FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Manatee County; Deno G. Economou,
L. Dimmig, II, Public Defender, and Richard J. Sanders,
Assistant Public Defender, Bartow, for Appellant.
Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford
Taylor, Assistant Attorney General, Tampa, for Appellee.
McCullough stole a 2013 Cadillac XTS out of a car wash in
Manatee County. McCullough's theft precipitated a
high-speed police chase, during which she struck-and caused
the death of-a bicyclist. She now appeals her judgment and
sentences after entering an open plea of no contest to
leaving the scene of a crash with death, fleeing or eluding a
law enforcement officer causing serious bodily injury or
death, vehicular homicide, grand theft of a motor vehicle,
resisting an officer without violence, and driving with a
suspended license. See §§ 316.027(2)(c),
.1935(3)(b), 322.34, 782.071(1)(a), 812.014, 843.02, Fla.
Stat. (2015). The trial court sentenced her to imprisonment
for an overall length of thirty years.
challenges her sentences for leaving the scene of a crash
with death, fleeing or eluding a law enforcement officer
causing serious bodily injury or death, and vehicular
homicide ("homicide offenses"). McCullough's
overarching argument on appeal is that the trial court
violated her double jeopardy protections by sentencing her
for all three of the homicide offenses. She contends that she
can be punished for only one of the homicide offenses because
they all related to a single homicide-that of the bicyclist.
McCullough's argument invokes what we will refer to as
the "single homicide rule"-a judicially created
extension of the constitutional and statutory double jeopardy
bar. It provides that although a defendant can be charged and
convicted under multiple criminal statutes for conduct
causing another's death during one criminal episode, that
criminal defendant can only be punished once for that death.
See State v. Cooper, 634 So.2d 1074, 1074-75 (Fla.
1994); Houser v. State, 474 So.2d 1193, 1197 (Fla.
1985); Rodriguez v. State, 875 So.2d 642, 645 (Fla.
2d DCA 2004).
by the supreme court's Cooper decision, we hold
that the trial court erred by sentencing McCullough for
fleeing or eluding causing serious bodily injury or death and
vehicular homicide, in contravention of the single homicide
rule. We thus reverse and remand with instructions for the
trial court to vacate the vehicular homicide conviction and
corresponding fifteen-year sentence. We affirm
McCullough's remaining convictions and sentences.
Jeopardy Framework in Florida
Constitutional and Statutory Framework
Fifth Amendment to the U.S. Constitution and article I,
section 9 of the Florida Constitution both protect
individuals from being twice put in jeopardy for the same
offense. A double jeopardy claim based upon undisputed facts
presents a pure question of law, which we review de novo.
Roughton v. State, 185 So.3d 1207, 1209 (Fla. 2016)
(citing State v. Drawdy, 136 So.3d 1209, 1213 (Fla.
2014)). "The Double Jeopardy Clause presents no
substantive limitation on the legislature's power to
prescribe multiple punishments, but rather, seeks only to
prevent courts either from allowing multiple prosecutions or
from imposing multiple punishments for a single,
legislatively defined offense." Id. (quoting
Borges v. State, 415 So.2d 1265, 1267 (Fla. 1982));
accord Valdes v. State, 3 So.3d 1067, 1076 (Fla.
2009) ("[T]here is no constitutional prohibition against
multiple punishments for different offenses arising out of
the same criminal episode, as long as the Legislature intends
such punishments." (citing Hayes v. State, 803
So.2d 695, 699 (Fla. 2001))).
legislature has codified the double jeopardy bar within
section 775.021(4)(a)-(b), Florida Statutes (2015). Section
775.021(4)(a)-(b) is, at its core, a recitation of the
well-known Blockburger test. See Blockburger v.
United States, 284 U.S. 299, 304 (1932) ("[W]here
the same act or transaction constitutes a violation of two
distinct statutory provisions, the test to be applied . . .
is whether each provision requires proof of a fact which the
other does not."). The Blockburger test is a
rule of statutory construction which "serves as a means
of discerning [legislative] purpose" only where there is
no "clear indication of contrary legislative
intent." Albernaz v. United States, 450 U.S.
