Florida Criminal Law Opinions

In any event, there was no error in appellant’s habitual felony offender

imprisonment as an HFO for those offenses. Armed robbery and armed burglary are first-degree felonies punishable by life, not life felonies. See §§ 812.13(2)(a), 810.02(2)(b), Fla. Stat. (1996); see also Franke v. State, 997 So. 2d 424, 425-26 (Fla. 2d DCA 2008) (holding that armed robbery and armed burglary cannot be reclassified to life felonies under section 775.087(1), Florida Statutes, because the use of a weapon or firearm is an essential element of each offense). First-degree felonies punishable by a term of years not exceeding life imprisonment are subject to enhancement under the habitual offender statute. See Burdick v. State, 594 So. 2d 267, 271 (Fla. 1992) (holding that a first-degree felony punishable by life was subject to an enhanced sentence pursuant to the provisions of the habitual felony offender statute, which at the time provided for sentence enhancement for first-degree felonies but not life felonies).

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

WALTER CLARK,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-1034

[January 26, 2011]

PER CURIAM.

We affirm the trial court’s order denying appellant’s motion to correct illegal sentence. Appellant claimed that his prior offenses for which the court withheld adjudication of guilt and placed him on probation do not qualify as predicate offenses for habitual felony offender (HFO) sentencing. Appellant is wrong. At the time appellant committed the offense for which he received the HFO sentence, the relevant section of the HFO statute provided: “For the purposes of this section, the placing of a person on probation or community control without an adjudication of guilt shall be treated as a prior conviction.” § 775.084(2), Fla. Stat. (2000); see alsoch. 99-188, § 3, Laws of Fla. (effective July 1, 1999).

Affirmed.

DAMOORGIAN, CIKLIN and LEVINE, JJ., concur.

Appeal of order denying rule 3.800 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Bernard I. Bober, Judge; L.T. Case No. 01-2849 CF10A.

Walter Clark, Florida City, pro se.

No appearance required for appellee.

Not final until disposition of timely filed motion for rehearing.

Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Respondents.

PER CURIAM.

Contending that they were unlawfully ordered to secure detention pending their adjudicatory hearings in juvenile delinquency matters, K.N.W. and A.F.R. separately petitioned for habeas corpus relief. We earlier denied their petitions by unpublished order, and now consolidate their cases for purposes of this opinion explaining the basis for our rulings.

After being arrested, petitioners appeared before the circuit court for detention hearings. Detention risk assessment instruments were prepared for each, but neither reached the 12-point threshold necessary to qualify for secure detention. The circuit court nonetheless ordered that both petitioners be held in secure detention, briefly stating on the record its reasons for doing so. In each case, defense counsel “object[ed] for the record,” but did not state any specific objection to the circuit court’s ruling. Petitioners then sought relief from this court, arguing that their detention was illegal because the circuit court failed to comply with section 985.255(3)(b), which requires the court to “state, in writing, clear and convincing reasons” for ordering a detention placement more restrictive than that indicated by the risk assessment instrument. Both petitioners further argued that

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even if the reasons orally pronounced had been reduced to writing, they were insufficient to justify secure detention.

In T.L.W. v. Soud, 645 So. 2d 1101 (Fla. 1st DCA 1994), we announced that before seeking relief in this court by petition for writ of habeas corpus, a juvenile challenging his or her secure detention is required to first present arguments in favor of release to the trial court. We explained that doing so serves the dual purpose of permitting the trial court to first consider the claims for relief while also providing this court with a record of the parties’ arguments and the trial court’s disposition thereof. We further noted that although the rush of trial court proceedings may preclude counsel from adequately articulating arguments of this nature during the detention hearing, Florida Rule of Juvenile Procedure 8.130 authorizes further trial court consideration through a motion for rehearing, and we expressly approved the use of such a motion to permit the trial court to first consider a claim that secure detention is contrary to law.

In these cases, defense counsel’s general objections did not alert the trial court to the need for written departure orders, and the absence of such orders is clearly a matter that could have been remedied through either a timely objection or a motion for rehearing. Likewise, the objections interposed by counsel did not articulate any argument supporting the conclusion that the orally pronounced reasons of the trial court, even if reduced to writing, were insufficient to justify

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secure detention. The absence of specific objections of this sort deprived the trial court of the opportunity to correct any error or procedural deficiency, and as well prevented the creation of an adequate record for this court’s review.

