Lodson v. State

District Court of Appeal of Florida

Lodson v. State

478 So. 2d 477, 10 Fla. L. Weekly 2549, 1985 Fla. App. LEXIS 16765

CourtDistrict Court of Appeal of Florida

DecidedNovember 13, 1985

DocketNo. 85-351

StatusPublished

Cited by1 cases

This text of 478 So. 2d 477 (Lodson v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lodson v. State, 478 So. 2d 477, 10 Fla. L. Weekly 2549, 1985 Fla. App. LEXIS 16765 (Fla. Ct. App. 1985).

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Opinion

SCHEB, Judge.

The state charged appellant Frederick W. Lodson with D.U.I. manslaughter. He pled not guilty and a jury found him guilty of vehicular homicide. Lodson unsuccessfully challenged that verdict by a motion for arrest of judgment. He contended that vehicular homicide was not a lesser included offense of the crime for which he was prosecuted. On March 2, 1983, the trial court sentenced him to three years imprisonment. He appealed to this court, but [478]*478after the public defender filed an Anders brief,¹ Lodson voluntarily dismissed his appeal.

On October 5, 1984, Lodson filed an amended motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. On this appeal, he challenges the trial court’s denial of that motion.

We find no merit to Lodson’s challenge. We write, however, to comment on his contention that he is entitled to postconviction relief. Lodson correctly points out that, after he was sentenced, this court held in Mastro v. State, 448 So.2d 626 (Fla. 2d DCA 1984), that vehicular homicide is not a lesser included offense of D.W.I. manslaughter. But see Spillane v. State, 458 So.2d 838 (Fla. 4th DCA 1984); cf. Higdon v. State, 465 So.2d 1309 (Fla. 5th DCA 1985).

Although appellant correctly recites this court’s holding in Mastro, a change of law must be announced or adopted by the United States Supreme Court or the Supreme Court of Florida before that change can be considered as a basis for postconviction relief. Witt v. State, 465 So.2d 510 (Fla.1985).

Affirmed.

GRIMES, A.C.J., and LEHAN, J., concur.

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SCHEB, Judge.

The state charged appellant Frederick W. Lodson with D.U.I. manslaughter. He pled not guilty and a jury found him guilty of vehicular homicide. Lodson unsuccessfully challenged that verdict by a motion for arrest of judgment. He contended that vehicular homicide was not a lesser included offense of the crime for which he was prosecuted. On March 2, 1983, the trial court sentenced him to three years imprisonment. He appealed to this court, but [478]*478after the public defender filed an Anders brief,¹ Lodson voluntarily dismissed his appeal.

On October 5, 1984, Lodson filed an amended motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. On this appeal, he challenges the trial court’s denial of that motion.

We find no merit to Lodson’s challenge. We write, however, to comment on his contention that he is entitled to postconviction relief. Lodson correctly points out that, after he was sentenced, this court held in Mastro v. State, 448 So.2d 626 (Fla. 2d DCA 1984), that vehicular homicide is not a lesser included offense of D.W.I. manslaughter. But see Spillane v. State, 458 So.2d 838 (Fla. 4th DCA 1984); cf. Higdon v. State, 465 So.2d 1309 (Fla. 5th DCA 1985).

Although appellant correctly recites this court’s holding in Mastro, a change of law must be announced or adopted by the United States Supreme Court or the Supreme Court of Florida before that change can be considered as a basis for postconviction relief. Witt v. State, 465 So.2d 510 (Fla.1985).

Affirmed.

GRIMES, A.C.J., and LEHAN, J., concur.

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Bluebook (online)

478 So. 2d 477, 10 Fla. L. Weekly 2549, 1985 Fla. App. LEXIS 16765, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lodson-v-state-fladistctapp-1985.

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