FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D19-1474
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DEONTAE PALINSKI JOHNSON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Leon County.
James C. Hankinson, Judge.
September 14, 2020
PER CURIAM.
Deontae Palinski Johnson appeals multiple convictions,
arguing that under Double Jeopardy principles he cannot be
convicted of multiple counts of leaving the scene of a crash
stemming from a single crash. We agree and reverse.
Johnson was driving and had a passenger with him, Christian
Debique. Johnson hit another vehicle, killing the driver, Tryriq
Roberts. The collision caused the second vehicle to collide with a
third vehicle. There were two people in the third vehicle, Breanna
Cotton and Kristal Haynes. Debique, Cotton, and Haynes were all
injured. Johnson left the scene of the crash without attempting to
assist any of the four victims.
The State charged Johnson with one count of vehicular
homicide, one count of leaving the scene of a crash involving death,
three counts of leaving the scene of a crash involving injury, and
one count of driving with a suspended or revoked license. Prior to
trial, the State dropped the driving with a suspended or revoked
license charge.
The jury convicted Johnson of all five of the remaining counts.
At sentencing, the trial court dismissed one conviction of leaving
the scene involving injury, reasoning that the unit of prosecution
was each vehicle involved, not each person. Johnson was sentenced
on the three remaining convictions for leaving the scene: one
conviction of leaving the scene of a crash involving death; and two
convictions of leaving the scene of a crash involving injury.
Johnson appealed his convictions.
Johnson’s claim of a double jeopardy violation was not
preserved. However, a double jeopardy violation constitutes
fundamental error, which can be raised for the first time on appeal.
Shipman v. State,
171 So. 3d 199, 200 (Fla. 1st DCA 2015)
(“[B]ecause [a] double jeopardy violation constitutes fundamental
error, it may be addressed for the first time in a direct appeal.”).
This Court has held that leaving the scene of a crash, even one
resulting in death to one victim and injury to others, permits only
a single conviction. See Peer v. State,
983 So. 2d 34, 34-35 (Fla. 1st
DCA 2008). See also Hardy v. State,
705 So. 2d 979, 981 (Fla. 4th
DCA 1998) (holding that convictions for leaving the scene of a
crash involving death and leaving the scene of a crash involving
personal injury constituted a single episode of leaving the scene—
even though the single crash involved multiple cars and victims);
Hoag v. State,
511 So. 2d 401, 402 (Fla. 5th DCA 1987) (“[T]he
failure of [the defendant] to stop at the scene of his accident
constituted but one offense although that accident resulted in
injuries to four persons and the death of a fifth.”). This rule applies
here.
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Johnson’s convictions for leaving the scene in which injury
resulted is a lesser offense of leaving the scene in which death
resulted. Thus, “[t]he proper remedy is to vacate the conviction[s]
for the lesser offense[s] while affirming the conviction for the
greater one.”
Hardy, 705 So. 2d at 981 (citing Williams v.
Singletary,
78 F.3d 1510, 1516 (11th Cir. 1996)). Here, the greater
conviction is for leaving the scene of a crash in which death results.
Therefore, the single conviction under section 316.027(2)(c) must
stand, while the two convictions based on section 316.027(2)(a)
must be vacated.
We VACATE the two convictions for leaving the scene of a crash
resulting in injury; AFFIRM the conviction for leaving the scene of
crash in which death results; and REMAND for resentencing.
LEWIS and M.K. THOMAS, JJ., concur; WINOKUR, J., concurs with
opinion.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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WINOKUR, J., concurring.
I agree that this Court’s precedent requires us to vacate
Johnson’s convictions. However, it appears to me that neither this
Court in Peer v. State,
983 So. 2d 34 (Fla. 1st DCA 2008), nor the
courts in Hardy v. State,
705 So. 2d 979 (Fla. 4th DCA 1998) or
Hoag v. State,
511 So. 2d 401 (Fla. 5th DCA 1987), considered the
effect of section 316.062 in their analyses of whether leaving the
scene permits multiple punishments based on multiple victims. I
submit that section 316.062 shows that the Legislature intended
to permit separate punishments of leaving the scene of a crash for
each victim of the crash.
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Section 316.027(2)(a), Florida Statutes, states:
The driver of a vehicle involved in a crash occurring
on public or private property which results in injury to a
person other than serious bodily injury shall immediately
stop the vehicle at the scene of the crash, or as close
thereto as possible, and shall remain at the scene of the
crash until he or she has fulfilled the requirements of s.
316.062.
(emphasis added). Section 316.027(2)(c), is substantially identical
to section 316.027(2)(a)—except that paragraph (2)(c) applies
when a person in the accident is killed rather than injured.
Sections 316.027(2)(a) and (c) require the driver of a vehicle
involved in a crash to “remain at the scene of the crash until he or
she has fulfilled the requirements of s. 316.062.” Section
316.062(1), Florida Statutes, requires the following:
The driver of any vehicle involved in a crash resulting
in injury to or death of any person or damage to any
vehicle or other property which is driven or attended by
any person shall give his or her name, address, and the
registration number of the vehicle he or she is driving, and
shall upon request and if available exhibit his or her
license or permit to drive, to any person injured in such
crash or to the driver or occupant of or person attending
any vehicle or other property damaged in the crash and
shall give such information and, upon request, exhibit
such license or permit to any police officer at the scene of
the crash or who is investigating the crash and shall
render to any person injured in the crash reasonable
assistance, including the carrying, or the making of
arrangements for the carrying, of such person to a
physician, surgeon, or hospital for medical or surgical
treatment if it is apparent that treatment is necessary, or
if such carrying is requested by the injured person.
(emphasis added). In short, section 316.062(1) shows that a driver
in a crash has an obligation to each person in the crash. As such, a
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driver who leaves the scene of a crash has abandoned his or her
obligation to each person involved in the crash.
“[T]here is no constitutional prohibition against multiple
punishments for different offenses arising out of the same criminal
transaction as long as the Legislature intends to authorize
separate punishments.” Valdes v. State,
3 So. 3d 1067, 1069
(Fla. 2009). The cases cited by the majority find that the
Legislature did not intend to authorize separate punishments for
each victim of the crime of leaving the scene when there is “but one
scene of the accident and one failure to stop.”
Hoag, 511 So. 2d at
402. I see no such legislative intent. Instead, I see a statute that
criminalizes behavior specific to each victim of a crash.
It should also be noted that the Florida Supreme Court has
stated, “[o]ne of the main purposes of [section 316.027(2)] is to
ensure that accident victims receive medical assistance as soon as
possible.” State v. Dumas,
700 So. 2d 1223, 1225 (Fla. 1997) (citing
Herring v. State,
435 So. 2d 865, 866 (Fla. 3d DCA 1983)). In my
view, this statement recognizes that the statute is directed at
individual victims, not at the mere act of leaving the scene.
Writing on a clean slate, I would hold that section 316.027(2)
permits separate punishments for each victim when a driver
leaves the scene of a crash. However, based on established
precedent, I agree that we are obligated to reverse.
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Andy Thomas, Public Defender, Katherine Turner, Assistant
Public Defender, Kathryn Lane, Assistant Public Defender, and
Steven Seliger, Assistant Public Defender, Tallahassee, for
Appellant.
Ashley Moody, Attorney General, and Damaris E. Reynolds,
Assistant Attorney General, Tallahassee, for Appellee.
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