DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
PRINCIPE HORMAECHE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D21-2071
[July 6, 2022]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Andrew L. Siegel, Judge; L.T. Case No. 16-
012875CF10A.
Jason T. Forman of Law Offices of Jason T. Forman, P.A., Fort
Lauderdale, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Luke R. Napodano,
Assistant Attorney General, West Palm Beach, for appellee.
ARTAU, J.
This case requires us to consider the oft-repeated maxim that
“excessive speed alone will not support a conviction for vehicular
homicide.” 1 More accurately, the question presented by this appeal is
whether the defendant’s excessive speed alone was enough to foreclose his
ability to mount a defense to vehicular homicide charges on grounds that
his conduct was merely careless as opposed to reckless.
The defendant in this case entered an open no contest plea to two
counts of vehicular homicide after he unfortunately caused the deaths of
two individuals during a car accident. Prior to sentencing, the defendant
moved to withdraw his plea, pursuant to Florida Rule of Criminal
Procedure 3.170(f), on grounds that defense counsel erroneously advised
1Luzardo v. State, 147 So. 3d 1083, 1085 (Fla. 3d DCA 2014); see also, e.g.,
House v. State, 831 So. 2d 1230, 1233 (Fla. 2d DCA 2002) (“Speed alone will not
support a charge of vehicular homicide.”).
him that his speeding at the time of the collision precluded him from
having a viable defense to the charges. The trial court denied the motion
after hearing from both the defendant and his counsel. On appeal, the
defendant argues that the trial court erred in denying his pre-sentence
motion to withdraw his plea. We agree and reverse.
An attorney’s failure to advise his or her client of a viable defense
constitutes “good cause” to allow the client to withdraw his or her plea
prior to sentencing. See Fla. R. Crim. P. 3.170(f) (“The court may in its
discretion, and shall on good cause, at any time before a sentence, permit
a plea of guilty or no contest to be withdrawn[.]” (emphasis added));
Johnson v. State, 971 So. 2d 212, 215 (Fla. 4th DCA 2008) (“[A] defendant’s
entry of a plea based upon his attorney’s mistaken advice can be a valid
basis for finding good cause [to withdraw a plea].”); Collins v. State, 858
So. 2d 1197, 1198 (Fla. 4th DCA 2003) (“Clearly, a defendant’s entry of a
plea based upon his attorney’s mistaken advice can be a basis for a motion
to withdraw plea.” (citing Snodgrass v. State, 837 So. 2d 507, 508 (Fla. 4th
DCA 2003)).
At the hearing on his rule 3.170(f) motion, the defendant testified that
he based his decision to plead no contest on his attorney’s advice that a
defense to the vehicular homicide charges would not be possible because
he was speeding at the time of the collision. The defendant further testified
that he learned through consultation with a second attorney prior to
sentencing that defense counsel’s advice was flawed because his speed at
the time of the collision did not necessarily preclude him from presenting
a defense that could result in the charges being “dropped to careless
driving.” Moreover, defense counsel candidly admitted that her advice to
defendant was flawed as it was based on the mistaken belief that the level
of intent necessary to support a conviction for vehicular homicide had been
met solely because the defendant was speeding.
Whether a defendant’s particular claim of mistaken advice by counsel
is proven depends upon “the context of the record.” Collins, 858 So. 2d at
1198; see also Wagner v. State, 895 So. 2d 453, 456 (Fla. 5th DCA 2005)
(“Good cause must be established within the context of the record.”).
Thus, the dispositive question in this appeal is whether or not counsel’s
advice to the defendant was legally sound under the factual circumstances
of this case.
A conviction for vehicular homicide requires proof that a defendant
caused the death of another human being through the operation of a motor
vehicle “in a reckless manner likely to cause the death of, or great bodily
harm to, another.” Rubinger v. State, 98 So. 3d 659, 662 (Fla. 4th DCA
2
2012) (quoting § 782.071, Fla. Stat. (2006)). “The defendant does not have
to have intended to harm anyone; rather, he [or she] must have engaged
in intentional conduct demonstrating a conscious disregard of a likelihood
of death or injury.” State v. Desange, 294 So. 3d 433, 437 (Fla. 2d DCA
2020) (citing Fla. Std. Jury Instr. (Crim.) 7.9).
“Neither carelessness nor ordinary negligence in the operation of a
motor vehicle are sufficient to sustain a conviction for vehicular homicide.”
Luzardo v. State, 147 So. 3d 1083, 1086 (Fla. 3d DCA 2014); see also Pitts
v. State, 473 So. 2d 1370, 1373 (Fla. 1st DCA 1985) (“[C]areless driving is
not a lesser-included offense of vehicular homicide.”); C.D. v. State, 356
So. 2d 1249, 1249 (Fla. 3d DCA 1978) (“Careless driving is not a lesser
included offense of reckless driving[.]” (footnote omitted)). 2
“Determining whether a defendant’s driving was reckless as
distinguished from merely negligent is a ‘fact intensive, ad hoc inquiry’
such that each case involving charges like these turns on its own specific
facts.” Desange, 294 So. 3d at 438 (quoting Luzardo, 147 So. 3d at 1086).
