       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                            SHIRLEY COTO,
                               Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D18-2602

                             [May 20, 2020]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Bernard I. Bober, Judge; L.T. Case No. 16011469 CF10A.

   Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public
Defender, West Palm Beach, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Richard Valuntas,
Assistant Attorney General, West Palm Beach, for appellee.

KLINGENSMITH, J.

   Shirley Coto appeals her conviction and sentence for several charges
stemming from her involvement in a two-vehicle collision that left one dead
and three others injured. Although she was acquitted of several charges,
Coto claims that the trial court erred in adjudicating her guilty of and
sentencing her on four counts of driving without a license and causing
death or serious bodily injury under section 322.34(6), Florida Statutes
(2015). She alleges that her multiple convictions on these charges violates
double jeopardy. We agree and reverse as to that issue but affirm as to all
other issues raised on appeal.

   On the day of the incident, Coto drove her friend’s car to pick up four
children, including Coto’s daughter, from school. Although Coto had
permission to get the children from school, she was supposed to walk them
home because Coto did not have a valid driver’s license. While in the
vehicle, none of the children were wearing seatbelts. After picking up the
children, Coto made a stop at a local liquor store before heading to a
nearby shopping plaza. While preparing to make a left turn into the plaza,
Coto waited at the intersection until the oncoming traffic was clear. Just
as Coto made her turn, another car ran the red light and crashed into the
side of her vehicle in the middle of the intersection.

    As a result of the crash, one of the children in Coto’s vehicle died and
the three who survived, including Coto’s daughter, sustained serious
injuries. The officer who arrived on the scene noticed that Coto’s eyes were
watery, glassy, and bloodshot and that her breath smelled of alcohol.
Coto’s blood was drawn twice at the hospital approximately five hours after
the crash, and testing showed that she had a blood alcohol concentration
of .09 and .07. Over a year later, the State charged Coto by information
with eighteen separate counts: aggravated manslaughter of a child (Count
I); DUI manslaughter, unlawful blood alcohol level (Count II); DUI serious
bodily injury, unlawful blood alcohol level (Counts III, IV, and V); DUI
manslaughter, impairment (Count VI); DUI serious bodily injury,
impairment (Counts VII, VIII, IX); operating a motor vehicle without a
driver’s license and negligently or carelessly causing death or serious
bodily injury (Counts X, XI, XII and XIII); neglect of a child (Counts XIV,
XV and XVI); driving without vehicle registration (Count XVII); and
operating a motor vehicle with an unlawful license plate (Count XVIII).

   At Coto’s trial, an accident reconstructionist testified that while the
other driver was the primary cause of the crash, Coto’s failure to observe
the danger posed by turning in front of a speeding vehicle was the
secondary cause of the accident. He also stated that Coto’s drinking
impaired her normal faculties to the point that she did not properly
perceive the other vehicle encroaching. Additionally, the reconstructionist
could not discount the effect that the children’s failure to have their
seatbelts on, and Coto’s failure to have a driver’s license, played in the
accident.

   At the end of deliberations, the jury found Coto guilty of one count of
operating a vehicle without a valid license causing death; three counts of
operating a vehicle without a license causing serious bodily injury; three
counts of child neglect; and failure to register a motor vehicle. The jury
acquitted Coto of all the DUI-related charges.

    Coto filed post-verdict motions for judgment of acquittal on some of the
charges. Although the trial court granted her motion as to the child
neglect charges, it denied her motion as to the operating a vehicle without
a license causing death and serious bodily injury charges and adjudicated
her guilty on those counts.

