         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D18-0516
                 _____________________________

MICHAEL DESHON DANIEL,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Escambia County.
John L. Miller, Judge.

                          May 6, 2019


PER CURIAM.

     Appellant led police on a high-speed car chase through a
residential neighborhood after an officer attempted to pull him
over for running a stop sign. The chase ended when Appellant’s
car collided with a minivan and came to rest in a nearby yard. The
driver of the minivan was killed in the crash and one of the
passengers was seriously injured. The other passengers in the
minivan also suffered injuries, as did several persons in the yard
where Appellant’s car came to rest. Appellant fled the scene on
foot but was apprehended a short distance away.

     Appellant was charged with multiple offenses arising out of
this criminal episode, including vehicular homicide and fleeing or
eluding. 1 The victims listed in the information for the fleeing or
eluding count were the deceased driver, the injured passengers,
and the injured persons in the yard where Appellant’s car came to
rest; but, for reasons not explained in the record, the jury
instructions for the fleeing or eluding count omitted “serious bodily
injury” as an element of the offense. 2

     Appellant’s sole defense at trial was that he was not driving
the car that collided with the minivan. This defense was extremely
weak and was rejected by the jury, which found Appellant guilty
“as charged” on all counts. The trial court adjudicated Appellant
guilty on all counts and sentenced him to concurrent 25-year
prison terms on the vehicular homicide and fleeing or eluding
counts and to time-served on the other counts.

     On appeal, Appellant argues that his dual convictions for
vehicular homicide and fleeing or eluding are barred by the
judicially-created “single homicide rule” because due to how the
jury was instructed on the fleeing or eluding count, both
convictions were necessarily based on the death of the minivan’s
driver and “there can be but one penalty imposed for causing the

    1   We use the phrase “fleeing or eluding” as a shorthand
reference for the first-degree felony offense of fleeing or attempting
to elude a law enforcement officer in an agency vehicle with siren
and lights activated, at high speed, causing death or serious bodily
injury. See § 316.1935(3)(b), Fla. Stat. (2016).
    2   The jury instructions provided in pertinent part:

    To prove the crime of Fleeing or Eluding a Law
    Enforcement Officer, the State must prove the following
    five elements beyond a reasonable doubt:

                           *   *       *

        5. As a result of [Appellant’s] fleeing or eluding at
    high speed, or wanton disregard for safety, he caused the
    death of another person.

(emphasis supplied).

                                   2
death of a single victim.” State v. Cooper, 634 So. 2d 1074, 1074
(Fla. 1994); 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.”). We agree with this argument based on
Crusaw v. State, 195 So. 3d 422 (Fla. 1st DCA 2016), in which we
held that the single homicide rule precludes dual convictions for
vehicular homicide and careless driving causing death or great
bodily injury where both offenses involved the same victim. 3
Accord McCullough v. State, 230 So. 3d 586, 593 (Fla. 2d DCA
2017) (holding that the single homicide rule bars dual convictions
for vehicular homicide and fleeing or eluding when the offenses
involve the same victim).

     The appropriate remedy under these circumstances is—as
Appellant argues—to vacate the first-degree fleeing or eluding
conviction and remand for entry of a judgment of conviction on the
lesser included offense of second-degree fleeing or eluding under
section 316.1935(3)(a), Florida Statutes. See Cooper, 634 So. 2d at
1074-75 (holding that a defendant convicted of DUI manslaughter
may not also be convicted of driving with a suspended license and
carelessly or negligently causing death, but he may also be
convicted of a lesser included offense of the latter crime); Linton v.
State, 212 So. 3d 1100, 1103 (Fla. 5th DCA 2017) (vacating
defendant’s first-degree fleeing or eluding conviction under the
single homicide rule where the defendant was also convicted of
felony murder and remanding for entry of a judgment convicting
    3  We recognize that in McKinney v. State, 51 So. 3d 645 (Fla.
1st DCA 2011), review denied, 95 So. 3d 213 (Fla. 2012), we held
that fleeing or eluding is not a “homicide offense” subject to the
single homicide rule because the offense can be committed without
causing a death. However, because the offense at issue in Crusaw
could also be committed without causing a death, the holdings in
McKinney and Crusaw conflict and the later decision (Crusaw)
controls. See R.J. Reynolds Tobacco Co. v. Marotta, 214 So. 3d 590,
604 (Fla. 2017) (citing Little v. State, 206 So. 2d 9, 10 (Fla. 1968),
for the proposition that “where intradistrict conflict exists, the
decision later in time overrules the former as the decisional law of
the district”); State v. Walker, 593 So. 2d 1049, 1049-50 (Fla. 1990)
(same).

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the defendant of second-degree fleeing or eluding). Appellant is
also entitled to resentencing. 4 See Linton, 212 So. 3d at 1103 (“The
trial court shall also conduct appropriate proceedings to
resentence Appellant based on his modified convictions.”).

    VACATED and REMANDED with directions.

WETHERELL and OSTERHAUS, JJ., concur; WINOKUR, J., concurs in
result only with opinion.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


WINOKUR, J., concurring in result only.

