McCullough v. State

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT

TIPPY MCCULLOUGH, )
)
Appellant, )
)
v. ) Case No. 2D16-31
)
STATE OF FLORIDA )
)
Appellee. )
)

Opinion filed November 8, 2017.

Appeal from the Circuit Court for Manatee
County; Deno G. Economou, Judge.

Howard L. Dimmig, II, Public Defender, and
Richard J. Sanders, Assistant Public
Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Cerese Crawford Taylor,
Assistant Attorney General, Tampa, for
Appellee.

BADALAMENTI, Judge.

Tippy McCullough stole a 2013 Cadillac XTS out of a car wash in Manatee

County. McCullough's theft precipitated a high-speed police chase, during which she

struck—and caused the death of—a bicyclist. She now appeals her judgment and

sentences after entering an open plea of no contest to leaving the scene of a crash with
death, fleeing or eluding a law enforcement officer causing serious bodily injury or

death, vehicular homicide, grand theft of a motor vehicle, resisting an officer without

violence, and driving with a suspended license. See §§ 316.027(2)(c), .1935(3)(b),

322.34, 782.071(1)(a), 812.014, 843.02, Fla. Stat. (2015). The trial court sentenced her

to imprisonment for an overall length of thirty years.1

McCullough challenges her sentences for leaving the scene of a crash

with death, fleeing or eluding a law enforcement officer causing serious bodily injury or

death, and vehicular homicide ("homicide offenses"). McCullough's overarching

argument on appeal is that the trial court violated her double jeopardy protections by

sentencing her for all three of the homicide offenses. She contends that she can be

punished for only one of the homicide offenses because they all related to a single

homicide—that of the bicyclist. McCullough's argument invokes what we will refer to as

the "single homicide rule"—a judicially created extension of the constitutional and

statutory double jeopardy bar. It provides that although a defendant can be charged

and convicted under multiple criminal statutes for conduct causing another's death

during one criminal episode, that criminal defendant can only be punished once for that

death. See State v. Cooper, 634 So. 2d 1074, 1074-75 (Fla. 1994); Houser v. State,

1
Although the parties do not dispute that McCullough was charged with
and pleaded no contest to leaving the scene of a crash with death pursuant to section
316.027(2)(c), we note that the information and judgment list section 316.027(1)(b) as
the appropriate statute. This mistake appears to be due to a recent statutory
reorganization. See ch. 2014-225, § 2, at 1-4, Laws of Fla. But this citation error is of
no consequence because McCullough pleaded no contest to all necessary elements of
this offense and was advised of the statutory maximum of thirty years' imprisonment
during the change-of-plea colloquy. See Mosely v. State, 688 So. 2d 999, 999-1000
(Fla. 2d DCA 1997) ("Because the information recited the appropriate factual description
. . . we treat the citation to the incorrect statute as a scrivener's error and remand this
case for correction of the judgment . . . .").

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474 So. 2d 1193, 1197 (Fla. 1985); Rodriguez v. State, 875 So. 2d 642, 645 (Fla. 2d

DCA 2004).

Bound by the supreme court's Cooper decision, we hold that the trial court

erred by sentencing McCullough for fleeing or eluding causing serious bodily injury or

death and vehicular homicide, in contravention of the single homicide rule. We thus

reverse and remand with instructions for the trial court to vacate the vehicular homicide

conviction and corresponding fifteen-year sentence. We affirm McCullough's remaining

convictions and sentences.

Double Jeopardy Framework in Florida

1. Constitutional and Statutory Framework

The Fifth Amendment to the U.S. Constitution and article I, section 9 of the

Florida Constitution both protect individuals from being twice put in jeopardy for the

same offense. A double jeopardy claim based upon undisputed facts presents a pure

question of law, which we review de novo. Roughton v. State, 185 So. 3d 1207, 1209

(Fla. 2016) (citing State v. Drawdy, 136 So. 3d 1209, 1213 (Fla. 2014)). "The Double

Jeopardy Clause presents no substantive limitation on the legislature's power to

prescribe multiple punishments, but rather, seeks only to prevent courts either from

allowing multiple prosecutions or from imposing multiple punishments for a single,

legislatively defined offense." Id. (quoting Borges v. State, 415 So. 2d 1265, 1267 (Fla.

