Marsh v. State

253 So. 3d 674
CourtDistrict Court of Appeal of Florida
DecidedApril 6, 2018
DocketCase No. 2D16–3542
StatusPublished
Cited by2 cases

This text of 253 So. 3d 674 (Marsh 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
Marsh v. State, 253 So. 3d 674 (Fla. Ct. App. 2018).

Opinion

SILBERMAN, Judge.

Elizabeth Marsh rear-ended another vehicle while under the influence of illegal substances causing serious bodily injury to two of its passengers. As to each passenger she was convicted of driving under the influence (DUI) with serious bodily injury and driving while license suspended (DWLS) with serious bodily injury. We conclude that the dual convictions as to each victim based on the serious bodily injury arising from one act violate the constitutional prohibition against double jeopardy. We therefore affirm the convictions for DUI causing serious bodily injury but reverse the convictions for DWLS causing serious bodily injury and remand with directions to enter convictions for two counts of DWLS.

Marsh entered an open, no contest plea to the above third-degree felony charges and to the second-degree misdemeanor charge of failure to carry adequate liability insurance. The trial court imposed consecutive five-year sentences for each felony count and sentenced Marsh to time-served for the misdemeanor count. Marsh raises two issues on appeal. First, she argues that the trial court erred by failing to award her sufficient jail credit. We find no merit in this argument and reject it without further comment. It is Marsh's second argument concerning double jeopardy that warrants discussion.

*676Preliminarily, we note that Marsh did not waive a double jeopardy challenge by entering a plea because the plea was a general plea, as opposed to a plea bargain. See Novaton v. State, 634 So.2d 607, 609 (Fla. 1994). On the merits, this case is controlled by our decision in Kelly v. State, 987 So.2d 1237, 1238 (Fla. 2d DCA 2008), in which this court addressed a double jeopardy challenge to dual convictions for DUI with serious bodily injury and driving without a valid license with serious bodily injury, both convictions being based on the same injury.

In Kelly, the defendant argued that the convictions were impermissible because they punished the defendant twice for causing injury to a single victim by one act. Id. This court agreed based on the longstanding double jeopardy principle applied in State v. Cooper, 634 So.2d 1074 (Fla. 1994), and State v. Chapman, 625 So.2d 838 (Fla. 1993), precluding dual convictions for the single death of a victim that occurred as a result of one act of operating a vehicle while under the influence. Kelly, 987 So.2d at 1238-39. This court noted that this principle had been applied in Cooper to determine that convictions for both DUI manslaughter and DWLS causing death were impermissible. Kelly, 987 So.2d at 1238 (citing Cooper, 634 So. 2d at 1075).

This court found the Kelly defendant's dual convictions for DUI causing serious bodily injury and driving without a valid license causing serious bodily injury were analogous to those in Cooper in that they imposed two penalties for causing serious injury to a single victim by one act of operating a vehicle while under the influence. Id. at 1239. Thus, the dual convictions violated the defendant's double jeopardy rights. Id.

In this case, the defendant was convicted of DUI causing serious bodily injury and DWLS causing serious bodily injury. As in Kelly, her convictions were enhanced for causing serious injury to a victim as the result of the defendant's single act of operating her vehicle. Thus, Marsh's convictions for both offenses for each victim violate the constitutional prohibition against double jeopardy.

The State asserts that Kelly was erroneously decided because it improperly extended the rule precluding dual punishment for a single homicide to dual punishment for a single injury. In support of its argument, the State relies on the Fifth District's decision in Lott v. State, 74 So.3d 556, 559-60 (Fla. 5th DCA 2011), in which the court determined that convictions for both reckless driving and DWLS that were enhanced for causing serious bodily injury to the same victim did not place the defendant in double jeopardy.

In so doing, the Fifth District rejected the defendant's argument that dual convictions were impermissible under Cooper and Chapman as interpreted in Kelly because they imposed dual penalties for causing serious bodily injury to only one victim during a single act. Lott, 74 So.3d at 559-60. The court found no legal support "to extend the reasoning from Cooper and Chapman, both of which involved a single homicide, to the instant case where a single serious injury occurred." Lott, 74 So.3d at 559.

We remain unconvinced that Kelly was wrongly decided. The rule set forth in Cooper and Chapman is referred to as the "single homicide rule." See McCullough v. State, 230 So.3d 586 (Fla. 2d DCA 2017). The rule, which is based on the premise "that the legislature did not intend to punish a single homicide under two different statutes," applies even in circumstances where the double jeopardy analysis set *677forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), may not grant relief. McCullough, 230 So.3d at 591 (quoting Houser v. State, 474 So.2d 1193, 1197 (Fla. 1985) ).

The single homicide rule was first adopted by the supreme court in Houser

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253 So. 3d 674, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marsh-v-state-fladistctapp-2018.