Accordingly, we take this opportunity to reiterate and reinforce the exhaustion requirement recognized in T.L.W. We deem it appropriate to add that although T.L.W. imposes this requirement on counsel for the juvenile as a precondition to seeking habeas relief in this court, counsel for the state also has a duty to ensure that detention decisions comport with the law. As this court and others have repeatedly observed, the power to order detention for those charged with or found to have committed a delinquent act is entirely statutory in nature, and strict compliance with the applicable statutes is therefore required. See, e.g., W.C. v. Smith, 898 So. 2d 1137 (Fla. 1st DCA 2005). The obligation to ensure that this power is properly exercised rests with the trial court, but as officers of the court, counsel for both parties have a duty, where warranted, to call the trial court’s attention to the requirements of the statutes governing juvenile detention.

WOLF, KAHN, and THOMAS, JJ., CONCUR.

Petition for Writ of Habeas Corpus — Original Jurisdiction.

Shernerd Richardson, pro se, for Petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.

PER CURIAM.

The petition for writ of habeas corpus is dismissed. See Baker v. State, 878

So. 2d 1236 (Fla. 2004).

Because this petition for writ of habeas corpus was the 13th original writ filed in this court since 2005 to challenge his conviction, petitioner was directed to show cause why sanctions should not be imposed against him, including a prohibition against any future appeals or petitions challenging the judgment and sentence, unless petitioner is represented by an attorney in good standing with The Florida Bar. See State v. Spencer, 751 So. 2d 47, 48 (Fla. 1999). Petitioner has failed to file a response.

As such, because it is apparent that petitioner’s continued and repeated attacks on his conviction and sentence have become an abuse of the legal process, we hold that he is barred from future pro se filings in this court concerning Levy County Circuit Court Case number 38-2005-CF-00252. The Clerk of the Court is directed not to accept any future filings concerning this case unless they are signed by a member in good standing of The Florida Bar.

Petitioner is warned that any filings which violate the terms of this opinion may result in a referral to the appropriate institution for disciplinary procedures as provided in section 944.279, Florida Statutes (2010) (providing that a prisoner who is found by a court to have brought a frivolous suit, action, claim, proceeding, or appeal is subject to disciplinary procedures pursuant to the rules of the Department

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of Corrections). Fla. R. App. P. 9.410.

BENTON, C.J., KAHN and WETHERELL, JJ., CONCUR.

Petition for Writ of Habeas Corpus — Original Jurisdiction.

Sidney Marts, pro se, Petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.

PER CURIAM.

The petition for writ of habeas corpus is dismissed. See Baker v. State, 878

So. 2d 1236 (Fla. 2004) (reiterating that habeas corpus cannot be used to litigate

issues that could have been or were raised on direct appeal or in postconviction

motions).

Additionally, due to petitioner’s abuse of the legal process by his repeated pro se filings attacking his conviction and sentence, this court ordered petitioner to show cause why he should not be prohibited from future pro se filings. State v. Spencer, 751 So. 2d 47, 48 (Fla. 1999) (requiring that courts “first provide notice and an opportunity to respond before preventing [a] litigant from bringing further attacks on his conviction and sentence.”). Petitioner’s response to the show cause order does not provide a legal basis to prohibit the imposition of sanctions.

As such, because it is apparent that petitioner’s continued and repeated attacks on his conviction and sentence have become an abuse of the legal process, we hold that he is barred from future pro se filings in this court concerning Escambia County Circuit Court case number 2007-CF-6067. The Clerk of the Court is directed not to accept any future filings concerning this case unless they are signed by a member in good standing of The Florida Bar.

Petitioner is warned that any future filings which violate the terms of this opinion may result in a referral to the appropriate institution for disciplinary procedures as provided in section 944.279, Florida Statutes (2010) (providing that a prisoner who is found by a court to have brought a frivolous suit, action, claim, proceeding or appeal is subject to disciplinary procedures pursuant to the rules of

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the Department of Corrections). Fla. R. App. P. 9.410.

BENTON, C.J., KAHN and WETHERELL, JJ., CONCUR.

An appeal from the Circuit Court for Union County.

Acting Circuit Judge David L. Reiman.