1982)); accord Valdes v. State, 3 So. 3d 1067, 1076 (Fla. 2009) ("[T]here is no

constitutional prohibition against multiple punishments for different offenses arising out

of the same criminal episode, as long as the Legislature intends such punishments."

(citing Hayes v. State, 803 So. 2d 695, 699 (Fla. 2001))).

-3-
 The legislature has codified the double jeopardy bar within section

775.021(4)(a)-(b), Florida Statutes (2015). Section 775.021(4)(a)-(b) is, at its core, a

recitation of the well-known Blockburger test. See Blockburger v. United States, 284

U.S. 299, 304 (1932) ("[W]here the same act or transaction constitutes a violation of two

distinct statutory provisions, the test to be applied . . . is whether each provision requires

proof of a fact which the other does not."). The Blockburger test is a rule of statutory

construction which "serves as a means of discerning [legislative] purpose" only where

there is no "clear indication of contrary legislative intent." Albernaz v. United States,

450 U.S. 333, 340 (1981).

The plain and ordinary language of section 775.021(4) unambiguously

states that it is the legislature's intent "to convict and sentence for each criminal offense

committed in the course of one criminal episode or transaction and not to allow the

principle of lenity . . . to determine legislative intent." An individual who "commits an act

or acts which constitute one or more separate criminal offenses, upon conviction and

adjudication of guilt, shall be sentenced separately for each criminal offense; and the

sentencing judge may order the sentences to be served concurrently or consecutively."

§ 775.021(4)(a) (emphasis added). "[O]ffenses are separate if each offense requires

proof of an element that the other does not, without regard to the accusatory pleading or

the proof adduced at trial." Id.; see also Blockburger, 284 U.S. at 304.

The legislature has prescribed three, and only three, exceptions to the

statute's aforementioned intent to punish for each criminal offense in the course of one

criminal episode. The legislature does not intend to allow separate sentencing for

related offenses (1) that "require identical elements of proof," (2) that "are degrees of

-4-
the same offense as provided by statute," or (3) that "are lesser offenses the statutory

elements of which are subsumed by the greater offense." § 775.021(4)(b)(1)-(3).

Accordingly, "[a]bsent a clear statement of legislative intent to authorize

separate punishments for two crimes, courts employ the Blockburger test," as set forth

in section 775.021(4). Rodriguez, 875 So. 2d at 644 (quoting Gordon v. State, 780 So.

2d 17, 19-20 (Fla. 2001)).

2. Florida's Single Homicide Rule

The single homicide rule was birthed from cases where a single

manslaughter caused by an offender's operation of a motor vehicle was punished by

two manslaughter statutes, one of which simply cross-referenced the other. See

Phillips v. State, 289 So. 2d 769, 770-71 (Fla. 2d DCA 1974) (reversing manslaughter

by culpable negligence conviction because defendant was also convicted and

sentenced for operating a motor vehicle while intoxicated, stating "[i]n any case, only

one judgment and sentence is appropriate"); Carr v. State, 338 So. 2d 267, 267 (Fla. 1st

DCA 1976) ("[A]ppellant could be adjudged guilty of only the one manslaughter which

the jury found he committed by both of the two means specified."); Stewart v. State, 184

So. 2d 489, 491 (Fla. 4th DCA 1966) ("[T]he jury found the defendant guilty in one count

charging manslaughter by culpable negligence and in the other count charging

manslaughter by the operation of a motor vehicle while intoxicated. The same person

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was killed as a result of each criminal act. The information charged only one

offense.").2

The supreme court formally adopted the single homicide rule in its 1985

Houser decision. 474 So. 2d at 1197. There, the defendant was convicted and

sentenced for both DWI manslaughter and vehicular homicide. Id. at 1194. Applying

the Blockburger test, the First District held that because DWI manslaughter and

vehicular homicide "each requir[e] proof of an element which the other does not,"

punishing Houser for both crimes was permissible. Id. at 1196. The supreme court

disagreed with the First District's analysis and reversed. The supreme court reasoned

that although it is true the pairing of DWI manslaughter and vehicular homicide satisfy

the Blockburger test, "Florida courts have repeatedly recognized that the legislature did

not intend to punish a single homicide under two different statutes." Id. at 1197. It thus

held that double jeopardy principles bar punishing Houser for both DWI manslaughter

and vehicular manslaughter for causing a single death. Id. at 1196-97. In so holding,

the supreme court clarified that the single homicide rule applies regardless of whether

two offenses satisfy the Blockburger test. Id. at 1197; McKay v. State, 925 So. 2d 1133,

1134 (Fla. 2d DCA 2006) (remanding to postconviction court because the single

homicide rule was violated, even though "vehicular homicide and third-degree murder

require different elements of proof").

