        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

                              [April 15, 2020]

   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.

CONNER, J.

   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 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. We also affirm the
trial court’s dismissal of the count charging Appellant with fleeing or
attempting to elude an officer causing serious bodily injury or death and
explain our reasoning.
                                Background

   While waiting to turn onto the same road Appellant was travelling, a
police officer in uniform driving a marked police vehicle noticed that
Appellant was speeding. The officer ran the license plate and saw that the
tag was expired, but 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.” Appellant increased his speed as he was pursued,
causing the officer to drive sixty miles an hour in order to catch up to him.

   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. 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.

   In the course of driving off the roadway and into the field, Appellant ran
over and killed a five-year-old child.

   A jury found Appellant 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. 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. The state stipulated to dismissal of the count
charging 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.

                            Appellate Analysis

   At sentencing, the trial court first addressed as a “double jeopardy”
issue raised by Appellant whether dual convictions for vehicular homicide

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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.

  “A double jeopardy claim based upon undisputed facts presents a pure
question of law, which we review de novo.” McCullough, 230 So. 3d at 590.

    In McCullough, the defendant stole a car which precipitated a high-
speed police chase, during which she struck and killed a bicyclist. Id. at
589. On appeal, she challenged the trial court’s ability to sentence her on
vehicular homicide and fleeing or attempting to elude an officer causing
serious bodily injury or death, contending that sentencing her on both
counts violated her double jeopardy protections and the single homicide
rule, since there was only one death. Id. The Second District described
the “single homicide rule” as “a judicially created extension of the
constitutional and statutory double jeopardy bar.” Id. After an extensive
examination of the case law surrounding the development of the rule and
double jeopardy analysis in Florida, the Second District held that the
defendant’s conviction for fleeing or attempting to elude an officer causing
serious bodily injury or death in addition to vehicular homicide violated
the single homicide rule, resulting in double jeopardy. Id. at 593. The
Second District remanded the case for the trial court to vacate the lesser
felony offense of vehicular homicide, leaving the fleeing or attempting to
elude conviction undisturbed. Id. at 595-96. In so holding, the Second
District relied principally on our supreme court’s opinions in State v.
Cooper, 634 So. 2d 1074, 1074-75 (Fla. 1994), and Houser v. State, 474
So. 2d 1193, 1197 (Fla. 1985). Houser and Cooper are considered the
primary case law sources for the single homicide rule.

    In McCullough, the Second District also certified conflict with McKinney,
the case the state relied upon at Appellant’s sentencing. In McKinney, the
defendant argued that his convictions for third-degree murder (using the
fleeing offense as the underlying felony to support third-degree murder)

                                     3
and fleeing or attempting to elude an officer causing serious bodily injury
or death violated the single homicide rule. 51 So. 3d at 646. The First
District disagreed, finding that because fleeing or attempting to elude an
officer causing serious bodily injury or death could be satisfied by causing
either death or serious bodily injury, the fleeing offense was “not a
homicide offense.” Id. at 648. Because the fleeing offense did not
necessarily require death, the First District concluded the single homicide
rule did not apply to the defendant’s case. Id. The court reasoned that
because the fleeing offense could be committed in situations where the
fleeing causes serious bodily injury, that inclusion “distinguishe[d] fleeing
or eluding from DWI manslaughter, which the supreme court held in
Houser to be a homicide offense rather than an enhancement to the
penalty for DWI because death was an element of the offense.” Id.

    Significantly, the McCullough decision noted that the case law on the
issue in the First District was seemingly conflicting. 230 So. 3d at 595.
In 2016, after McKinney was issued, the First District decided Crusaw v.
State, 195 So. 3d 422 (Fla. 1st DCA 2016), in which it held that dual
convictions for vehicular homicide and careless driving with a suspended
license resulting in death or serious bodily injury violated double jeopardy,
citing the supreme court Cooper decision as controlling. Id. at 422-23.
Although the Crusaw decision did not mention the single homicide rule,
its reliance on Cooper makes clear that the rule was applied. Notably,
Crusaw made no mention of McKinney.

   Further demonstrating the intradistrict conflict is the First District’s
decision in Daniel v. State, 271 So. 3d 1214 (Fla. 1st DCA 2019). In Daniel,
the First District itself noted the conflict between McKinney and Crusaw,
and determined that Crusaw was the controlling law in the district,
because it was the later decision in time. Id. at 1215 n.3. Important to
this appeal, the defendant in Daniel was sentenced on vehicular homicide
and fleeing or attempting to elude an officer causing serious bodily injury
or death, where there was only one death. Id. at 1214. The First District
vacated the fleeing or eluding an officer causing serious bodily injury or
death conviction and remanded the case for entry of a judgment on the
lesser included offense of fleeing or attempting to elude and resentencing.
Id. at 1215-16. The First District cited Cooper, Houser, Crusaw, and
McCullough as authority for its decision. Id. at 1215. Thus, it appears
McKinney is no longer good law in the First District.

    Although we have never directly addressed the issue of whether dual
convictions for vehicular homicide and fleeing or attempting to elude an
officer causing serious bodily injury or death violates the single homicide
rule when there is only one death, we have applied the single homicide

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rule in cases where a defendant was charged with second degree murder
and driving while license suspended causing death, and where a defendant
was charged with vehicular homicide and driving while license suspended
involving death. See Thomas v. State, 837 So. 2d 443, 447 (Fla. 4th DCA
2002); Pierce v. State, 718 So. 2d 806, 810 (Fla. 4th DCA 1997). We
perceive no reason to treat cases charging vehicular homicide and driving
with suspended license resulting in death offenses together differently
from cases charging vehicular homicide and fleeing or attempting to elude
an officer causing serious bodily injury or death offenses together.

   We note that the issue of whether dual convictions for vehicular
homicide and fleeing or attempting to elude an officer causing serious
bodily injury or death violate the single homicide rule is currently before
our supreme court on a certified question of great public importance. See
State v. Maisonet-Maldonado, No. SC19-1947, 2019 WL 6693244 (Fla. Dec.
9, 2019). Until the supreme court clarifies the law, we align ourselves with
the First, Second, and Fifth Districts and hold that dual convictions for
vehicular homicide and fleeing or attempting to elude an officer causing
serious bodily injury or death violate the single homicide rule when
committed in the same criminal episode causing one death.

   Affirmed.

FORST, J., and GILLESPIE, KENNETH, Associate Judge, concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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