Jeffrey E. Lewis, Criminal Conflict & Civil Regional Counsel, and Salvatore D. Mollica, Assistant Regional Counsel, Starke, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Appellant’s “Motion for Delayed Appeal” has been treated by the court as a

response to our order to show cause questioning the timeliness of the notice of

appeal. Inasmuch as the response fails to demonstrate that the notice of appeal was

timely filed, we dismiss the appeal for lack of jurisdiction. However, in light of the allegation that appellant timely made his desire for an appeal known to counsel and fault for the unexplained delay in filing of the notice of appeal cannot be attributed to appellant himself, this disposition is without prejudice to the filing of a properly sworn petition seeking belated appeal complying with the provisions of Florida Rule of Appellate Procedure 9.141(c).

VAN NORTWICK, LEWIS, and ROBERTS, JJ., CONCUR.

An appeal from the Circuit Court for Santa Rosa County.

Thomas R. Santurri, Judge.

Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.

VAN NORTWICK, J.

Bryan Hill appeals the trial court’s denial of a motion to suppress evidence

seized from his vehicle after he was stopped by a police officer. Because the

evidence adduced below was insufficient to establish a lawful basis for the stop,

we reverse.

Based on evidence introduced at the suppression hearing, on September 17, 2009, Sergeant Bringmans was traveling through Midway, Florida, an area which had recently been the site of several burglaries and reports of suspicious activities. According to Bringmans’ testimony at the hearing, however, no burglaries or suspicious activities were reported on the night in question. Bringmans testified that, while driving, he observed appellant standing in front of a parked car in the vacant parking lot of a closed Pure Gas Station at 1:15 a.m. Bringmans stated that the appellant “looked right at me went to his driver’s door, got in and took off. . . .” Bringmans made a U-turn to investigate when the appellant entered his car and departed from the lot.

Bringmans followed the appellant’s car for “about a mile and a half” while running a tag check. Bringmans testified that while following the appellant’s car he did not notice anything unusual about the vehicle or about the way in which the appellant was driving it. Bringmans further testified that he decided to stop appellant because the Pure Gas Station had been closed over two hours before he observed the appellant’s car parked in the lot, because the Pure Station was located in a high crime area, and because appellant entered his car and departed from the Pure Station upon making eye contact with Bringmans. After stopping the appellant’s car, Bringmans requested backup from a nearby canine unit and sent another officer to check the Pure Station and determine whether any “damage or

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criminal mischief” had taken place. The canine unit obtained a positive alert. The subsequent search of the car disclosed marijuana and a loaded firearm. Appellant was arrested and later charged by information with carrying a concealed firearm and possession of cannabis (less than 20 grams). Appellant moved to suppress the fruits of the search.

Following a suppression hearing, the trial court held that, given the totality of the matters testified to by Sergeant Bringmans, a reasonable suspicion existed to stop the appellant’s vehicle. The trial court therefore denied the appellant’s motion to suppress. Thereafter, appellant entered a plea of nolo contendere reserving the right to appeal the denial of suppression.

“The trial court’s ruling on a motion to suppress is a mixed question of law and fact.” Brye v. State, 927 So. 2d 78, 80 (Fla. 1st DCA 2006). An appellate court must “review the trial court’s ruling denying a motion to suppress to determine whether competent, substantial evidence supports the factual findings.” Panter v. State, 8 So.3d 1262, 1265 (Fla. 1st DCA 2009) (citing Huffman v. State, 937 So.2d 202, 205 (Fla. 1st DCA 2006)). However, “whether a reasonable suspicion exists under a given set of facts is a question of law reviewable by the de novo standard.”Beahan v. State, 41 So.3d 1000, 1002 (Fla. 1st DCA 2010) (citing Ikner v. State, 756 So.2d 1116 (Fla. 1st DCA 2000)).

Here, Sergeant Bringmans did not observe any criminal activity. Following 3

the stop, the officer asked one officer to look for evidence of mischief at the gas station, while at the same time seeking the assistance of a canine unit for drug detection. While the officer testified at the suppression hearing that he suspected that “[m]aybe the back of the store had been burglarized” or “[m]aybe vandalism in the parking lot or to the building” had occurred, it is apparent that the officer did not have knowledge of any facts relating to a specific criminal offense, a fact which is underscored by the use of the canine unit. Even when construed in a light most favorable to the State, the circumstance identified by the officer as prompting the stop was insufficient to establish a reasonable suspicion. See L.N.D. v. State, 884 So. 2d 515 (Fla. 2d DCA 2004); Errickson v. State, 855 So. 2d 700 (Fla. 4th DCA 2003). Accordingly, we reverse.

