Florida District Courts of Appeal, 1989

State v. Armstrong

Florida District Courts of Appeal · Decided August 31, 1989 · Cobb, Cowart, Goshorn

547 So. 2d 1293; 14 Fla. L. Weekly 2047; 1989 Fla. App. LEXIS 4851; 1989 WL 99697 (Southern Reporter, Second Series)

Opinion of the Court

COWART, Judge.

The defendant’s conviction and sentence for both DUI manslaughter,1 a second degree felony, and vehicular homicide,2 a third degree felony, for causing a single death, violated the defendant’s constitutional double jeopardy rights3 and constitutes fundamental error.4 Therefore, the judgment of conviction for vehicular homicide5 is reversed and the cause remanded for resentencing based on a corrected guidelines scoresheet.6 We uphold the defendant’s conviction for DUI manslaughter against the defendant’s contentions on appeal relating to the admissibility and sufficiency of evidence.

AFFIRMED in part; REVERSED in part; and REMANDED.

*1294GOSHORN, J., concurs. COBB, J., concurs specially with opinion.

. Section 316.1931(2)(c), Florida Statutes (1985).

. Section 782.071(1), Florida Statutes.

. Houser v. State, 474 So.2d 1193 (Fla. 1985); Hoag v. State, 511 So.2d 401 (Fla. 5th DCA 1987), rev. denied, 518 So.2d 1278 (Fla. 1987); Vela v. State, 450 So.2d 305 (Fla. 5th DCA 1984); Barnes v. State, 528 So.2d 69 (Fla. 4th DCA 1988).

. State v. Johnson, 483 So.2d 420 (Fla. 1986).

. See State v. Barton, 523 So.2d 152 (Fla. 1988).

.The scoresheet upon which the defendant was sentenced scored the vehicular homicide conviction which we are reversing. The defendant's present sentence was subject to reversible error because the trial court improperly departed downward from the recommended guidelines scoresheet without providing written reasons for the departure. We note that the verbal reasons casually expressed by the trial court at the time of sentencing are insufficient.

Concurring Opinion

COBB, Judge,

concurring specially.

The information charging Armstrong with both DUI manslaughter and vehicular homicide alleged that the single homicide occurred on September 27, 1986. Since the crime occurred prior to July 1, 1988, the effective date of the 1988 amendment of section 775.021(4)1 that amendment does not apply to this case. Therefore, we must apply the mode of analysis set out in Carawan v. State, 515 So.2d 161 (Fla. 1987). See State v. Smith, 547 So.2d 613 (Fla. 1989).

Pursuant to a Carawan analysis, DUI manslaughter and vehicular homicide convictions cannot both be sustained by one homicide. See Houser v. State, 474 So.2d 1193 (Fla. 1985). Under a Blockburger2 analysis, as required by section 775.-021(4), Florida Statutes (Supp. 1988), the DUI manslaughter and vehicular homicide are separate criminal offenses, each requiring proof of an element that the other does not. See Higdon v. State, 490 So.2d 1252 (Fla. 1986). The former requires intoxication, the latter reckless operation of a motor vehicle. This differentiation between the two offenses has survived the 1986 amendment to the manslaughter by intoxication statute, which added the factor of causation. See Ch. 86-296, Laws of Florida and Magaw v. State, 537 So.2d 564 (Fla. 1989).

Had the instant offense occurred subsequent to July 1, 1988, the analysis could no longer focus on double jeopardy; however, it would seem that a defendant convicted of two homicides for one unintended traffic death could present a formidable equal protection argument. Since the instant death preceded July 1, 1988, I concur with the majority opinion.

. See Ch. 88-131, § 7, Laws of Florida.

. See Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

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