Nothing in section 782.071, Florida Statutes (2015), supports the
proposition that a finding of recklessness can be based solely on the
numeric value of a driver’s excessive speed—which would by itself only
constitute a non-criminal traffic offense—in the absence of other
determinant factors. See Damoah v. State, 189 So. 3d 316, 320 (Fla. 4th
DCA 2016) (“In affirming convictions for vehicular homicide or
manslaughter by culpable negligence, it is excessive speed, in combination
with other factors, that support the convictions.”); see also Luzardo, 147
So. 3d at 1084–89 (reversing conditional plea of guilty to vehicular
homicide where the defendant was traveling at 83.9 miles per hour—well
in excess of the posted speed limit of 55 miles per hour—on “a straight
road in sunny weather with clear visibility” when he collided with victim’s
car because his conduct was deemed insufficient to establish the level of
recklessness necessary to convict him of vehicular homicide, despite being
“careless, even negligent”).
Here, the defendant was driving eastbound on a heavily traveled
thoroughfare when his Toyota Camry collided head-on with the driver’s
2 Cases involving the offense of reckless driving are relevant to our analysis
because vehicular homicide requires proof of reckless driving. See Santisteban
v. State, 72 So. 3d 187, 195 (Fla. 4th DCA 2011) (“Vehicular homicide cannot be
proven without also proving the elements of reckless driving, which requires proof
of a ‘willful or wanton disregard for the safety of persons[.]’” (citing § 316.192(1),
Fla. Stat. (2004)).
3
side of a Nissan Sentra in the middle of an intersection controlled by a
traffic signal on a clear and dry summer afternoon. He was not swerving
outside of his lane, nor was he weaving in and out of traffic or otherwise
endangering pedestrians or bicyclists. However, the State contends that
the traffic light facing the defendant’s oncoming vehicle was red for seven
seconds prior to the collision and he was traveling approximately 22 miles
per hour above the posted speed limit while being carelessly distracted by
his cellular phone because it reflected data usage around the time of the
accident.
Information obtained from the Toyota’s event data recorder, as well as
the red-light camera at the intersection where the accident occurred,
indicates that the defendant failed to apply his brakes until he entered the
intersection just prior to impact.
The State’s probable cause affidavit asserts that the Nissan would have
cleared the intersection and the crash would not have occurred had the
defendant been “traveling at or near the [posted] speed limit or had reacted
as a typical and prudent driver of a vehicle and stopped for the traffic
signal.” However, causation is not the issue upon which the defendant
was given erroneous advice by his attorney in this criminal prosecution.
Instead, as defense counsel candidly admitted at the hearing on the
defendant’s rule 3.170(f) motion, her advice to the defendant regarding his
inability to mount a defense to the charges against him was flawed.
We therefore agree with the defendant that the advice he received from
counsel, and upon which he based his plea, was not legally sound. That
is, his excessive speed at the time of the collision was not, alone, sufficient
to foreclose his ability to mount a defense to the vehicular homicide
charges on grounds that his conduct was merely careless as opposed to
reckless. See, e.g., Desange, 294 So. 2d at 438 (“conduct constituting
everyday negligence” is insufficient to sustain a conviction for vehicular
homicide); Damoah, 189 So. 3d at 319 (“The law differentiates between
negligent driving conduct, which exposes a wrongdoer to civil liability, and
criminal driving conduct, which subjects a person to incarceration and
other criminal sanctions.”); see also, e.g., Harris v. State, 318 So. 3d 645,
647–48 (Fla. 2d DCA 2021) (determining evidence insufficient to support
revocation of probation based on an asserted commission of reckless
driving where the defendant was traveling more than fifty miles per hour
over the posted speed limit on a four-lane road in a residential area,
“without evidence of swerving within his lane, without evidence of weaving
outside his lane, and without evidence of actually endangering traffic or
pedestrians.”).
4
Once “good cause” for the defendant to withdraw his plea was shown
prior to sentencing, the trial court was “obligated to allow the defendant
as a matter of right to withdraw [his] plea[.]” Stewart v. State, 315 So. 3d
756, 758 (Fla. 4th DCA 2021) (quoting Smith v. State, 840 So. 2d 404, 406
(Fla. 4th DCA 2003)).
Accordingly, we reverse the order denying the defendant’s pre-sentence
motion to withdraw his plea and resulting judgment of conviction, instruct
the trial court to allow the defendant to withdraw his plea, and remand for
further proceedings consistent with this opinion.
Reversed and remanded with instructions.
DAMOORGIAN and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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