Pierce v. StatePierce v. State
Robert A. Butterworth, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
STONE, J.
In 1992, Pierce, driving a pickup truck, hit three children; one child died and the other two were seriously injured. Pierce fled the scene without stopping. Although he did not raise the issue in the trial court, Pierce, in an initial appeal, argued that dual convictions as to the vehicular homicide/leaving the scene of an accident causing death, and leaving the scene of an accident causing injury, violated double jeopardy. However, in the initial appeal, our opinion did not explicitly address that claim. Pierce v. State, 718 So. 2d 806 (Fla. 4th DCA 1997). Rather, we indicated that we found merit in only two of Pierce‘s numerous issues. There, we held that Pierce could not be convicted of both driving with a suspended license and causing death and vehicular homicide based on a single death because it violated his rights against double jeopardy, and we recognized that Pierce could not legally receive consecutive enhanced sentences for crimes emanating from one criminal episode. Id. at 810-11.
On remand, however, Pierce argued that the court should not adjudicate him guilty of both counts I and II because the dual convictions violated his rights against double jeopardy. The trial court rejected this argument on the grounds that this court‘s previous Pierce opinion had rejected this position. However, in our initial Pierce
The state argues that the court should not address this issue as this court‘s earlier decision is the law of the case. See Strazzulla v. Hendrick, 177 So. 2d 1 (Fla.1965). We acknowledge that reconsideration of a point of law previously decided in a former appeal is a matter of grace, not a matter of right, and is not allowed when it would amount to nothing more than a second appeal on a question determined on the first appeal. However, an exception to this rule is recognized where strict adherence to the rule will result in manifest injustice. Id. at 4.
In Benedit v. State, 610 So. 2d 699 (Fla. 3d DCA 1992), the defendant raised a double jeopardy claim on direct appeal, but the appellate court rejected it without discussion. On a subsequent motion to vacate pursuant to
We cannot determine on this record precisely why the issue was not addressed in our initial opinion, although we note that in the earlier appeal, the state asserted that the double jeopardy issue was raised for the first time on appeal and cited Wright v. State, 573 So. 2d 998 (Fla. 1st DCA 1991). However, we are mindful that Wright has been effectively overruled in part by two subsequent cases, decided before our previous appeal in this case, recognizing that a court can address the propriety of convictions as well as sentences raised for the first time on appeal because a double jeopardy violation constitutes fundamental error. See Novaton v. State, 634 So. 2d 607 (Fla.1994); State v. Johnson, 483 So. 2d 420 (Fla.1986). In light of Novaton and Johnson, this court should have recognized in the first appeal that Pierce had not waived the double jeopardy issue. See Austin v. State, 699 So. 2d 314 (Fla. 1st DCA 1997).
Other portions of the Wright holding remain undisturbed. Wright involved the same statutes at issue here, and held that convictions under both
Any person who commits vehicular homicide and willfully fails to stop or comply with the requirements of s. 316.027(1) is guilty of a felony of the second degree.
The driver of any vehicle involved in an accident resulting in injury or death of any person shall immediately stop such vehicle at the scene of the accident, or as close thereto as possible, and shall forthwith return to, and in every event shall remain at the scene of, the accident until he has fulfilled the reporting requirements of s. 316.062.
Wright held that
Wright, however, involved two counts applied to one victim who died, while here one count applied to one of the victims, who died, and the other count applied to the other victims, who were injured. The state analogizes to the charge of DUI manslaughter, which may be charged separately
The different constructions of these two statutes, we conclude, are not contradictory; the link between the statutory violation and resultant injury is fundamentally different.
In the case of driving with a suspended license, the link between the violation and injury is indirect-the suspended license in no way causes the driver‘s carelessness or negligence. To allow multiple convictions for a single violation of this statute would be illogical because the violation does not cause injury to any of the victims. In the case of DUI, on the other hand, the link is direct-the driver‘s intoxication results in his or her inability to drive safely. The DUI driver may sustain multiple convictions because the violation causes injury to each victim.
Id. at 765 (emphasis in original).
Here, unlike DUI manslaughter and DUI resulting in injuries, leaving the scene of an accident is not a discrete crime against an individual in which causation of injury to the “victim” is related to the leaving the scene charge. This court, in Hardy v. State, 705 So. 2d 979 (Fla. 4th DCA 1998), held that dual convictions under the amended version of
Thus, we recognize that this court was in error in failing to reverse in the initial Pierce appeal, and we do so here, as a matter of fundamental fairness. We also reverse as to count III. As to this count, the state does not dispute that conviction is a double jeopardy violation. See Houser v. State, 474 So. 2d 1193, 1196 (Fla.1985). We remand for re-sentencing on counts I, IV, and V.
FARMER and TAYLOR, JJ., concur.