       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                             JOSUE NATAL,
                               Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D17-1271

                             [July 10, 2019]

  Appeal and cross-appeal from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Martin S. Fein, Judge; L.T. Case No. 14-
005874CF10A.

  Carey Haughwout, Public Defender, and Logan T. Mohs, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Mitchell A. Egber,
Assistant Attorney General, West Palm Beach, for appellee.

        ON MOTION FOR REHEARING AND WRITTEN OPINION

WARNER, J.

   We withdraw our prior opinion and substitute the following in its place.

    Appellant challenges his conviction for reckless driving for which he
was sentenced to three years in prison. He contends that the trial court
erred in denying his motion for judgment of acquittal, in that his driving
speed alone was insufficient to constitute recklessness. We conclude that
appellant’s speed was grossly excessive under the circumstances and
affirm.

   Appellant was originally charged with vehicular homicide. At trial, the
State presented the following evidence. A husband, driving with his wife,
was heading west on Sheridan Street in Broward County on a clear
Saturday afternoon. The husband was stopped to make a left-hand turn
across the eastbound lanes of Sheridan onto 58th Terrace. The husband
saw a car in the distance (heading east on Sheridan) about two football
fields away and believed that he could safely make the left-hand turn. He
started the turn, but he did not complete it because his van was hit
broadside on his wife’s side of the vehicle. The husband did not hear any
tires squealing prior to the accident. His wife was ejected from her seat.
The van rolled on top of her and she died in the crash.

   Appellant was driving a Corvette eastbound on Sheridan. Multiple
witnesses testified to seeing or hearing, the Corvette zooming by other
vehicles on the road until the Corvette crashed into the left-turning van.
A traffic investigation determined that appellant was braking for only a
very small amount of time, or not at all, prior to the crash. Another officer
obtained a video from a nearby business which showed the Corvette
speeding past. The officer determined that the Corvette was going between
eighty-two and eighty-five miles per hour, more than double the forty-mile-
per-hour speed limit.

   An accident reconstruction expert testified from a review of the
Corvette’s black box that the Corvette was accelerating prior to the crash.
At five seconds before the crash, it was travelling at sixty-eight miles per
hour. At four seconds before the crash, the Corvette was travelling at
seventy-six miles per hour, and the throttle was at 100, meaning
appellant’s foot was on the gas at that time. At three seconds before the
crash, the Corvette was travelling at eighty-three miles per hour with his
foot still on the throttle. At two seconds before the crash, the readings
showed that appellant had lifted his foot off the throttle. The expert
concurred with the husband that the Corvette was two football fields away
when the husband started to make the turn, and it was reasonable for the
husband to believe that he had enough time to make the turn. It was
unexpected that the Corvette would be speeding up.

   The area of Sheridan Street where the accident occurred was a mixed
neighborhood of residences and business. The street is three-lanes wide
going in both directions, and the speed limit was forty miles per hour. A
bus stop was close by, and pedestrians were waiting for the bus at the
time. Another witness was pulling into his residential driveway off
Sheridan.

    After presentation of the State’s case, appellant moved for a judgment
of acquittal, arguing that in order for the State to prove reckless driving, it
had to show willful and wanton behavior on appellant’s part. Appellant
argued that the State had merely shown that he was speeding and
speeding alone was insufficient to show recklessness. The State, on the
other hand, contended that this was grossly excessive speed which can
constitute reckless conduct. Driving at the speeds recorded by the

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Corvette constituted wanton behavior. There were pedestrians, people at
the bus stop, a man pulling into his driveway, and appellant had a
passenger in his car. All of this taken together showed a willful or wanton
disregard for the safety of others. The trial court denied the motion.

   Appellant testified in his defense, stating that he and his cousin were
traveling east on Sheridan, in the right-hand lane, when he saw the van
making the left-hand turn across Sheridan and moved to the middle lane
to try to avoid the accident. At the time he saw the van, he said he was
sixty or seventy-five feet away. He attempted to dodge the van, but it kept
going and he hit it. After his testimony, appellant renewed his motion for
judgment of acquittal, which the trial court denied. The case was
submitted to the jury, which returned a verdict finding appellant guilty of
the lesser-included offense of reckless driving. The court sentenced
appellant to three years in prison. This appeal followed.