2
When Phillips was decided, the statute which criminalized "operating a
motor vehicle while intoxicated" stated that a death resulting from such operation was
"manslaughter" and was to be punished "by existing law relating to manslaughter."
White v. State, 666 So. 2d 895, 896 n.1 (Fla. 1996) (quoting § 860.01(2), Fla. Stat.
(1975)).
-6-
 Since Florida's statutory codification of the Blockburger test, courts have

repeatedly reaffirmed the continuing viability of the single homicide rule. See State v.

Chapman, 625 So. 2d 838, 839-40 (Fla. 1993) (explaining that the legislature's

codification of the Blockburger test did not affect its jurisprudence on the single

homicide rule, holding that sentences for both DUI manslaughter and vehicular

homicide violated the single homicide rule, and determining that section 775.021(4) did

not abrogate Houser); Rodriguez, 875 So. 2d at 645 (explaining that the single homicide

"rule retains viability today"); Ivey v. State, 47 So. 3d 908, 911 (Fla. 3d DCA 2010)

("Although the defendant's criminal charges stem from two separate statutes, as stated

in Houser and its progeny, we are convinced the Legislature did not intend to punish the

single death here by two separate homicide convictions.").

Thus, even if our analysis of the statutory elements of two homicide

offenses satisfies the statutory double jeopardy bar prescribed by the legislature in

section 775.021, we are bound to apply the single homicide rule, which affords a

second tier of double jeopardy protection. See Chapman, 625 So. 2d at 839-40;

Rodriguez, 875 So. 2d at 644-45 (citing Lawrence v. State, 801 So. 2d 293, 294-95 (Fla.

2d DCA 2001) (en banc)).

Double Jeopardy Analysis

Against this backdrop, we apply the statutory Blockburger test set forth by

our legislature in section 775.021, and the single homicide rule, to the pairings of

offenses which McCullough challenges.

1. Vehicular Homicide and Leaving the Scene of a Crash with Death

-7-
 It is clear that vehicular homicide and leaving the scene of a crash with

death do not share the same elements. Vehicular homicide requires reckless operation

of a vehicle, but leaving the scene of a crash with death does not require that the

vehicle be operated in any particular manner. Compare § 782.071(1)(a) (vehicular

homicide), with § 316.027(2)(c) (leaving the scene of a crash with death). Moreover,

leaving the scene of a crash with death also requires that a defendant willfully leave the

scene of a crash, whereas vehicular homicide has no such element. Compare

§ 782.071(1)(a), with § 316.027(2)(c). Accordingly, these two offenses satisfy the

statutory Blockburger test set forth in section 775.021(4). Lastly, the two offenses are

not degrees of the same offense, nor is one a lesser offense subsumed by the greater

offense. § 775.021(4)(b)(2)-(3). Accordingly, McCullough's convictions for vehicular

homicide and leaving the scene of a crash with death satisfy the double jeopardy

statute.3

These two convictions also do not violate the single homicide rule. To

establish the crime of leaving the scene of a crash with death, the State need only prove

that the defendant left the scene of a crash which resulted in death—not that the

defendant caused the death. § 316.027(2)(c) (requiring only that the crash "results in

3
In this case, vehicular homicide was not reclassified into a first-degree
felony for failure to remain at the scene and comply with Florida's statutory information-
giving and aid-giving duties. See § 782.071(1)(b). If it had been so reclassified, these
two convictions would have created double jeopardy. See Haag v. State, 67 So. 3d
351, 352 (Fla. 2d DCA 2011); Hunt v. State, 769 So. 2d 1109, 1110 (Fla. 2d DCA 2000);
Colon v. State, 53 So. 3d 376, 378-79 (Fla. 5th DCA 2011); Ivey v. State, 47 So. 3d
908, 911 (Fla. 3d DCA 2010); cf. Kelly v. State, 987 So. 2d 1237, 1239 (Fla. 2d DCA
2008) (holding that reclassification to driving without a valid license with serious bodily
injury created double jeopardy violation, where defendant was also sentenced for DUI
with serious bodily injury).
-8-
the death of a person"). Our court has held that the single homicide rule only applies

where both homicide offenses require the defendant to cause the death in question.