333, 340 (1981).
plain and ordinary language of section 775.021(4)
unambiguously states that it is the legislature's intent
"to convict and sentence for each criminal offense
committed in the course of one criminal episode or
transaction and not to allow the principle of lenity . . . to
determine legislative intent." An individual who
"commits an act or acts which constitute one or more
separate criminal offenses, upon conviction and
adjudication of guilt, shall be sentenced separately for each
criminal offense; and the sentencing judge may order the
sentences to be served concurrently or consecutively."
§ 775.021(4)(a) (emphasis added). "[O]ffenses are
separate if each offense requires proof of an element that
the other does not, without regard to the accusatory pleading
or the proof adduced at trial." Id.; see
also Blockburger, 284 U.S. at 304.
legislature has prescribed three, and only three, exceptions
to the statute's aforementioned intent to punish for each
criminal offense in the course of one criminal episode. The
legislature does not intend to allow separate sentencing for
related offenses (1) that "require identical elements of
proof, " (2) that "are degrees of the same offense
as provided by statute, " or (3) that "are lesser
offenses the statutory elements of which are subsumed by the
greater offense." § 775.021(4)(b)(1)-(3).
"[a]bsent a clear statement of legislative intent to
authorize separate punishments for two crimes, courts employ
the Blockburger test, " as set forth in section
775.021(4). Rodriguez, 875 So.2d at 644 (quoting
Gordon v. State, 780 So.2d 17, 19-20 (Fla. 2001)).
Florida's Single Homicide Rule
single homicide rule was birthed from cases where a single
manslaughter caused by an offender's operation of a motor
vehicle was punished by two manslaughter statutes, one of
which simply cross-referenced the other. See Phillips v.
State, 289 So.2d 769, 770-71 (Fla. 2d DCA 1974)
(reversing manslaughter by culpable negligence conviction
because defendant was also convicted and sentenced for
operating a motor vehicle while intoxicated, stating
"[i]n any case, only one judgment and sentence is
appropriate"); Carr v. State, 338 So.2d 267,
267 (Fla. 1st DCA 1976) ("[A]ppellant could be adjudged
guilty of only the one manslaughter which the jury found he
committed by both of the two means specified.");
Stewart v. State, 184 So.2d 489, 491 (Fla. 4th DCA
1966) ("[T]he jury found the defendant guilty in one
count charging manslaughter by culpable negligence and in the
other count charging manslaughter by the operation of a motor
vehicle while intoxicated. The same person was killed as a
result of each criminal act. The information charged only one
supreme court formally adopted the single homicide rule in
its 1985 Houser decision. 474 So.2d at 1197. There,
the defendant was convicted and sentenced for both DWI
manslaughter and vehicular homicide. Id. at 1194.
Applying the Blockburger test, the First District
held that because DWI manslaughter and vehicular homicide
"each requir[e] proof of an element which the other does
not, " punishing Houser for both crimes was permissible.
Id. at 1196. The supreme court disagreed with the
First District's analysis and reversed. The supreme court
reasoned that although it is true the pairing of DWI
manslaughter and vehicular homicide satisfy the
Blockburger test, "Florida courts have
repeatedly recognized that the legislature did not intend to
punish a single homicide under two different statutes."
Id. at 1197. It thus held that double jeopardy
principles bar punishing Houser for both DWI manslaughter and
vehicular manslaughter for causing a single death.
Id. at 1196-97. In so holding, the supreme court
clarified that the single homicide rule applies regardless of
whether two offenses satisfy the Blockburger test.
Id. at 1197; McKay v. State, 925 So.2d
1133, 1134 (Fla. 2d DCA 2006) (remanding to postconviction
court because the single homicide rule was violated, even
though "vehicular homicide and third-degree murder
require different elements of proof").
Florida's statutory codification of the
Blockburger test, courts have repeatedly reaffirmed
the continuing viability of the single homicide rule. See
State v. Chapman, 625 So.2d 838, 839-40 (Fla. 1993)
(explaining that the legislature's codification of the
Blockburger test did not affect its jurisprudence on
the single homicide rule, holding that sentences for both DUI
manslaughter and vehicular homicide violated the single
homicide rule, and determining that section 775.021(4) did
not abrogate Houser); Rodriguez, 875 So.2d
at 645 (explaining that the single homicide "rule
retains viability today"); Ivey v. State, 47
So.3d 908, 911 (Fla. 3d DCA 2010) ("Although the
defendant's criminal charges stem from two ...