   At sentencing, the State prepared a Criminal Punishment Code (“CPC”)
score sheet that designated one of the four driving without a license

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causing death or serious bodily injury counts as the primary offense, with
each of the other three counts of that offense and the misdemeanor failure
to register a motor vehicle offense scored as “additional offenses.” In all,
Coto was assessed 240 victim injury points — 120 for one death and 120
for the severe bodily injury of three individuals. Other points were also
assessed for Coto’s prior convictions, all of which were driver’s license or
vehicle registration violations. Her total sentencing points gave Coto a
lowest-permissible sentence of approximately sixteen years in prison. The
court ultimately sentenced Coto to seventeen years in prison—three
consecutive five-year sentences, followed by a consecutive two-year
sentence. The trial court also entered orders directing Coto to pay
restitution to the three children who were injured in the crash.

    Coto later filed her motion to correct a sentencing error under Florida
Rule of Criminal Procedure 3.800(b)(2) with the trial court. Coto claimed
that: (1) the adjudication of guilt as to four counts of driving without a
driver’s license and causing serious bodily injury or death violated the
constitutional prohibition against double jeopardy because her driving
without a license was a single act; (2) the assessment of sentencing points
for those four counts violated double jeopardy for the same reason; (3) the
imposition of 240 victim injury points was erroneous because Coto’s
driving without a driver’s license was not the primary cause of the injuries
or death at issue; and (4) the imposition of restitution was erroneous
because Coto’s driving without a license did not proximately cause the
injuries or death at issue. The trial court entered an order denying all of
Coto’s claims without a hearing. This appeal followed.

   Although Coto first raised the double jeopardy claim in her Rule
3.800(b)(2) motion, it was not proper there. See Farrar v. State, 42 So. 3d
265, 266 (Fla. 5th DCA 2010). However, a claim brought to the court by
improper means may nonetheless be reviewed by an appellate court for
fundamental error. See Schwartzberg v. State, 215 So. 3d 611, 615 (Fla.
4th DCA 2017) (“[A] double jeopardy violation is fundamental error.”).
“Double jeopardy claims based on undisputed facts present questions of
law and are subject to de novo review.” Id. (quoting Graham v. State, 207
So. 3d 135, 137 (Fla. 2016)).

   “The constitutional protection against double jeopardy is found in both
article I, section 9, of the Florida Constitution and the Fifth Amendment
to the United States Constitution . . . .” Valdes v. State, 3 So. 3d 1067,
1069 (Fla. 2009). This protection prevents the state or federal government
from “subjecting a person to multiple prosecutions, convictions, and
punishments for the same criminal offense.” Id. However, it is not
absolute. “Despite this constitutional protection, there is no constitutional

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prohibition against multiple punishments for different offenses arising out
of the same criminal transaction as long as the Legislature intends to
authorize separate punishments.” Id. In other words, “[t]he Double
Jeopardy Clause ‘presents no substantive limitation on the legislature’s
power to prescribe multiple punishments,’ but rather, ‘seeks only to
prevent courts either from allowing multiple prosecutions or from
imposing multiple punishments for a single, legislatively defined offense.’”
Borges v. State, 415 So. 2d 1265, 1267 (Fla. 1982) (quoting State v.
Hegstrom, 401 So. 2d 1343, 1345 (Fla. 1981)).

   The Florida Supreme Court has previously addressed double jeopardy
in the context of a similar case where a defendant was charged and
convicted of multiple counts of driving with a suspended license causing
death or serious injuries.       There, the Court found such multiple
convictions violated the constitutional prohibition against double
jeopardy. See Boutwell v. State, 631 So. 2d 1094, 1095 (Fla. 1994). In
Boutwell, the defendant was involved in a car accident that caused serious
injuries to four occupants of the other vehicle. Like Coto, Boutwell was
also driving without a license. Id. at 1094-95. Boutwell was subsequently
charged and convicted under section 322.24(3), Florida Statutes (1991), of
four counts of driving while license suspended causing death or serious
injuries. Id. at 1095. Like Coto, Boutwell claimed “that his multiple
convictions violated the constitutional prohibition against double jeopardy
because his actions constituted but one criminal offense.” Id.