See Lawrence, 801 So. 2d at 295 (affirming convictions for DUI manslaughter and

leaving the scene of a crash with death under the single homicide rule and reasoning

that "although the offense of leaving the scene of an accident involving death requires a

showing that the defendant was involved in an accident resulting in death, it does not

require a showing that the defendant actually caused the death"). Here, because

vehicular homicide requires McCullough to actually cause a death and leaving the

scene of an accident with death does not, this pairing of offenses does not violate the

single homicide rule.

2. Leaving the Scene of a Crash with Death and Fleeing or Eluding Causing Serious
Bodily Injury or Death

Fleeing or eluding causing serious bodily injury or death requires the willful

attempt to flee or elude a law enforcement officer in an authorized patrol vehicle.

§ 316.1935(3). Leaving the scene of a crash with death does not contain such an

element and instead requires willfully leaving the scene of a crash with death.

§ 316.027(2)(c). It is clear that these two offenses each require proof of an element that

the other does not. Furthermore, this pairing of offenses does not fall under either of

the enumerated exceptions in sections 775.021(4)(b)(2) or (b)(3) because the two

offenses are not degrees of the same offense, nor is one a lesser offense subsumed by

the greater offense. As such, McCullough's convictions for leaving the scene of a crash

with death and fleeing or eluding causing serious bodily injury or death satisfy the

statutory Blockburger test. § 775.021(4).

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 Like the previous pairing, this pairing does not run afoul of the single

homicide rule. To establish the crime of fleeing or eluding causing serious bodily injury

or death, the State must prove that the defendant actually caused serious bodily injury

or death. § 316.1935(3)(b). As we already explained, to establish the crime of leaving

the scene with death, the State need only prove that the defendant left the scene of a

crash which resulted in death, without having to prove that an offender caused the

death. § 316.027(2)(c). Our decision in Lawrence again guides our conclusion.

801 So. 2d at 295. We thus hold that sentencing McCullough for the crimes of leaving

the scene with death and fleeing or eluding causing serious bodily injury or death

satisfies the statutory Blockburger test and is not in contravention of the single homicide

rule.4

3. Vehicular Homicide and Fleeing or Eluding Causing Serious Bodily Injury or Death

We now arrive at the final pairing of offenses—second-degree vehicular

homicide and fleeing or eluding causing serious bodily injury or death. We hold that

McCullough's sentences for both second-degree vehicular homicide and fleeing or

eluding violate the single homicide rule.5

Fleeing or eluding causing serious bodily injury or death requires that the

defendant willfully flee or attempt to elude a law enforcement officer in an authorized

4
The legislature has clearly expressed its intent to allow for the crime of
fleeing or eluding causing serious bodily injury or death to be charged together with
leaving the scene of a crash with death, so long as the defendant was in the course of
leaving the scene when they began to flee. § 316.1935(4)(b). McCullough was not,
however, charged under section 316.1935(4)(b).
5
Unlike the prior two offense pairings, we need not conduct a section
775.021(4) double jeopardy analysis for this pairing because reversal is mandated
under the single homicide rule.
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law enforcement patrol vehicle, with agency insignia and other jurisdictional markings

prominently displayed on the vehicle, with siren and lights activated, and during the

course of the fleeing or attempted eluding, the defendant (1) drives at a high speed or in

any manner demonstrating a wanton disregard for the safety of persons or property,

and (2) causes serious bodily injury or death to another person. § 316.1935(3)(b).

Vehicular homicide requires that the defendant (1) kill a human being, (2) by the

operation of a motor vehicle, (3) in a reckless manner likely to cause death or great

bodily harm to another. § 782.071(1)(a).

