and cross-appeal from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Martin S. Fein, Judge; L.T.
Case No. 14-005874CF10A.
Haughwout, Public Defender, and Logan T. Mohs, Assistant
Public Defender, West Palm Beach, for appellant.
Moody, Attorney General, Tallahassee, and Mitchell A. Egber,
Assistant Attorney General, West Palm Beach, for appellee.
ON MOTION FOR REHEARING AND WRITTEN OPINION
withdraw our prior opinion and substitute the following in
challenges his conviction for reckless driving for which he
was sentenced to three years in prison. He contends that the
trial court erred in denying his motion for judgment of
acquittal, in that his driving speed alone was insufficient
to constitute recklessness. We conclude that appellant's
speed was grossly excessive under the circumstances and
was originally charged with vehicular homicide. At trial, the
State presented the following evidence. A husband, driving
with his wife, was heading west on Sheridan Street in Broward
County on a clear Saturday afternoon. The husband was stopped
to make a left-hand turn across the eastbound lanes of
Sheridan onto 58th Terrace. The husband saw a car in the
distance (heading east on Sheridan) about two football fields
away and believed that he could safely make the left-hand
turn. He started the turn, but he did not complete it because
his van was hit broadside on his wife's side of the
vehicle. The husband did not hear any tires squealing prior
to the accident. His wife was ejected from her seat. The van
rolled on top of her and she died in the crash.
was driving a Corvette eastbound on Sheridan. Multiple
witnesses testified to seeing or hearing, the Corvette
zooming by other vehicles on the road until the Corvette
crashed into the left-turning van. A traffic investigation
determined that appellant was braking for only a very small
amount of time, or not at all, prior to the crash. Another
officer obtained a video from a nearby business which showed
the Corvette speeding past. The officer determined that the
Corvette was going between eighty-two and eighty-five miles
per hour, more than double the forty-mile-per-hour speed
accident reconstruction expert testified from a review of the
Corvette's black box that the Corvette was accelerating
prior to the crash. At five seconds before the crash, it was
travelling at sixty-eight miles per hour. At four seconds
before the crash, the Corvette was travelling at seventy-six
miles per hour, and the throttle was at 100, meaning
appellant's foot was on the gas at that time. At three
seconds before the crash, the Corvette was travelling at
eighty-three miles per hour with his foot still on the
throttle. At two seconds before the crash, the readings
showed that appellant had lifted his foot off the throttle.
The expert concurred with the husband that the Corvette was
two football fields away when the husband started to make the
turn, and it was reasonable for the husband to believe that
he had enough time to make the turn. It was unexpected that
the Corvette would be speeding up.
area of Sheridan Street where the accident occurred was a
mixed neighborhood of residences and business. The street is
three-lanes wide going in both directions, and the speed
limit was forty miles per hour. A bus stop was close by, and
pedestrians were waiting for the bus at the time. Another
witness was pulling into his residential driveway off
presentation of the State's case, appellant moved for a
judgment of acquittal, arguing that in order for the State to
prove reckless driving, it had to show willful and wanton
behavior on appellant's part. Appellant argued that the
State had merely shown that he was speeding and speeding
alone was insufficient to show recklessness. The State, on
the other hand, contended that this was grossly excessive
speed which can constitute reckless conduct. Driving at the
speeds recorded by the Corvette constituted wanton behavior.
There were pedestrians, people at the bus stop, a man pulling
into his driveway, and appellant had a passenger in his car.
All of this taken together showed a willful or wanton
disregard for the safety of others. The trial court denied
testified in his defense, stating that he and his cousin were
traveling east on Sheridan, in the right-hand lane, when he
saw the van making the left-hand turn across Sheridan and
moved to the middle lane to try to avoid the accident. At the
time he saw the van, he said he was sixty or seventy-five
feet away. He attempted to dodge the van, but it kept going
and he hit it. After his testimony, appellant renewed his
motion for judgment of acquittal, which the trial court
denied. The case was submitted to the jury, which returned a
verdict finding appellant guilty of the lesser-included
offense of reckless driving. The court sentenced appellant to
three years in prison. This appeal followed.
contends that the court erred in denying his motion for
judgment of acquittal because the evidence shows only that
appellant was speeding, which is insufficient to prove
recklessness. A de novo standard of review applies when
reviewing a motion for judgment of acquittal. Pagan v.
State, 830 So.2d 792, 803 (Fla. 2002); Santisteban
v. State, 72 So.3d 187, 194 (Fla. 4th DCA 2011).
"In moving for a judgment of acquittal, a defendant
admits the facts in evidence and every conclusion favorable
to the [State] that may be fairly and reasonably inferred
from the evidence." Turner v. State, 29 So.3d
361, 364 (Fla. 4th DCA 2010). A court should grant a motion
for judgment of acquittal only if "the evidence is such
that no view which the jury may lawfully take of it favorable
to the opposite party can be sustained under the law."
Lynch v. State, 293 So.2d 44, 45 (Fla. 1974).
Pozo v. State, 963 So.2d 831 (Fla. 4th DCA 2007), we
noted that in this district, grossly excessive speed alone
can constitute reckless conduct to support a charge of
vehicular homicide. We relied on C ...