   On appeal, the Court agreed with the defendant and quashed the lower
court’s decision. Id. The Court noted that section 322.24(3) “does no more
than enhance the penalty for driving with a suspended license in cases
where the driver through the careless or negligent operation of his vehicle
causes death or serious bodily injury.” Id. To the Court it was mere
happenstance that four persons were injured as a result of Boutwell’s
negligent driving instead of only one. See id.

    Notwithstanding Boutwell, the State now urges this court to uphold
Coto’s separate convictions under the same reasoning other courts have
used to uphold multiple DUI convictions arising out of the same incident.
See, e.g., Melbourne v. State, 679 So. 2d 759, 765 (Fla. 1996); Boutwell,
631 So. 2d at 1095-96 (Grimes, J., dissenting). In Melbourne, the
defendant was convicted of two counts of DUI manslaughter and one count
of DUI with serious bodily injury. Id. at 765. On appeal, the defendant
argued that her convictions violated double jeopardy because they arose
“from a single violation of the DUI statute.” Id. However, the Court
disagreed. Id. It reasoned that “multiple convictions c[ould] arise from a
single violation of the DUI statute where injury results to several persons.”

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Id. To explain why, it compared a DUI violation to driving with a
suspended license, the violation in Boutwell:

      In the case of driving with a suspended license, the link
      between the violation and injury is indirect –– the suspended
      license in no way causes the driver’s carelessness or
      negligence. To allow multiple convictions for a single violation
      of this statute would be illogical because the violation does not
      cause injury to any of the victims. In the case of DUI, on the
      other hand, the link is direct –– the driver’s intoxication
      results in his or her inability to drive safely. The DUI driver
      may sustain multiple convictions because the violation causes
      injury to each victim.

Id. Former Justice Stephen Grimes disagreed with this reasoning in his
dissent in Boutwell, 631 So. 2d at 1096 (Grimes, J., dissenting). There he
opined: “[i]f multiple convictions are permitted for DUI manslaughter and
DUI with serious bodily injury when multiple victims are involved, there is
no reason why the same principle should not apply to driving with a
suspended license and causing serious bodily injury to more than one
person.” Id.

   After the Boutwell and Melbourne decisions, several district courts,
including ours, confirmed the distinction between DUI violations and
driving with a suspended license. See State v. Lamoureux, 660 So. 2d
1063, 1064-65 (Fla. 2d DCA 1995); Wick v. State, 651 So. 2d 765, 766 (Fla.
3d DCA 1995); see also Jackson v. State, 634 So. 2d 1103, 1104 (Fla. 4th
DCA 1994) (stating that chapter 322 “contemplates convictions arising out
of separate driving episodes, not multiple convictions arising out of one
driving episode”).

   The act of driving with no valid license or while your license is
suspended, cancelled, or revoked is a “continuous, unlawful act . . . set on
foot by a single impulse.” See Hallman v. State, 492 So. 2d 1136, 1138
(Fla. 2d DCA 1986)) (quoting United States v. Midstate Horticultural Co.,
306 U.S. 161, 166 (1939)). Each time an individual with no license or
whose license has been suspended, cancelled, or revoked “makes the
decision to assume control of his vehicle, he has broken the law.” Id. But
in Boutwell, the Court made clear that section 322.34(6) only enhanced
the punishment for that offense “in cases where the driver through the
careless or negligent operation of his vehicle causes death or serious bodily
injury.” See Boutwell, 631 So. 2d at 1095. Thus, “[w]hen an illegal act, as
here, is ongoing, there is simply no practicable place to draw the line
between one charge and several.” Hallman, 492 So. 2d at 1138.

                                     5
Accordingly, it is the course of action of driving with no valid license and
causing injury that is prohibited; thus, there can only be one penalty for
such an offense. See Blockburger v. United States, 284 U.S. 299, 302
(1932) (“[W]hen the impulse is single, but one indictment lies, no matter
how long the action may continue. If successive impulses are separately
given, even though all unite in swelling a common stream of action,
separate indictments lie.”) (citation omitted). Because “the legislature has
not explicitly stated the unit of [this] offense, the doubt [should] be
judicially resolved in favor of construing a single transaction as a single
offense.” Hallman, 492 So. 2d at 1138 (quoting People v. Dillingham, 249
N.E.2d 294, 297 (1969)).