In Cooper the supreme court approved of the Fifth District's holding that

convictions for DUI manslaughter and driving while license suspended (DWLS) causing

death or serious bodily injury violated the single homicide rule. 634 So. 2d at 1074-75.

The DWLS statute at issue in Cooper contained language which is congruent to the

fleeing or eluding statute here—the defendant must have caused "death of or serious

bodily injury to another." See Cooper v. State, 621 So. 2d 729, 732 (Fla. 5th DCA 1993)

(quoting § 322.34(3), Fla. Stat. (1991)), approved, 634 So. 2d 1074 (Fla. 1994). The

supreme court in Cooper paid no mind that DWLS causing death or serious bodily injury

does not necessarily require that the offender cause the death of another. That is, the

same crime can be committed if the offender causes serious bodily injury, not death.

The Cooper court invoked the single homicide rule to reverse the sentence relating to

DWLS causing death or serious bodily injury, even though DWLS causing death or

serious bodily injury does not require death. We can discern no meaningful difference

between DWLS causing death or serious bodily injury at issue in Cooper and the fleeing

and eluding "caus[ing] serious bodily injury or death to another." § 316.1935(3)(b)

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(emphasis added). According to the rationale in Cooper, that section 316.1935(3)(b)

does not necessarily require that an individual cause the death of another to satisfy a

prima facie case does not preclude it from being characterized as a "homicide" for the

purpose of the single homicide rule. Indeed, the Cooper defendant caused the death of

an individual and was convicted under a statute where death was not required to

sustain a conviction—DWLS causing death or serious bodily injury.

Here, like the Cooper defendant, McCullough committed one homicide

and was sentenced for two homicide offenses—vehicular homicide and fleeing or

eluding causing serious bodily injury or death. Because McCullough was punished

twice for causing the same death, we are compelled by supreme court precedent to

hold that this pairing of convictions places McCullough in double jeopardy. See Cooper,

634 So. 2d at 1075; Houser, 474 So. 2d at 1197; Linton v. State, 212 So. 3d 1100, 1102

(Fla. 5th DCA 2017); cf. Rodriguez, 875 So. 2d at 645.

We are mindful that McCullough could have committed fleeing or eluding

causing serious bodily injury or death even if the bicyclist did not die but rather suffered

a serious bodily injury. But that mechanical, same-elements analysis is not appropriate

to determine a violation of the protections of the single homicide rule. Just as in

Cooper, McCullough was charged and sentenced pursuant to two statutes, one of which

required causation of a death as a necessary element in all circumstances (vehicular

homicide) and a second which could have been charged without any death (fleeing or

eluding causing serious bodily injury or death). See §§ 316.1935(3)(b), 782.071(1)(a).

We find no meaningful way to distinguish Cooper from the present case and thus are

- 12 -
bound by its rationale.6 See Linton, 212 So. 3d at 1103; cf. Crusaw v. State, 195 So. 3d

422, 422 (Fla. 1st DCA 2016) (concluding that Cooper is controlling and holding that

trial court erred by sentencing a defendant for both vehicular homicide and careless

driving with suspended license causing death or serious bodily injury). But see

McKinney v. State, 51 So. 3d 645, 648 (Fla. 1st DCA 2011) (affirming the trial court's

punishment of a defendant for both fleeing or eluding causing serious bodily injury or

death and third-degree murder under both section 775.021(4) and the single homicide

rule, even if it was based on a single homicide).

We discern that the First District has been hesitant to apply the single

homicide rule to fleeing or eluding causing serious bodily injury or death. In McKinney,

the trial court sentenced McKinney for both third-degree murder and fleeing or eluding

causing serious bodily injury or death. Id. at 646-47. On appeal, the First District

reasoned that because fleeing or eluding causing serious bodily injury or death does not

necessarily require a homicide, it is not a "homicide offense." Id. at 648. Thus, the

McKinney court, conducting a Blockburger-type same-elements analysis, held that the

single homicide rule is inapplicable where death is not the only means by which an

offender may violate a statute, even if a single death resulted. Id. at 648-49. In so

doing, the McKinney court did not consider Cooper and instead relied upon Houser and

other appellate decisions reversing under the single homicide rule, where the pertinent

6
It is unclear whether Cooper will remain good law based on our supreme
court's rationale in Valdes v. State, 3 So. 3d 1067, 1077 (Fla. 2009), where the supreme
court dispensed with the judicially created "primary" or "same evil test," which is akin to
the judicially created single homicide rule. That said, we are compelled to follow
Cooper because the supreme court does not intentionally overrule its prior precedent
sub silentio. See Puryear v. State, 810 So. 2d 901, 905 (Fla. 2002).
- 13 -
statutes could only have been violated if the offender caused death. Id. at 647-48

(citing, inter alia, Houser, 474 So. 2d at 1196-97; McKay, 925 So. 2d at 1134;

Rodriguez, 875 So. 2d at 642).

