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McCullough v. State

Florida Court of Appeals, Second District

November 8, 2017

TIPPY MCCULLOUGH, Appellant,
v.
STATE OF FLORIDA Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         Appeal from the Circuit Court for Manatee County; Deno G. Economou, Judge.

          Howard L. Dimmig, II, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.

          BADALAMENTI, JUDGE.

         Tippy 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.[1]

         McCullough 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).

         Bound 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.

         Double Jeopardy Framework in Florida

         1. Constitutional and Statutory Framework

         The 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))).

         The 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).

         The 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.

         The 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).

         Accordingly, "[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)).

         2. Florida's Single Homicide Rule

         The 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 offense.").[2]

         The 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").

         Since 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 ...


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