           DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                 FOURTH DISTRICT

                              MICHAEL ANGUILLE,
                                  Appellant,

                                         v.

                              STATE OF FLORIDA,
                                   Appellee.

                                 No. 4D16-3706

                                 [April 11, 2018]

  Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward
County; Lisa Porter, Judge; L.T. Case No. 14-12508 CF10A.

   Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public
Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel,
Assistant Attorney General, West Palm Beach, for appellee.

ROBERTS, KATHLEEN, Associate Judge.

    The Defendant appeals a number of convictions and sentences resulting from
DUI and reckless driving charges. He argues that several combinations of the
convictions violate double jeopardy principles since they are degrees of the same
offenses and involve a single victim. We agree with some of his arguments, and
reverse in part. We hold that where there is a single victim and the charges arise
from a single episode, dual convictions for DUI with serious bodily injury and
DUI with property damage, as well as dual convictions for reckless driving with
serious bodily injury and reckless driving with property damage, violate the
prohibition against double jeopardy.

   The Defendant was involved in a horrific crash that left a single victim severely
injured. After an investigation the Defendant was ultimately charged in an
Amended Information with: 1. DUI with serious bodily injury; 2. reckless driving
with serious bodily injury; 3. DUI with property damage; 4. reckless driving with
property damage; and 5. refusal to submit. 1


1 While the record only contains a redacted version of the Amended Information, the
redacted portion is the “to wit” portion of the charge. The charge conference, the
arguments, and the transcript of the sentencing hearing refer to only one victim and

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    The Defendant, on the day of trial, opted to enter an open plea to the five
count Information as charged. The court accepted the plea and set the case for
sentencing. At the sentencing hearing, the defense argued that the Defendant
could not be sentenced consecutively for the DUI with serious bodily injury and
reckless driving with serious bodily injury. 2 After hearing argument from both
sides, the court agreed with the State that there was not a double jeopardy issue
in a conviction and sentence for DUI with serious bodily injury and reckless
driving with serious bodily injury when there is only one victim. The trial court
sentenced the Defendant on the two felony driving charges to incarceration in
the Department of Corrections followed by a probationary period, and sentenced
the Defendant to time served on each of the relevant misdemeanors. This appeal
follows the sentence.

   The Defendant challenges his convictions and sentences by asserting that he
cannot be convicted and sentenced of both DUI and reckless driving with serious
bodily injury, DUI and reckless driving with property damage, DUI with serious
bodily injury and property damage as to the same victim, and reckless driving
with serious bodily injury and property damage to the same victim. For the
purposes of this discussion, the issues are reconfigured to address the
relationship between DUI and reckless driving and secondly the relationship
between DUI and its enhancements and reckless driving and its enhancements.

   1. Convictions for both DUI and reckless driving do not violate Double
      Jeopardy.

   The Defendant asserts that convictions for DUI with serious bodily injury and
reckless driving with serious bodily injury violate the principles of double
jeopardy. The defense’s main contention appears to be that one cannot be
punished twice for one injured person. However, this argument relies solely on
the serious bodily injury enhancement of the charges and not the underlying
charges themselves. Simply put, the question is whether the Defendant can be
convicted of both DUI and reckless driving, and the answer to that question is
yes.

   While recognizing that principles of double jeopardy are of the utmost
concern, the courts have long recognized the desire to punish for separate


there is no reason to otherwise believe that another name lies beneath the redacted
version.
2 The defense did not raise any other double jeopardy concerns at the trial court level.

The State hints at a preservation issue, but “because dual convictions in violation of the
prohibition against double jeopardy constitute fundamental error, ‘a double jeopardy
claim may be raised for the first time on appeal.’” Rimondi v. State, 89 So. 3d 1059,
1060 (Fla. 4th DCA 2012) (quoting DeLuise v. State, 72 So. 3d 248, 252 (Fla. 4th DCA
2011)). Further, “[a] defendant who enters a general or open plea does not waive double
jeopardy claims.” Demps v. State, 965 So. 2d 1242, 1243 (Fla. 4th DCA 2007).

