the same evidence that would have been used to procure a conviction on the reckless driving charge.
Our recent decisions in McCreary v. State, 371 So.2d 1024 (Fla. 1979), and State v. Young, 371 So.2d 1029 (Fla. 1979), hold that vehicular homicide is a lesser included offense of manslaughter by culpable negligence in the oрeration of a motor vehicle. In McCreary, we stated that the legislature did not act in an unreasonable manner when it created vehicular homicide to cover the hiatus between manslaughter and reckless driving. Under оur rationale in McCreary and Young, vehicular homicide cannot be proven without also proving the elements of reckless driving. Accordingly, we hold that reckless driving is a lesser included offense of vehicular homicide and that double jeopardy applies to bar a subsequent prosecution for vehicular homicide when a defеndant previously has been convicted of the charge of reckless driving arising from the same facts. We reject respondent‘s argument that Chikitus waived his double jeopardy claim by pleading nolo contenderе because the operation of double jeopardy as a bar to prosecution is triggered, nоt by the nature of the evidence adduced at the prior trial but by the elements of the previous crime сharged.
Respondent also argues that since the offense of reckless driving is a “continuing offense,” it may be a completed offense at every point along the route of travel, and therefore it is possible that Chikitus’ reckless driving conviction was based on his driving which occurred prior to the impact that causеd the deaths. Under such circumstances, respondent argues, double jeopardy would not apply since the charges would not arise out of the same facts. This argument is not supported by the charging documents. Thе complaint charging reckless driving and the information charging vehicular homicide both allege the aсcident as the ultimate fact supporting the respective charges. In view of this, we cannot say that thе charge of vehicular homicide is based on different facts than the charge of reckless driving so as to prevent the application of double jeopardy. A different situation might be presented and doublе jeopardy may not apply if the reckless driving complaint had been based upon ultimate facts different from the accident that caused the deaths.
Accordingly, we hold that Chikitus’ prior conviction of reсkless driving is a bar to his subsequent prosecution for vehicular homicide arising from the same facts. We issue the writ аnd quash the decision of the Second District and remand the cause for proceedings consistent with this opinion.
It is so ordered.
ENGLAND, C.J., and ADKINS, BOYD, OVERTON and SUNDBERG, JJ., concur.