The State argues on appeal that police obtained reasonable suspicion to stop appellant’s vehicle after appellant engaged in “headlong flight.” Headlong flight is “the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” Illinois v. Wardlow, 528 U.S. 119, 124-25, 120 S. Ct. 673 (2000). Headlong flight in a high crime area may provide an officer with a reasonable suspicion to investigate further. F.E.A. v. State, 804 So. 2d 528, 529 (Fla. 1st DCA 2002). However, reasonable suspicion of criminal activity is not established simply because a defendant leaves the scene when an officer nears. See F.E.A. Further, when a party leaves the scene in a car, a party’s intent is not

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always clear. See Cunningham v. State, 884 So. 2d 1121, 1123-24 (Fla. 2d DCA 2004). As explained in Paff v. State, 884 So. 2d 271, 273 (Fla. 2d DCA 2004), a “car that obeys all traffic regulations when leaving a location when a police car arrives would seem to be the motor vehicle equivalent of a person who simply walks away from an officer on foot. Such a person does not invoke the rule ofWardlow.” Here, Appellant did not flee at a high rate of speed or in a reckless manner so as to suggest flight. Further, unlike the defendant in F.E.A., appellant was not seen to run to his car upon sight of police. Instead, according to the officer’s testimony, appellant entered his vehicle and drove away from the scene in an unremarkable fashion. Under these facts, the stop cannot be deemed lawful under Wardlow and its progeny. See Hewlett v. State, 599 So. 2d 757 (Fla. 2d DCA 1992)(holding stop of vehicle was unlawful where three men, who were aside a vehicle parked next to property of a known drug dealer but who were personally unknown to police, jumped into the vehicle and drove away at a lawful rate of speed as an officer approached); Paff; Cunningham.

We therefore reverse the trial court’s denial of the Appellant’s motion to suppress, and accordingly REVERSE the Appellant’s judgment of conviction and vacate his sentence.

LEWIS and CLARK, JJ., CONCUR.

An appeal from the Circuit Court for Duval County.

Michael R. Weatherby, Judge.

Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

The appellant was tried by jury and convicted of one count of first-degree

murder, two counts of armed robbery, and one count of armed burglary. The

appellant was sentenced to four concurrent terms of life imprisonment with a mandatory minimum sentence of life imprisonment. We affirm all four convictions, but reverse and remand for entry of the correct mandatory minimum sentences on the armed robbery and armed burglary convictions.

On the verdict form, the jury specifically found that the appellant discharged a firearm during the commission of the armed robberies and the armed burglary and, as the result of the discharge, caused the death of Gilberto Larios. At the sentencing hearing, the State correctly informed the trial court that a defendant who discharges a firearm during the commission of certain enumerated felonies, including robbery and burglary, and, as the result of the discharge, causes the death of any person shall be sentenced to a mandatory minimum sentence of 25 years’ imprisonment. See § 775.087(2)(a)3., Fla. Stat. (2008); Hoover v. State, 877 So. 2d 751 (Fla. 1st DCA 2004). Nevertheless, the trial court imposed mandatory minimum life sentences for the armed robbery and armed burglary convictions. This was error. Accordingly, we reverse the mandatory minimum sentences for the armed robbery and armed burglary convictions and remand for entry of the mandatory minimum sentences required by section 775.087(2)(a)3.

AFFIRMED in part; REVERSED in part; REMANDED with instructions. VAN NORTWICK, LEWIS, and ROBERTS, JJ., CONCUR.

An appeal from the Circuit Court for Duval County.

Michael R. Weatherby, Judge.

Nancy A. Daniels, Public Defender and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.

WETHERELL, J.

Appellant contends that his convictions and sentences for third-degree

murder and fleeing or attempting to elude a law enforcement officer causing death

(hereafter “fleeing or eluding”) violate the constitutional protection against double

jeopardy because, even though the offenses contain different elements, he is being

punished twice for the death of a single victim. We affirm because we conclude

that fleeing or eluding is not a homicide offense and, thus, double jeopardy does

not bar Appellant’s convictions and sentences for both felony murder and the

underlying felony of fleeing or eluding.