Furthermore, the McKinney court did not adhere to the plain and ordinary

language of section 775.021(4)(a), which only bars consideration of an "accusatory

pleading" or "the proof adduced at trial" when a court is looking at two offenses and

trying to decide "if each offense requires proof of an element that the other does not."

(Emphasis added.) No part of section 775.021 instructs courts to utilize the single

homicide rule as though it were the statutory Blockburger test. On the contrary,

Chapman made clear that the statutory codification of the Blockburger test did not affect

our supreme court's jurisprudence on the single homicide rule. 625 So. 2d at 839-40.

In other words, the McKinney court erred because it tried to import the alternative

conduct analysis of section 775.021(4)(a) into its independent analysis of the single

homicide rule. But to hold that the alternative conduct analysis of the statutory

Blockburger test also applies to the single homicide rule is the same as holding that

there is no single homicide rule at all. Confusion as to the applicability of the same

elements test set forth in section 775.021(4) to the single homicide rule is evident in the

case law. Compare McKinney, 51 So. 3d at 647-48, with Crusaw, 195 So. 3d at 422.

Accordingly, we certify conflict with McKinney because we do not believe

that principles from the statutory Blockburger test impact our supreme court's

jurisprudence on the single homicide rule. We agree with the Linton decision, where the

Fifth District applied Cooper to hold that convictions for fleeing or eluding causing

serious bodily injury or death and DWLS causing death or serious bodily injury violate

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the single homicide rule. See Linton, 212 So. 3d at 1102. Bound by Cooper, we hold

that the sentencing court erred by punishing McCullough for both vehicular homicide

and fleeing or eluding causing serious bodily injury or death.

Conclusion

The trial court erred by punishing McCullough for both her convictions for

vehicular homicide and fleeing or eluding causing serious bodily injury or death because

it violated the single homicide rule. Because fleeing or eluding causing serious bodily

injury or death is a first-degree felony, we reverse and remand with instructions for the

trial court to vacate the lesser, second-degree felony of vehicular homicide. See

Cooper, 621 So. 2d at 732. We affirm, however, McCullough's conviction as to leaving

the scene of a crash with death, as its pairing with either of the two aforementioned

offenses does not constitute double jeopardy. Because we have affirmed her thirty-year

sentence for leaving the scene of a crash with death, McCullough's sentence of

imprisonment for an overall length of thirty years will remain unchanged. We affirm

McCullough's remaining convictions and sentences.

We also instruct the trial court to correct a scrivener's error in the judgment

to clarify that McCullough's conviction for leaving the scene of a crash with death was

pursuant to section 316.027(2)(c), not section 316.027(1)(b). See Mosely v. State, 688

So. 2d 999, 999-1000 (Fla. 2d DCA 1997).

Affirmed in part; reversed in part and remanded with instructions; conflict

certified.

SILBERMAN, J., Concurs with opinion.
SLEET, J., Concurs with opinion.

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SILBERMAN, Judge, Concurring.

I fully agree with Judge Badalamenti's thorough analysis and resolution of

each of the double jeopardy pairings. I write to note two points. First, as to footnote six

of the majority opinion, I do not read Valdes v. State, 3 So. 3d 1067 (Fla. 2009), as

casting doubt on the continued viability of the single homicide rule. Second, although

McCullough's appellate argument for reversal focused primarily on the single homicide

rule, the State argued for affirmance based on Blockburger v. United States, 284 U.S.

299 (1932). In light of our conclusion that McCullough is entitled to relief under the

single homicide rule, we need not address the State's Blockburger argument. However,

if we were to reach that issue I would agree with Judge Sleet that as to the pairing of

vehicular homicide and fleeing or eluding causing serious bodily injury or death, a

Blockburger analysis would not support affirmance.