    We find that Coto’s adjudication and sentence for multiple counts
under section 322.34, the driving with a suspended license statute,
violates double jeopardy. While Justice Grimes makes a compelling
argument in his Boutwell dissent that multiple convictions under section
322.34 should be permitted, that viewpoint was expressly rejected by the
Florida Supreme Court when they held in Melbourne that “only one
conviction can arise from a single violation of the driving with a suspended
license statute even though injury results to several persons.” 679 So. 2d
at 765. We are constrained to follow that result. Section 322.34(6)
contains no language similar to that found in the DUI statute, section
775.021(4)(b), Florida Statutes (2015), which states that the legislature
intends to convict and sentence a defendant for “each criminal offense”
they commit in the course of one criminal transaction, unless several
exceptions are present. Though the State makes several arguments about
public policy and legislative intent as to why multiple convictions under
section 322.34(6) should be authorized just as they are in DUI cases, the
expression of such intent “belong[s] to the legislature.” See Stanley v.
Quest Intern. Inv., Inc., 50 So. 3d 672, 673 (Fla. 4th DCA 2010).

   We also note that since being apprised of the double jeopardy issue in
the Boutwell and Melbourne decisions the legislature has not chosen to
amend the statute. “Long-term legislative inaction after a court construes
a statute amounts to legislative acceptance or approval of that judicial
construction.” State v. Cable, 51 So. 3d 434, 443 (Fla. 2010) (quoting
Goldenberg v. Sawczak, 791 So. 2d 1078, 1081 (Fla. 2001)); accord Faro v.
Porchester Holdings, Inc., 792 So. 2d 1262, 1263 (Fla. 4th DCA 2001). For
those reasons, Coto’s multiple convictions under section 322.34 cannot
stand.

   However, there is no error in the court’s assessment of multiple victim
injury points in this case. Florida Rule of Criminal Procedure 3.704(d)(9)
states that a court may add points to a defendant’s CPC score sheet for

                                     6
“victim injury” when there is “physical injury or death suffered by a person
as a direct result of any offense pending before the court for sentencing.”
Accord § 921.0021(7)(a), Fla. Stat. (2018). These victim injury points
“must be scored for each victim physically injured and for each offense
resulting in physical injury whether there are 1 or more victims” for all
offenses which the defendant has been convicted. Fla. R. Crim. P.
3.704(d)(9). When an individual is charged under section 322.34(6), “a
determination already has been made that the person is no longer fit to be
driving on Florida’s highways.” State v. Smith, 638 So. 2d 509, 510 (Fla.
1994). Thus, a causal connection exists between Coto’s criminal offense
of driving without a valid license causing death or serious bodily injury
and the injury to Coto’s passengers. This causal connection supports the
imposition of victim injury points. See Benson v. State, 763 So. 2d 1235,
1236 (Fla. 2d DCA 2000) (holding that the causation requirement was met
because the passenger in the defendant’s vehicle “was injured as a direct
result of [the defendant’s] careless or negligent operation of the car without
a license.”); see also Block v. Sec’y, Dep’t of Corr., 2019 WL 700113, at *7
(M.D. Fla. Feb. 20, 2019) (stating that a conviction under section 322.34(6)
can support the imposition of victim injury points).

    In sum, Coto can only be convicted and sentenced once under section
322.34(6) as her violation of that section constituted only one criminal
offense. See Boutwell, 631 So. 2d at 1095. We therefore vacate three of
Coto’s four convictions under section 322.34(6)(a) and remand with
directions for the trial court to sentence her accordingly for the remaining
conviction pursuant to that section. We affirm as to all other issues
without further discussion.

   Affirmed in part, Reversed in part, and Remanded.

CONNER and FORST, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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