     Alma Hardy died as a result of Daniel’s car colliding into the
minivan she was driving. Several other persons suffered serious
bodily injury as a result of the collision. The so-called single
homicide rule should not have been implicated in this case at all:
the death of Alma Hardy was sufficient to support Count I
(vehicular homicide), and the serious bodily injury to any or all of
the six other persons was sufficient to support Count II (fleeing or
attempting to elude a law enforcement officer at high speed
causing serious bodily injury or death). There is no dispute that
the collision caused the death of Alma Hardy and the serious injury
to the others. While it is true, as the majority notes, that the jury
instructions on Count II inexplicably indicated only that the
fleeing caused death (omitting serious bodily injury), that
instruction error is harmless beyond a reasonable doubt.
Nonetheless, in spite of the fact that the two counts plainly did not
implicate the single homicide rule because Count II could have
been based on the serious injury to multiple victims (and not the

    4 This does not mean that Appellant’s overall sentence will
change because the trial court is free to reimpose the 25-year
sentence on the vehicular homicide count.

                                 4
death of Ms. Hardy), I find that we are constrained to reverse
Daniel’s conviction under the authority of Lee v. State, 258 So. 3d
1297 (Fla. 2018), which prohibits us from considering the evidence,
the jury instructions, the verdict form, or any matter other than
the charging document alone, in determining whether Daniel
improperly suffered multiple punishments for the same act.

                                  I.

     The State charged Daniel in Count I with vehicular
homicide/leaving the scene of the accident, pursuant to section
782.071(1)(b), Florida Statutes, and identified the deceased victim,
Alma Hardy. In Count II, the State charged Daniel with fleeing or
attempting to elude a law enforcement officer at high speed
causing serious bodily injury or death pursuant to section
316.1935(3)(b), Florida Statutes, and named as victims “ALMA L
HARDY and/or RICHARD LEE HARDY and/or TOMIKI
MONIQUE HARDY and/or LAQUIA ANDRONETTE REDMOND
and/or SONJA DENISE HAYES and/or MARTIN HENDRICKS
and/or RICHARDO HARDY.” The evidence showed that none of
those victims other than Alma Hardy died as a result of Daniel’s
driving, but that all six of them suffered serious bodily injury.

     At the beginning of trial, the trial court informed the jury that
Count II alleged “fleeing or attempting to elude a law enforcement
officer in an agency vehicle with sirens and lights activated at high
speed causing death or serious bodily injury,” and the State’s
opening statement in reference to Count II stated that the crash
“resulted in both death and serious bodily injuries.” The State
presented multiple victims who testified about the serious injuries
they suffered in the crash, which included multiple concussions, a
crushed skull, and scarring; the crash landed one victim in an
intensive care unit for several days.

     After the parties rested, the trial court and parties reviewed
the verdict form and agreed that Count II required a finding of
“serious bodily injury or death.” The trial court proceeded to review
the jury instructions, and Daniel similarly agreed that the jury
would be instructed that Count II required “serious bodily injury
or death.” The State, during closing arguments, referred to Count
II, noting the multiple serious injuries and that Daniel “caused
serious bodily injury or death.” Daniel not once disputed the death
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or serious injuries caused in the crash, arguing only that the
State’s evidence that he was the driver was insufficient.

     The trial court then read the jury instructions, which stated
that Count II required a finding that Daniel’s actions “caused the
death of another person,” for unknown reasons omitting the
“serious bodily injury” language. Daniel stated that he had no
objections to the instructions as read.

     The jury found Daniel guilty as charged on all counts. The jury
foreperson checked next to the following offense in Count II:
“Guilty of Fleeing to Elude a Law Enforcement Officer – Siren and
Lights Activated with High Speed or Reckless Driving Causing
Serious Bodily Injury or Death, as charged.”

     Daniel argued at sentencing that it was impermissible to
sentence him on both Counts I and II under the authority of State
v. Cooper, 634 So. 2d 1074 (Fla. 1994), which applied the single
homicide rule to approve the reversal of convictions for DUI
manslaughter and driving while license suspended and carelessly
or negligently causing death, where there was only a single death.
The premise of Daniel’s argument was that both Count I and II
were based on the death of Alma Hardy. The trial court rejected
Daniel’s argument.

                                 II.

     Vehicular homicide, as its name implies, requires death of a
victim. § 782.071, Fla. Stat. For this reason, Alma Hardy was listed
alone as a victim in Count I. Conversely, the offense of fleeing or
attempting to elude a law enforcement officer at high speed
causing serious bodily injury or death, does not require the death
of victim; serious bodily injury of a victim is sufficient to support
this offense. § 316.1935(3)(b), Fla. Stat. See also Fla. Std. Jury
Instr. (Crim.) 28.8(a). For this reason, all victims were listed in
Count II, including the victims who were seriously injured but not
killed.

                                III.