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offenses that arise out of the same transaction or occurrence, in accord with
constitutional demands. “In determining the constitutionality of multiple
convictions and sentences for offenses arising from the same criminal
transaction, the dispositive question is whether the legislature ‘intended to
authorize separate punishments for the two crimes.’” M.P. v. State, 682 So. 2d
79, 81 (Fla. 1996) (quoting Albernaz v. United States, 450 U.S. 333, 344 (1981)).
“[T]here is no constitutional prohibition against multiple punishments for
different offenses arising out of the same criminal transaction as long as the
Legislature intends to authorize separate punishments.” Valdes v. State, 3 So.
3d 1067, 1069 (Fla. 2009). “Legislative intent to authorize separate punishments
can be explicitly stated in a statute, or can be discerned through the Blockburger
test of statutory construction.” M.P., 682 So. 2d at 81 (citation omitted).

      The Legislature has stated its intent to convict and sentence for
      each offense defined as separate under the Blockburger test, with
      three exceptions: offenses requiring identical elements of proof,
      offenses which are degrees of the same offense as provided by
      statute, and lesser offenses which have elements wholly subsumed
      by the greater offense. § 775.021(4)(b), Fla. Stat.

Pizzo v. State, 945 So. 2d 1203, 1206 (Fla. 2006). Specifically, section 775.021,
“Rules of construction,” provides in relevant part:

      (4)(a) Whoever, 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; and the
      sentencing judge may order the sentences to be served concurrently
      or consecutively. For the purposes of this subsection, offenses 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.
      (b) The intent of the Legislature is 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 as set forth in
      subsection (1) to determine legislative intent. Exceptions to this rule
      of construction are:
             1.    Offenses which require identical elements of proof.
             2.    Offenses which are degrees of the same offense as
             provided by statute.
             3.    Offenses which are lesser offenses the statutory
             elements of which are subsumed by the greater offense.

§ 775.021(4), Fla. Stat. (2014) (codifying Blockburger).



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    The Defendant specifically challenges the dual convictions for reckless driving
and DUI as impermissible under the second exception, arguing they are degrees
of the same offense. The Florida Supreme Court has explained that this
exception for degrees of the same offense “is intended to apply narrowly” and
“prohibits separate punishments only when a criminal statute provides for
variations in degree of the same offense, so that the defendant would be punished
for violating two or more degrees of a single offense.” Valdes, 3 So. 3d at 1076
(quoting State v. Paul, 934 So. 2d 1167, 1177 (Fla. 2006) (Cantero, J.,
concurring)).

    Utilizing this framework, separate charges for DUI and reckless driving do not
violate the principles of double jeopardy. 3 The cases relied upon by the defense
to argue that degrees of the same offense may arise from different statutes are
unpersuasive because they predate the Valdes case, which limits the degree
variant exception to offenses arising from the same statute. See Brown v. State,
189 So. 3d 837, 840 (Fla. 4th DCA 2015). Section 775.021(4) expressly states
an inherent desire to punish under separate statutory schemes unless otherwise
so defined. Adding the serious bodily injury enhancement to both reckless
driving and the DUI charge does not change the underlying elements of the
offense, but merely adds an element to enhance the penalties of the underlying
charges. Reckless driving and DUI do not require identical elements of proof,
they are not degrees of the same offense, nor is either a lesser offense that is
subsumed within the other. Therefore, separate convictions for DUI with serious
bodily injury and reckless driving with serious bodily injury, where the injury is
to the same person, falls firmly within approved boundaries of double jeopardy
principles and is expressly allowed within the legislative scheme.

    2. Convictions for degrees of the same offense involving the same victim
       violate the principles of Double Jeopardy.

   The second issue brought to this Court is the relationship between degrees of
the same offense under the same statute and how those enhancements, that is,
degrees of the same offense, are applied when there is but one victim. It is well
established that multiple convictions for DUI can arise out of the same


3 Many of the defense cases involve DUI manslaughter and vehicular homicide. We are
mindful of the fact that death is different; the “single homicide rule” may come into play.
McCullough v. State, 230 So. 3d 586, 589 (Fla. 2d DCA 2017); see also Houser v. State,
474 So. 2d 1193, 1197 (Fla. 1985) (“Florida courts have repeatedly recognized that the
legislature did not intend to punish a single homicide under two different statutes. . . .
The principle has been applied in the case of dual charges of DWI manslaughter and
manslaughter.” (citations omitted)); Oakley v. State, 43 Fla. L. Weekly D295 (Fla. 4th
DCA Feb. 7, 2018) (“The Houser rule—‘only one homicide conviction and sentence may
be imposed for a single death’—instructs that Appellant’s dual homicide charges [‘of one
count of first degree felony murder and one count of vehicular manslaughter’] for a
single victim was in error.”).