SLEET, Judge, Concurring.

I concur with Judge Badalamenti's conclusion that McCullough's

convictions for first-degree fleeing or eluding a law enforcement officer causing serious

bodily injury or death and second-degree vehicular homicide violate double jeopardy

and that we must reverse her conviction and sentence for vehicular homicide and affirm

her remaining convictions. However, unlike Judge Badalamenti, I conclude that

McCullough's convictions and sentences for both of these offenses in this case not only

violate the single homicide rule but also violate the Blockburger test as codified in

section 775.021(4), Florida Statutes (2015). I write to discuss the proper application of

the Blockburger test as set forth in section 775.021(4).

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 Under Blockburger, "[a] defendant is placed in double jeopardy where

based upon the same conduct the defendant is convicted of two offenses, each of which

does not require proof of a different element." Pizzo v. State, 945 So. 2d 1203, 1206

(Fla. 2006). Section 775.021(4)(a) sets forth the legislature's intent that a defendant

who

in the course of one criminal transaction or episode, commits
an act or acts which constitute one or more separate criminal
offenses, upon conviction and adjudication of guilt, shall be
sentenced separately for each criminal offense . . . .
[O]ffenses are separate if each offense requires proof of an
element that the other does not, without regard to the
accusatory pleading or the proof adduced at trial.

§ 775.021(4)(a); see also Blockburger, 284 U.S. at 304.

In reviewing a double jeopardy claim, "we first consider whether the

convictions arose from the same criminal transaction or episode." Fleming v. State, No.

2D16-469 (Fla. 2d DCA Sept. 27, 2017) (citing § 775.021(4); Lee v. State, 223 So. 3d

342, 348 (Fla. 1st DCA 2017)). If we conclude that they do, "we must then determine if

the convictions were predicated on distinct acts." Id. (quoting Lee, 223 So. 3d at 348).

"In determining whether convictions arose from the same criminal episode or were

based on distinct acts, 'the reviewing court examines the entire record, including all

evidence admitted at trial.' " Id. (quoting Lee, 223 So. 3d at 349). "Only after

determining that the convictions arose from the same criminal episode and were not

based on distinct acts do we then consider whether each offense requires an element

that the other does not." Id. (citing Batchelor v. State, 193 So. 3d 1054, 1058 (Fla. 2d

DCA 2016)).

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 Here, there is no dispute that the charged offenses of first-degree fleeing

or eluding a law enforcement officer causing serious bodily injury or death and second-

degree vehicular homicide arose out of the same criminal episode and are both based

on the death of the same victim. Therefore, the issue becomes whether each offense

requires an element of proof that the other does not. I conclude that they do not and

that therefore McCullough's convictions for both offenses in this case constitute a

double jeopardy violation under section 775.021(4).

The offense of vehicular homicide is subsumed within the offense of

fleeing or eluding a law enforcement officer causing serious bodily injury or death in this

case. The elements of vehicular homicide require a showing that the defendant (1)

killed a human being (2) by the operation of a motor vehicle (3) in a reckless manner

likely to cause death or great bodily harm to another. § 782.071(1)(a), Fla. Stat. (2015).

Fleeing or eluding a law enforcement officer causing serious bodily injury or death

requires a showing that the defendant (1) willfully fled or attempted to elude a law

enforcement officer in an authorized law enforcement patrol vehicle with siren and lights

activated, (2) drove at a high speed or in any manner demonstrating a wanton disregard

for the safety of persons or property, and (3) caused serious bodily injury or death to

another person. § 316.1935(3)(b), Fla. Stat. (2015). While section 316.1935(3)(b)

contains the additional elements of fleeing or attempting to elude a law enforcement

officer, speeding, and causing serious bodily injury, each element of section

782.071(1)(a) is also an element of section 316.1935(3)(b).7 As such, vehicular

7
This court has explained that section 316.1935(3)(b)'s "wanton disregard"
language is synonymous with section 782.071(1)'s "reckless operation" language. See
State v. Del Rio, 854 So. 2d 692, 693 (Fla. 2d DCA 2003).
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homicide does not "require[] proof of an element that [fleeing or eluding a law

enforcement officer causing serious bodily injury or death] does not." See § 775.021(4).

