DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
LEX LUGARD EUGENE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
Nos. 4D19-992 and 4D19-1281
[February 10, 2021]
Consolidated appeals from the Circuit Court for the Fifteenth Judicial
Circuit, Palm Beach County; Glenn D. Kelley, Judge; L.T. Case No. 50-
2016-CF-001434-AXXX-MB.
Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Rachael Kaiman,
Assistant Attorney General, West Palm Beach, for appellee.
ON MOTION FOR REHEARING
CONNER, J.
We grant the state’s motion for rehearing, withdraw our opinion dated
April 15, 2020, and issue the following in its place.
Lex Lugard Eugene (“Appellant”) appeals his judgments and sentences
entered after a jury found him guilty of: vehicular homicide; fleeing or
attempting to elude an officer causing serious bodily injury or death;
operating a motor vehicle carelessly or negligently causing death or serious
injury without having a driver’s license; and resisting an officer without
violence. The state cross-appeals the trial court’s order dismissing the
count charging Appellant with fleeing or attempting to elude an officer
causing serious bodily injury or death, based on the single homicide rule.
Appellant argues that the trial court erred in prohibiting evidence of the
arresting police agency’s policy against high-speed vehicle pursuits and
evidence of an internal investigation of the officer involved in the high-
speed chase leading to Appellant’s arrest. We affirm the trial court’s
rulings on those evidentiary issues without discussion. Because our
supreme court has recently rendered its opinion answering a certified
question of great public importance concerning whether the single
homicide rule has continued viability in Florida, we reverse the trial court’s
dismissal of the count charging Appellant with fleeing or attempting to
elude an officer causing serious bodily injury or death.
Background
While waiting to turn onto the same road Appellant was traveling, a
uniformed police officer driving a marked police vehicle noticed that
Appellant was speeding. The officer ran the license plate and saw that the
tag was expired, but the officer was unable to effectuate a traffic stop at
the time. However, ten minutes later, he saw Appellant’s vehicle in a
convenience store parking lot. As the officer pulled into the parking lot,
Appellant’s vehicle “took off.” As the officer pursued him, Appellant
increased his speed well in excess of the posted speed limit on a busy
street.
When the officer activated his overhead lights, Appellant’s vehicle again
accelerated and then crossed over double lines into oncoming traffic to
pass another vehicle. At that point, the officer activated his sirens. After
Appellant’s vehicle successfully passed the other vehicle, Appellant
attempted to make an abrupt right-hand turn down a side street and lost
control of his vehicle. Appellant’s vehicle left the roadway, crossed a
curbed sidewalk, smashed through a chain-link fence, and came to a stop
in a dirt field. While driving out of control, off the roadway, and into the
field, Appellant ran over and killed a five-year-old child. Appellant then
exited the vehicle and attempted to climb over another chain-link fence,
but when he was unable to do so, he began running through the field. The
pursuing officer was unable to make the abrupt turn to chase Appellant’s
vehicle, but backup officers arrived and were able to apprehend Appellant.
A jury found Appellant guilty as charged. At sentencing, the trial court
dismissed the fleeing or attempting to elude an officer causing serious
bodily injury or death count, based on the single homicide rule.
Additionally, the state stipulated to dismissal of the count charging
Appellant with operating a motor vehicle carelessly or negligently causing
death or serious injury without having a driver’s license, also pursuant to
the single homicide rule. After Appellant was sentenced to prison, he gave
notice of appeal and the state cross-appealed.
2
Appellate Analysis
At sentencing, the trial court first addressed the issue raised by
Appellant, ruled as a “double jeopardy” issue, of whether dual convictions
for vehicular homicide and fleeing or attempting to elude an officer causing
serious bodily injury or death violated the single homicide rule. Appellant
relied on McCullough v. State, 230 So. 3d 586 (Fla. 2d DCA 2017), where
the Second District found that the defendant’s convictions for vehicular
homicide and fleeing or attempting to elude an officer causing serious
bodily injury or death violated the single homicide rule. Id. at 593. The
state relied on McKinney v. State, 51 So. 3d 645 (Fla. 1st DCA 2011), and
argued that fleeing or attempting to elude an officer causing serious bodily
injury or death is a non-homicide offense, and therefore, it could not be a
crime that violated the single homicide rule. The trial court commented
that guidance from this Court was needed, but relied on McCullough in
dismissing the count, since it was the more recent case. The trial court’s
verbal dismissal of the fleeing or attempting to elude count was followed
by a written order citing to McCullough. In deciding McCullough, the
Second District placed considerable reliance on our supreme court’s
opinions in Houser v. State, 474 So. 2d 1193 (Fla. 1985), 1 and State v.
Chapman, 625 So. 2d 838 (Fla. 1993). 2 230 So. 3d at 591.
“A double jeopardy claim based upon undisputed facts presents a pure
question of law, which we review de novo.” Id. at 590.
In State v. Maisonet-Maldonado, No. SC19-1947, 2020 WL 7250995
(Fla. Dec. 10, 2020), our supreme court answered the following question,
certified by the Fifth District as a matter of great public importance, in the
negative:
DOES THE “SINGLE HOMICIDE” RULE FOUND IN HOUSER
V. STATE, 474 SO. 2D 1193 (FLA. 1985), PRECLUDE
SEPARATE CONVICTIONS OF VEHICULAR HOMICIDE AND
FLEEING AND ELUDING CAUSING SERIOUS INJURY OR
DEATH THAT INVOLVE THE SAME VICTIM?
1In Houser, the supreme court formally adopted the single homicide rule. 474
So. 2d at 1197.
2 In Chapman, the supreme court determined that the 1988 amendment to
section 775.021, Florida Statutes, did not supersede Houser and that the single
homicide rule was still the law in Florida. 625 So. 2d at 839.
3
Id. at *1. The court examined the case law evolution of the single homicide
rule with particular focus on the impact of the 1988 legislative amendment
to section 775.021, Florida Statutes. Id. at *3-4. The court noted the 1988
amendment clarified “the principle of lenity should not be applied in a
double jeopardy analysis.” Id. at *3. After analyzing the wording of the
statute, our supreme court determined:
After the 1988 amendment, the plain language of section
775.021 clearly expresses that offenses which pass the
codified Blockburger test[ 3] should be punished separately and
that there is no exception for offenses arising from a single
death. Accordingly, we conclude that the 1988 amendment to
section 775.021 superseded our decision in Houser, and our
decision in Chapman holding otherwise was wrongly decided.
Id. at *4. Ultimately, the court held “that the single homicide rule is no
longer applicable under Florida law.” Id.
Because the trial court relied on judicial precedent regarding the single
homicide rule that our supreme court has now determined is no longer
applicable, we reverse the trial court’s dismissal of the fleeing and eluding
charge, which the jury determined the state proved beyond a reasonable
doubt. We remand the case for the trial court to proceed with sentencing
on that charge.
Affirmed in part, reversed in part and remanded for further proceedings.
FORST and KLINGENSMITH, JJ., concur. 4
* * *
Not final until disposition of timely filed motion for rehearing.
3In Blockburger v. United States, 284 U.S. 299 (1932), the United States Supreme
Court created the “same-elements” test for double jeopardy analysis, which was
subsequently codified in section 775.021(4), Florida Statutes. See Ready v. State,
183 So. 3d 1234, 1238 (Fla. 4th DCA 2016).
4Judge Klingensmith did not participate in oral argument before this court, but
has had the opportunity to review the case on remand.
4