        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                             OBRIAN OAKLEY,
                                Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                              No. 4D15-4359

                             [February 7, 2018]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Jeffrey R. Levenson, Judge; L.T. Case No.
12011456CF10A.

   Jason B. Blank of Haber Blank, LLP, Fort Lauderdale, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers,
Assistant Attorney General, West Palm Beach, for appellee.

FORST, J.

    After a series of burglaries, a high-speed chase, and a fatal car accident
killing two bicyclists, Appellant Obrian Oakley was charged with two
counts of first degree felony murder; two counts of vehicular
homicide/failure to render aid; and five counts of burglary of a conveyance.
Appellant was found guilty on all charges. On appeal, Appellant argues
that the trial court abused its discretion by admitting certain photographic
evidence. He also contends that it was error to sentence him on all four
homicide counts when there were two, not four, deaths. As to Appellant’s
first point, we disagree and find no abuse of the trial court’s discretion.
We agree with Appellant’s second point and write to address only this
issue. Because we reverse the lesser vehicular homicide convictions, we
need not address Appellant’s remaining arguments challenging his
vehicular homicide convictions.

                                Background

   Appellant and his accomplice burglarized several unlocked vehicles
within a neighborhood. Their scheme had the accomplice looking for
unlocked cars and removing any valuables inside, while Appellant waited
in a silver Infiniti, watching the accomplice go from car to car, occasionally
returning with stolen items. A neighborhood resident pulled into his cul-
de-sac and saw a silver Infiniti slowly pass by him. The resident saw the
accomplice walk toward a parked car in the resident’s driveway, enter it,
and sort through the items within. The resident called the police, who
arrived and arrested the accomplice.

    During the arrest, the resident saw the silver Infiniti that he had earlier
noticed drive away from the cul-de-sac and pointed out the car to the police
officers. The police gave chase to the silver Infiniti being driven by
Appellant. At the same time, four friends were riding their road bicycles,
as they did every Sunday morning. As the high-speed chase entered an
intersection, Appellant struck two of the bicyclists, killing them instantly.
A K-9 officer responded to the crash to track Appellant, who was not found
in the car, but was found nearby a few hours later and arrested.

                                  Analysis

   For the deaths of the two bicyclists, Appellant was charged and
convicted of two counts of first-degree felony murder, as well as two counts
of vehicular homicide/failure to render aid. Appellant argues on appeal
that Florida law prevents two homicide convictions arising from one death
and therefore, it was error to sentence him on all four homicide counts
when there were two, not four, deaths. Because the issue requires only a
legal determination based on undisputed facts, our standard of review is
de novo. See Trotter v. State, 825 So. 2d 362, 365 (Fla. 2002).

   In Houser v. State, 474 So. 2d 1193 (Fla. 1985), the Florida Supreme
Court examined the certified question of whether a defendant may be
sentenced for both DWI manslaughter and vehicular homicide for a single
death. Id. at 1194. The Supreme Court answered in the negative, and
found that even though they were Blockburger 1 separate offenses, the
legislature did not intend to punish a single homicide under two separate
statutes. Id. at 1196-97. The Court held that “only one homicide
conviction and sentence may be imposed for a single death.” Id. at 1196.

   Florida courts have consistently applied the Houser rule in cases
involving more than one homicide conviction for a single death in the
absence of legislative language to the contrary. See Goodman v. State, 229

1 Blockburger v. United States, 284 U.S. 299 (1932). The Blockburger test is
codified in section 775.021, Florida Statutes (2012), to determine whether
separate offenses exist.

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So. 3d 366, 382 (Fla. 4th DCA 2017) (“A conviction for DUI manslaughter
and for vehicular homicide involving a single victim violates double
jeopardy.”); Wilkes v. State, 123 So. 3d 632, 635 (Fla. 4th DCA 2013)
(holding the Houser rule “also extends to convictions for attempted murder
and attempted felony murder from the same attempted killing”); State v.
Merriex, 42 So. 3d 934, 936 (Fla. 2d DCA 2010) (“[The defendant’s]
conviction of third-degree felony murder bars a vehicular homicide
conviction for the same death.”); Rodriguez v. State, 875 So. 2d 642, 645
(Fla. 2d DCA 2004) (“For the one death he caused, [the defendant] received
sentences for both DUI manslaughter and third-degree murder. These two
sentences for homicide counts cannot stand . . . .”); Collins v. State, 605
So. 2d 568, 569 (Fla. 5th DCA 1992) (“Even though they are separate
crimes, the courts have held that a person cannot be convicted of
DUI/Manslaughter and vehicular homicide for the same death.”); Jones v.
State, 502 So. 2d 1375, 1377 (Fla. 4th DCA 1987) (agreeing that the
defendant “may not be convicted of both third degree murder and
manslaughter for the same death”).

    The State cites to Valdes v. State, 3 So. 3d 1067 (Fla. 2009), to argue
that the two crimes at issue are substantially different and as such, the
protections against double jeopardy are not violated. In Valdes, the
defendant fired a gun multiple times and was charged with multiple counts
for the firing of that weapon, none of which resulted in death. Id. at 1077.
The Florida Supreme Court found that the Double Jeopardy Clause was
not violated because the defendant’s conviction for discharging a firearm
from a vehicle within one thousand feet of a person and his conviction for
shooting into an occupied vehicle were not varying degrees of the same
crime, nor was one an aggravated form of the other, no matter that both
crimes arose from the same factual situation. Id. Here, however, the
convictions of murder and vehicular homicide are varying degrees of the
same crime. Moreover, cases involving homicide are distinguishable from
Valdes because the Legislature never intended to allow for multiple
homicide convictions arising from one death. See Ivey v. State, 47 So. 3d
908, 911 (Fla. 3d DCA 2010) (“Valdes did not overrule the well-settled
principle that a single death cannot give rise to dual homicide
convictions.”); see also Jones, 502 So. 2d at 1377 (“There is no need in this
case to engage in an extensive discussion of double jeopardy and the
applicability of the test in Blockburger . . . because in Florida the legislature
did not intend to punish the one death by multiple convictions under
different statutes.”).

   In this case it is uncontested that the two victims were killed by
Appellant’s actions and that for each death, Appellant was convicted of
one count of first degree felony murder and one count of vehicular

                                       3
homicide. The Houser rule—“only one homicide conviction and sentence
may be imposed for a single death”—instructs that Appellant’s dual
homicide charges for a single victim was in error.

                                Conclusion

    To correct the error, courts reverse the lesser offense conviction and
affirm the greater. See Pizzo v. State, 945 So. 2d 1203, 1206 (Fla. 2006)
(citing State v. Barton, 523 So. 2d 152, 153 (Fla. 1988)). We therefore
reverse Appellant’s convictions and sentences for both vehicular
homicide/failure to render aid charges and affirm each first degree felony
murder conviction and sentence, per the Houser rule.

   Affirmed in part, Reversed in part.

TAYLOR and KLINGENSMITH, JJ., concur.

                            *        *       *

   Not final until disposition of timely filed motion for rehearing.




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