The offenses therefore cannot be considered separate offenses pursuant to the statute.

Because these two offenses do not pass the Blockburger test as codified

in section 775.021(4), it is unnecessary to conduct a single homicide analysis in this

case. Nevertheless, I concur with the result of Judge Badalamenti's single homicide

analysis and agree that McCullough's sentences for both convictions also constitute a

double jeopardy violation pursuant to the single homicide rule because they are for

homicide offenses that are based on the death of a single victim. See State v. Cooper,

634 So. 2d 1074, 1074 (Fla. 1994) ("[T]here can be but one penalty imposed for causing

the death of a single victim."); Houser v. State, 474 So. 2d 1193, 1196-97 (Fla. 1985)

("[O]nly one homicide conviction and sentence may be imposed for a single death. . . .

Florida courts have repeatedly recognized that the legislature did not intend to punish a

single homicide under two different statutes."); Linton v. State, 212 So. 3d 1100 (Fla. 5th

DCA 2017) (holding that convictions for fleeing or eluding a law enforcement officer

causing serious bodily injury or death and driving without a valid license causing serious

bodily injury or death violate the single homicide rule where they were based on the

same homicide); Ivey v. State, 47 So. 3d 908, 911 (Fla. 3d DCA 2010) (reaffirming "the

well-settled principle that a single death cannot give rise to dual homicide convictions").

See generally State v. Chapman, 625 So. 2d 838, 839 (Fla. 1993) (holding that the

enactment of section 775.021(4) did not overrule the Florida Supreme Court's holding in

Houser "that a single death cannot support convictions of both DUI manslaughter and

vehicular homicide").

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 Furthermore, I concur in certifying conflict with the First District's opinion in

McKinney v. State, 51 So. 3d 645, 648 (Fla. 1st DCA 2011), in which that court held that

fleeing or eluding a law enforcement officer causing serious bodily injury or death is not

a homicide offense and that thus, the defendant's convictions for fleeing and eluding

and DUI manslaughter based on the death of a single victim did not violate the single

homicide rule. That a violation of section 316.1935(3)(b) may be committed by causing

serious bodily injury and not death does not alter the application of the single homicide

rule; an appellate court is not precluded from considering the pleadings or evidence

adduced at trial in determining whether a defendant has been convicted of two homicide

offenses based on a single death. See, e.g., Crusaw v. State, 195 So. 3d 422, 422 (Fla.

1st DCA 2016) (holding that convictions for vehicular homicide and careless driving with

a suspended license causing death or great bodily injury violated the single homicide

rule when "[t]he information listed the same victim for both crimes"); Linton, 212 So. 3d

at 1102-03. In McKinney, the First District conflates the same elements test under

section 775.021(4) and the single homicide rule, incorrectly stating that "[t]he fact that

[the defendant's] conviction for fleeing or eluding was based upon a death, rather than

serious bodily injury, is irrelevant to the double jeopardy analysis." 51 So. 3d at 648.

As the First District explained in Lee, it is only when applying the same elements test—

the third step of the double jeopardy analysis under section 775.021(4)(a)—that "the

accusatory pleading or the proof adduced at trial" may not be considered. 223 So. 3d at

350. Because section 316.1935(3)(b) includes the element of causing a death, it is a

homicide offense. See Lawrence v. State, 801 So. 2d 293, 294-95 (Fla. 2d DCA 2001).

And when a conviction for fleeing or eluding causing serious injury or death is based on

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causing the death of a single victim, it is subject to the single homicide rule. See, e.g.,

Cooper, 634 So. 2d at 1074; Crusaw, 195 So. 3d at 422-23.

Finally, I disagree with Judge Badalamenti that the Florida Supreme

Court's opinion in Valdes v. State, 3 So. 3d 1067 (Fla. 2009), called into question

whether the single homicide rule will remain good law. "Valdes involved convictions for

both shooting from a vehicle and shooting into an occupied vehicle arising from a

singular shooting incident that did not result in death. Thus, the Valdes court did not

determine the double jeopardy consequences of dual homicide convictions arising from

a single death." Ivey, 47 So. 3d at 910.

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