    Appellant contends that the court erred in denying his motion for
judgment of acquittal because the evidence shows only that appellant was
speeding, which is insufficient to prove recklessness. A de novo standard
of review applies when reviewing a motion for judgment of acquittal. Pagan
v. State, 830 So. 2d 792, 803 (Fla. 2002); Santisteban v. State, 72 So. 3d
187, 194 (Fla. 4th DCA 2011). “In moving for a judgment of acquittal, a
defendant admits the facts in evidence and every conclusion favorable to
the [State] that may be fairly and reasonably inferred from the evidence.”
Turner v. State, 29 So. 3d 361, 364 (Fla. 4th DCA 2010). A court should
grant a motion for judgment of acquittal only if “the evidence is such that
no view which the jury may lawfully take of it favorable to the opposite
party can be sustained under the law.” Lynch v. State, 293 So. 2d 44, 45
(Fla. 1974).

    In Pozo v. State, 963 So. 2d 831 (Fla. 4th DCA 2007), we noted that in
this district, grossly excessive speed alone can constitute reckless conduct
to support a charge of vehicular homicide. We relied on Copertino v. State,
726 So. 2d 330, 332-33 (Fla. 4th DCA 1999):

      [I]t is one thing to speed slightly over the posted limit, and it
      is quite another matter to drive at such an immensely
      excessive rate that no one could reasonably drive. In our
      opinion, the rate of speed of a vehicle can be firmly shown by
      the evidence to be so excessive under the circumstances that
      to travel that fast under the conditions is by itself a reckless
      disregard for human life or the safety of persons exposed to
      the speed. For example, while driving 90 mph at Sebring on
      a test track might not even be negligent conduct, racing at 90

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      mph in front of school where children are entering or leaving
      would surely be so flagrant as to show a reckless disregard for
      human life and safety.

Id. at 833 (emphasis in original). In Pozo, the defendant was driving
between sixty-seven to ninety miles per hour in a residential area, which
we said alone justified the denial of a motion for judgment of acquittal. Id.
In Copertino, the defendant was driving ninety miles per hour on a major
thoroughfare, although the speed limit was not stated in the opinion.

   While we have stated that speed alone can justify the denial of a
judgment of acquittal, each case always turns on its own specific facts. In
particular, the area in which the speeding occurs is a significant factor. A
vehicle travelling ninety miles per hour on an interstate highway does not
pose the same level of wanton conduct as does a vehicle travelling at that
same speed on a street with various side streets, driveways entering the
street, and overall additional congestion.

   In this case, appellant was driving more than twice the speed limit in a
mixed residential/commercial neighborhood. Pedestrians were standing
by the roadway waiting for a bus. A homeowner pulled into his driveway
which fronts on Sheridan. While appellant says that he saw only the van
sixty to seventy-five feet prior to impact, the victim stated that he saw
appellant 200 yards away. Appellant continued to accelerate until two
seconds before the crash, and there was very little braking. Thus, we
conclude that the State’s evidence was sufficient to overcome a motion for
judgment of acquittal.

    Appellant most strongly relies on Luzardo v. State, 147 So. 3d 1083
(Fla. 3d DCA 2014), in which the Third District reversed the defendant’s
conviction for vehicular homicide, concluding that the evidence was
insufficient to show the required reckless conduct for the charge.
However, that case is distinguishable on its facts. There, the defendant
was driving eastbound on the Tamiami Trail in Miami-Dade County, in a
portion west of the developed area of Miami. Id. at 1084. In other words,
the area was a rural area of the Everglades, not a residential or commercial
area. The defendant was travelling at eighty-four miles per hour in a fifty-
five mile-per-hour speed zone and struck a vehicle turning left in front of
him, although he attempted to avoid the collision. Id. at 1084-85. One of
the passengers in the left-turning vehicle was killed. Id. at 1085. In
reversing the conviction, the court acknowledged that, “The determination
of a prima facie case of recklessness in a vehicular homicide case is a fact
intensive, ad hoc inquiry.” Id. at 1086. The court noted that the case did
not occur in a residential area, and the defendant had attempted to avoid

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the collision. Id. at 1088. It focused on the actions of the defendant and
determined that they did not amount to recklessness.

   In contrast, in this case, appellant was speeding (and accelerating) at
more than twice the posted speed limit in a residential/commercial
neighborhood. The State presented evidence from which it can be
concluded that he did not attempt to avoid the accident. We find that his
grossly excessive speed alone, given the area where he was driving, was
sufficiently reckless that the court properly denied the motion for
judgment of acquittal.

   Affirmed.

FORST and KUNTZ, JJ., concur.




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