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transaction or occurrence if there are injuries or damages to multiple persons.
Melbourne v. State, 679 So. 2d 759, 765 (Fla. 1996). In reading Melbourne in
conjunction with Valdes, we hold that there can be but one conviction for each
victim, regardless of whether that victim sustains property damage, serious
bodily injury, or both. The Valdes case provides the framework for the analysis.
As discussed above, the addition of the enhancement of “serious bodily injury”
does not change the elements of the underlying offense. The charge itself puts
the defendant on notice of the crime charged. The enhancement gives definition
to the degree of the offense the defendant is facing for the charge. While Valdes
allows for prosecution for separate offenses that involve the same victim, it also
prohibits separate offenses for varying degrees of the same charge.

   In the prosecution for multiple DUIs that arise out of a single transaction, in
order to succeed the State must first establish the defendant is guilty of DUI and
then establish a causal connection between the defendant’s driving and the
damage so caused by that driving:

      (1) A person is guilty of the offense of driving under the influence
      and is subject to punishment as provided in subsection (2) if the
      person is driving or in actual physical control of a vehicle within this
      state and:
             (a)    The person is under the influence of alcoholic
             beverages, any chemical substance set forth in s. 877.111, or
             any substance 14 controlled under chapter 893, when
             affected to the extent that the person’s normal faculties are
             impaired;
             (b)    The person has a blood-alcohol level of 0.08 or more
             grams of alcohol per 100 milliliters of blood; or
             (c)    The person has a breath-alcohol level of 0.08 or more
             grams of alcohol per 210 liters of breath.

      ....

      (3) Any person:
            (a)   Who is in violation of subsection (1);
            (b)   Who operates a vehicle; and
            (c)   Who, by reason of such operation, causes or contributes
            to causing:
                  1.    Damage to the property or person of another
                  commits a misdemeanor of the first degree, punishable
                  as provided in s. 775.082 or s. 775.083.
                  2.    Serious bodily injury to another, as defined in s.
                  316.1933, commits a felony of the third degree,
                  punishable as provided in s. 775.082, s. 775.083, or s.
                  775.084.


                                         5
§ 316.193, Fla. Stat. (2014).
   Similar language is found in the reckless driving statute:

      (1)(a) Any person who drives any vehicle in willful or wanton
      disregard for the safety of persons or property is guilty of reckless
      driving.

      ....

      (3) Any person:
            (a)   Who is in violation of subsection (1);
            (b)   Who operates a vehicle; and
            (c)   Who, by reason of such operation, causes:
                   1.    Damage to the property or person of another
                  commits a misdemeanor of the first degree, punishable
                  as provided in s. 775.082 or s. 775.083.
                  2.     Serious bodily injury to another commits a felony
                  of the third degree, punishable as provided in s.
                  775.082, s. 775.083, or s. 775.084. The term “serious
                  bodily injury” means an injury to another person, which
                  consists of a physical condition that creates a
                  substantial    risk    of   death,    serious  personal
                  disfigurement, or protracted loss or impairment of the
                  function of any bodily member or organ.

§ 316.192, Fla. Stat. (2014).

    In looking at the statutory construction in line with section 775.021(4), to
allow convictions for both the serious bodily injury and the property damage of
the victim would run afoul of double jeopardy principles. The victim is the
“another” for the purposes of statutory construction. She is the entity so
damaged or injured, either to her person or to her property. The separation of
the enhancements for serious bodily injury from personal injury or property
damage delineates the degree of the offense for which the defendant can be
convicted, for the causational damage inflicted upon one victim for the offense of
DUI. Thus, since the offenses of DUI with serious bodily injury and DUI with
property damage as they relate to one victim are degrees of the same offense
as provided by statute, the convictions for both cannot stand. The same logic
applies to the statutory construction of reckless driving.
   It is for the foregoing reasons that we affirm the convictions for DUI with
serious bodily injury and reckless driving with serious bodily injury as not
violative of due process principles. Because the misdemeanor DUI with property
damage and reckless driving with property damage convictions are degrees of



                                        6
the same offenses as the felony charges, we remand for the trial court to vacate
those two misdemeanor convictions.
   Affirmed in part, reversed in part, and remanded with instructions.

CIKLIN and CONNER, JJ., concur.

                              *         *        *

   Not final until disposition of timely filed motion for rehearing.




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