EUGENE T. SMITH, Appellant,
STATE OF FLORIDA, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Hillsborough County; Vivian T.
L. Dimmig, Jr., Public Defender, and Jamie Spivey, Special
Assistant Public Defender, Bartow, for Appellant.
Jo Bondi, Attorney General, Tallahassee, and Jeffrey H.
Siegal, Assistant Attorney General, Tampa, for Appellee.
Smith appeals his convictions and sentences for refusal to
submit to testing (count three), driving while license
suspended or canceled (count four), and reckless driving with
serious bodily injury (count five). Smith was initially
charged with five total counts; he pleaded guilty to counts
three and four, both first-degree misdemeanors, and proceeded
to a jury trial on the remaining counts, all third-degree
felonies. The jury acquitted him on counts one and two but
convicted him on count five, reckless driving. The court
sentenced Smith to 364 days' jail for counts three and
four and to five years' prison for count five, all to be
served concurrently. We affirm Smith's convictions and
sentences on counts three and four without comment. However,
because the State failed to prove that Smith's operation
of his vehicle was reckless, we reverse his conviction for
reckless driving with serious bodily injury.
trial, the State presented evidence that Smith was driving
northbound in the left lane of U.S. Highway 301, which is a
divided highway with two lanes of travel in each direction.
It was early evening but not yet dark, weather conditions
were clear, and the roadway was straight. Witnesses testified
that Smith was not speeding and that Smith's vehicle had
its headlights on. Smith's vehicle then swerved to the
right, crossing the other northbound lane of travel, driving
up onto the sidewalk, and hitting a bicyclist. The responding
Florida Highway Patrol officer testified that he observed yaw
marks on the roadway, which showed that the vehicle had
turned sharply and slid before leaving the roadway but did
not indicate whether the brakes had been applied prior to
argues on appeal that his motion for judgment of acquittal
should have been granted because the State failed to present
any evidence that he was driving the car in a reckless
manner. He asserts that the undisputed evidence showed that
his vehicle swerved across the road and into the bicyclist
when he lost control as a result of a defective steering
mechanism, not because he was driving erratically or without
regard to the safety of others. We review the denial of a
motion for judgment of acquittal de novo. Beard v.
State, 842 So.2d 174, 176 (Fla. 2d DCA 2003) (citing
Pagan v. State, 830 So.2d 792, 803 (Fla. 2002)).
316.192(1)(a), Florida Statutes (2015), defines reckless
driving as "driv[ing] any vehicle in willful or wanton
disregard for the safety of persons or property." "
'Willful' means intentionally, knowingly[, ] and
purposely, " and " '[w]anton' means with a
conscious and intentional indifference to consequences and
with knowledge that damage is likely to be done to persons or
property." Fla. Std. Jury Instr. (Crim.) § 28.5.
This court has explained that "[m]erely proving careless
driving is insufficient to sustain a conviction [under
section 316.192]." State v. Del Rio, 854 So.2d
692, 693 (Fla. 2d DCA 2003) (citation omitted). "In
determining whether a defendant was driving recklessly, the
essential inquiry is whether the defendant knowingly drove
the vehicle in such a manner and under such conditions as was
likely to cause . . . harm." Stracar v. State,
126 So.3d 379, 381 (Fla. 4th DCA 2013) (quoting
Santisteban v. State, 72 So.3d 187, 195 (Fla. 4th
Stracar, the Fourth District reversed the
defendant's convictions for two counts of vehicular
homicide when the evidence showed that she
was driving a vehicle which left the roadway, traveled [for
over 500 feet at approximately forty miles per hour] along a
sidewalk and a grassy area, crossed a divided roadway and hit
a sign which launched the car over a median of the
intersecting street and land[ed] on the victims['] car
crushing the two occupants.
Id. at 380 (second alteration in original). As in
this case, there was no evidence that the defendant used her
brakes or that there were any curves in the roadway, and
witnesses stated that weather conditions were optimal.
Id. On these facts, the Fourth District concluded
that the State had only shown that the defendant was
negligent, not that she was reckless. Id. at 381.
Florida courts have repeatedly held that evidence that the
defendant merely violated a traffic law, failed to observe
pedestrians, or lost control of a vehicle is insufficient to
support a reckless driving conviction. See, e.g.,
Del Rio, 854 So.2d at 694 (holding that evidence
that the defendant was travelling at the speed limit, had
failed to stop at a T-intersection, and did not see the
pedestrian before hitting her while she attempted to cross
the street with a stroller showed that the defendant was
driving carelessly, not recklessly); Berube v.
State, 6 So.3d 624, 624-25 (Fla. 5th DCA 2008) (holding
that evidence that the defendant was driving on a busy road
on a clear day when he stopped in the center of an
intersection and executed an improper left turn across
oncoming traffic was insufficient to show that the defendant
operated his vehicle in a reckless manner); State v.
Esposito, 642 So.2d 25, 26 (Fla. 4th DCA 1994) (holding
that evidence that the defendant drove a trolley into the
victim at fifteen miles per hour while she was in a crosswalk
on a clear day with no obstructions was "woefully
insufficient to state a prima facie case of reckless
driving"); W.E.B. v. State, 553 So.2d 323,
324-25 (Fla. 1st DCA 1989) (holding that evidence that the
defendant consumed three to five beers before driving home on
a clear night and crossed the center line into oncoming
traffic after overcorrecting for running off the road was
insufficient to prove that the defendant willfully and
wantonly operated his vehicle with disregard for the safety
of persons or property).
case, although the State may have proved that Smith was
careless or negligent, there is no evidence that Smith,
"in an intentional, knowing, and purposeful manner,
" drove his car off the road and onto the sidewalk
"with a conscious and intentional indifference to
consequences and with knowledge that damage [was] likely to
be done to persons or property." See Berube, 6
So.3d at 626. Accordingly, we reverse Smith's conviction
for reckless driving with serious bodily injury. Because