Apple v. State
Apple v. State
Opinion of the Court
Walter Apple III appeals the trial court’s denial of his motion for arrest of judgment, his 'conviction and sentence. We reverse.
Apple was charged by Information with DUI manslaughter
In Altamura, the trial court granted the defendant’s motion in arrest of judgment for the same reason complained of here. Id. at 29-30. The Second District Court of Appeal explained that vehicular homicide “may be a category two permissive lesser included offense” of DUI manslaughter “if its elements are both alleged in the accusatory pleading and proven at trial.” Id. at 30 (emphasis added). In order to encompass vehicular homicide in the information, the information must address the “essential allegation that the vehicle was operated ‘in a reckless manner likely to cause the death of, or great bodily harm to, another person.’ ” Id. at 31. In Altamura, the information charging DUI manslaughter did not contain that allegation, thus the trial court correctly granted the defendant’s motion in arrest of judgment. Id.
Like Altamura, the information in the instant case is devoid of the essential allegation that Apple operated his motorcycle in a reckless manner likely to cause the death of, or great bodily harm to, another person.
REVERSED and REMANDED with directions to discharge Apple.
. § 316.193(3)(c)3, Fla. Stat. (1997).
. § 316.193(2)(b), Fla. Stat. (1997).
. § 782.071, Fla. Stat. (1997).
. The state’s contention that Apple waived his objection to the jury instruction on vehicular homicide, upon review of the trial transcript, is without merit.
. The pertinent count reads:
[Walter Apple] did unlawfully drive; or be in actual physical control of a motor vehi-ele, to-wit: 1994 HARLEY DAVIDSON MOTORCYCLE, within this state while under the influence of an alcoholic beverage or any substance controlled under Chapter 893 to the extent HIS normal faculties were impaired or with a blood alcohol level of 0.08 percent or higher, and by reason of such operation caused the death of another human being, to-wit: CONSTANCE HOLLY ELLIOT, in violation of Florida Statute 316.193(1) and 316.193(3)(a)(b)(c)3[.]
Case-law data current through December 31, 2025. Source: CourtListener bulk data.