     Daniel notes that the jury instructions for Count II omitted
the “serious bodily injury” language and only indicated that the

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jury had to find that Daniel’s fleeing an officer “caused the death
of another person.” Daniel argues, and the majority accepts, that
this formulation implicates the single homicide rule because only
one victim died, and her death was an element of Counts I and II.
I disagree. Jury instruction errors are generally subject to
harmless error analysis. Hunter v. State, 8 So. 3d 1052, 1071 (Fla.
2008). In Hunter, the instructions used “and/or” between the
names of the appellant and his co-defendants in each element of
the offenses requiring the appellant’s name. Id. at 1070. He argued
that this erroneous instruction allowed the jury to convict him
“solely upon a finding that a codefendant’s conduct satisfied an
element of the offense.” Id. The supreme court acknowledged the
error, but found it harmless due in part to overwhelming evidence.
Id. at 1070-71; see also Victorino v. State, 23 So. 3d 87, 101 (Fla.
2009) (finding the same error harmless due to other instructions
given, overwhelming evidence of guilt, and the jury’s ability to
understand the verdict); Fleming v. State, 88 So. 3d 288, 289 (Fla.
1st DCA 2012) (holding that absence from the jury instructions of
any question regarding facts that had to be found by the jury
pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), was
harmless in light of the evidence, which showed that the jury
would have found the stated factors if they had been in the
instructions); Lindsay v. State, 1 So. 3d 270 (Fla. 1st DCA 2009),
rev. den’d 6 So. 3d 52 (Fla. 2009) (permitting imposition of a
minimum mandatory sentence even though the court erroneously
failed to give the jury a special interrogatory to decide the question
of actual possession of a firearm because the evidence showed that
no reasonable jury could have found that he did not possess the
firearm); Noel v. State, 125 So. 3d 243 (Fla. 4th DCA 2013)
(affirming conviction in spite of the court’s erroneous failure to
instruct the jury on an essential element of the crime, on the
ground that the instruction error was harmless).

     Similarly, I find it beyond dispute that a rational jury would
have found that Daniel’s fleeing caused serious bodily injury to one
or more of the victims indicated in Count II. The information, the
opening statement, the evidence, the closing arguments, and the
verdict form all indicated that the fleeing caused serious bodily
injury to several victims, and demonstrate that the instruction
error was an oversight. More importantly, Daniel never disputed
that a crash occurred or that several people were seriously injured

                                  7
as a result; he only argued that the State did not adequately show
that he was the driver. For this reason, the failure to include the
serious bodily injury language in the jury instruction was harmless
beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129,
1135 (Fla. 1986). As such, it appears that this case does not
implicate the single homicide rule at all because Count II is
supported by serious injury to several victims, not just the death
of Alma Hardy.

                               IV.

     Even though the evidence in this case is overwhelming that
Count II is supported by the injuries to persons other than Alma
Hardy, this result is foreclosed by the recent decision of Lee v.
State. Lee imposed an extraordinary approach to multiple-
punishment issues that we are obliged to apply here. Under Lee,
in analyzing whether Daniel would improperly suffer multiple
punishments for the same act, the trial court was not to consider
the undisputed evidence of serious injury, nor the fact that Daniel
never disputed that the crash caused serious injury, nor the fact
that the jury found, as shown by the verdict form, that Daniel’s
fleeing caused “Serious Bodily Injury or Death, as charged.”
Instead, the court was required to look past all these matters and
look only to the charging document in determining whether
conviction for Counts I and II constituted multiple punishment.
See Lee, 258 So. 3d at 1304 (holding that, in determining whether
multiple convictions “are based on the same conduct for purposes
of double jeopardy, the reviewing court may consider only the
charging document”). The question in multiple-punishment issues
is no longer whether a defendant received multiple punishment for
the same act, it is whether different acts can necessarily be
discerned from the charging document alone. Regardless of
whether the evidence that Daniel’s fleeing caused serious injury
was overwhelming, regardless of whether the evidence is clear that
Count II did not involve only the death of Alma Hardy, if we look
only at the information, it is “impossible to know,” id., whether
Daniel was convicted only of killing Alma Hardy in two separate
counts. Accordingly, the convictions violate the single homicide
rule. Therefore, Lee compels us to reverse Daniel’s conviction. We
should do so in the manner indicated in the majority opinion.


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                                 V.

     The explicit holding of Lee requires the reviewing court to
consider only the charging document in determining “whether
multiple convictions of solicitation of a minor, unlawful use of a
two-way communications device, and traveling after solicitation of
a minor are based upon the same conduct for purposes of double
jeopardy,” consistent with State v. Shelley, 176 So. 3d 914 (Fla.
2015) (involving “solicitation and traveling after solicitation based
upon the same conduct”). Lee, 258 So. 3d at 1299, 1304. There
appears to be no principled reason not to apply the Lee holding to
any same-conduct multiple-punishment claim. Nonetheless, to be
clear on this matter I believe we should certify a question to the
supreme court asking whether Lee applies to all same-conduct
multiple-punishment claims, or only to the soliciting and traveling
claims indicated in that decision.

                  _____________________________

Jason Cromey of Cromey Law, P.A., Pensacola, for Appellant.

Ashley Moody, Attorney General, and Sharon Traxler, Assistant
Attorney General, Tallahassee, for Appellee.




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