LUIS GONZALEZ v. STATE OF FLORIDA
Case No. 2D13-5575
IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
July 8, 2016
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED
Opinion filed July 8, 2016.
Appeal from the Circuit Court for Lee County; Edward J. Volz, Jr., Judge.
Howard L. Dimmig, II, Public Defender, and Christopher Desrochers, Special Assistant Public Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.
NORTHCUTT, Judge.
Luis Gonzalez appeals following his convictions for the August 8, 2008, offenses of failing to stop or remain at the scene of a crash resulting in death and of manslaughter. He challenges the reclassification of his manslaughter offense from a second-degree to a first-degree felony based on the use of a “weapon,” which in this case was actually an automobile. We reverse and remand for the offense to be classified as a second-degree felony and for Gonzalez to be resentenced on that offense.
Tia Poklemba was discovered sitting in the road in the early morning hours. She was barely alive, and she died shortly after emergency services arrived. The police investigated the death as a hit-and-run, and they were able to determine that she left a bar the night before with Luis Gonzalez. The State‘s evidence showed that the victim was struck by the front end of Gonzalez‘s car at low speed and then hit a second time when the car backed over her. Gonzalez was charged with and convicted of manslaughter and leaving the scene; he
On appeal, Gonzalez argues that the trial court erred by reclassifying the second-degree manslaughter conviction to a first-degree felony. This case is controlled by the supreme court‘s opinion in State v. Houck, 652 So. 2d 359 (Fla. 1995). In that case, the supreme court defined what constitutes a “weapon” in the general reclassification statute,
In Houck, the defendant was convicted of manslaughter with a weapon based on evidence that he killed the victim in a fight by banging the victim‘s head against the pavement. The trial court entered a conviction for a first-degree felony based on the use of a weapon. In an en banc opinion, the Fifth District Court of Appeal reversed the reclassification of the conviction from a second- to a first-degree felony. Houck v. State, 634 So. 2d 180 (Fla. 5th DCA 1994) (en banc). The supreme court approved that decision and the Fifth District‘s holding that the pavement was not a weapon. 652 So. 2d at 360. Because the word “weapon” was not defined in this statute, the supreme court used the common or ordinary meaning of the word, to wit: “[a]n instrument of attack or defense in combat, as a gun or sword. . . . [or] [a] means used to defend against or defeat another.” Id. (quoting American Heritage College Dictionary 1529 (3d ed. 1993)). The supreme court concluded that “[a] paved surface is not commonly understood to be an instrument for combat against another person.” Id.
In State v. Burris, 875 So. 2d 408 (Fla. 2004), the supreme court considered the question of whether one could “carry” an automobile for purposes of the reclassification statute,
In State v. Houck, 652 So. 2d 359 (Fla. 1995), this Court interpreted “weapon” in the context of
section 775.087, Florida Statutes (1991) , the general enhancement statute. We stated that “[t]he obvious legislative intent . . . is to provide harsher punishment for, and hopefully deter, those persons who use instruments commonly recognized as having the purpose to inflict death and serious bodily injury upon other persons.” State v. Houck, 652 So. 2d at 360 (quoting Houck v. State, 634 So. 2d 180, 184 (Fla. 5th DCA 1994)). However, despite this recognition of legislative intent, we declined to define any object that may be used to inflict death or serious bodily injury as a deadly weapon. So, in Houck, we rejected the State‘s argument that pavement could qualify as a weapon to enhance a homicide crime, in part because “[a] paved surface is not commonly understood to be an instrument for combat against another person.” Houck, 652 So. 2d at 360.
Burris, 875 So. 2d at 412-13. And, significant to this case, the supreme court stated: “Like the pavement used by the offender
This is a question of law for the court, not a question of fact for the jury. Houck, 652 So. 2d at 360. As a matter of law, the automobile driven by Gonzalez was not a weapon under the general reclassification statute,
Affirmed in part, reversed in part, and remanded.
LaROSE and KHOUZAM, JJ., Concur.