The evidence presented at trial established that, on January 12, 2009,

Appellant approached a woman at a gas station with what appeared to be a gun and

stole her van. Law enforcement officers pursued Appellant for a time with their lights and sirens activated and attempted to initiate a traffic stop. While being

pursued, Appellant drove erratically in excess of the speed limit, eventually

causing an accident with another vehicle. The driver of the other vehicle died as a

result of the collision.

The state filed an information charging Appellant with vehicular homicide,

third-degree murder,1 fleeing or eluding,2 and carjacking. The fleeing or eluding

charge served as the underlying felony for Appellant’s third-degree murder charge.

1 Third-degree murder is defined as “[t]he unlawful killing of a human being, when perpetrated without any design to effect death, by a person engaged in the perpetration of, or in the attempt to perpetrate, any felony” other than the offenses

The jury returned a verdict of guilty as charged on all counts. The trial court

vacated Appellant’s vehicular homicide conviction on double jeopardy grounds

and sentenced Appellant for the other offenses. Appellant was sentenced as an

habitual felony offender to 30 years in prison on the third-degree murder charge,

with a concurrent 30-year term on the fleeing or eluding charge and a consecutive

20-year term on the carjacking charge.

“The Double Jeopardy Clause in both the state and federal constitutions

protects criminal defendants from multiple convictions and punishments for the

same offense.” Gordon v. State, 780 So. 2d 17, 19 (Fla. 2001). However, multiple

convictions for an act or acts committed during the same criminal episode do not

constitute double jeopardy if each offense contains an element that the other does

not. See Valdes v. State, 3 So. 3d 1067, 1070-71 (Fla. 2009) (citing Blockburger

v. U.S., 284 U.S. 299 (1932)); see also § 775.021(4)(a), Fla. Stat. (2008) (codifying

enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated, and during the course of the fleeing or attempted eluding:

* * *

(b) Drives at high speed, or in any manner which demonstrates a wanton disregard for the safety of persons or property, and causes serious bodily injury or death to another person, including any law enforcement officer involved in pursuing or otherwise attempting to effect a stop of the person’s vehicle, commits a felony of the first degree . . . .

§ 316.1935(3)(b), Fla. Stat. (2008).

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Blockburger). Additionally, the Florida Supreme Court has held that double jeopardy does not bar convictions for both felony murder and the underlying felony. See Lukehart v. State, 776 So. 2d 906, 922-23 (Fla. 2000); Boler v. State, 678 So. 2d 319 (Fla. 1996); State v. Enmund, 476 So. 2d 165 (Fla. 1985).

The Legislature has made clear its intent to punish all offenses that occur within a single criminal episode with three exceptions: offenses which require identical elements of proof; offenses which are degrees of the same offense; and offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense. § 775.021(4)(b)1.-3., Fla. Stat. (2008). None of these exceptions apply to Appellant’s convictions.

The first exception is not applicable because, as Appellant concedes, third- degree murder and fleeing or eluding require different elements of proof. The second exception is not applicable because third-degree murder and fleeing or eluding are found in different statutes, neither offense is an aggravated form of the other, and the two are not degree variants of the same offense. See Valdes, 3 So. 3d at 1076-77 (abandoning the “core offense” and “primary evil” tests from earlier cases in favor of an approach that focuses on the plain language of section 775.021(4)(b)2.). The third exception is not applicable because fleeing or eluding is not a lesser included offense of third-degree murder. See State v. Florida, 894 So. 2d 941, 947-48 (Fla. 2005) (explaining that section 775.021(4)(b)3. only

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applies to listed Category 1 lesser included offenses), disapproved on other

grounds by Valdes, 3 So. 3d at 1074-75.

Appellant nevertheless argues that he cannot be convicted and sentenced for

both third-degree murder and fleeing or eluding because the offenses are based

upon a single death. In support of this claim, Appellant relies on McKay v. State,

925 So. 2d 1133 (Fla. 2d DCA 2006), Rodriguez v. State, 875 So. 2d 642 (Fla. 2d

DCA 2004), and Houser v. State, 474 So. 2d 1193 (Fla. 1985).

In Houser, the Florida Supreme Court stated that “the legislature did not

intend to punish a single homicide under two different statutes.” 474 So. 2d at 1197;see also id. at 1196 (“only one homicide conviction and sentence may be imposed for a single death”).3 The court determined that DWI manslaughter was

not merely an enhancement of the penalty for driving while intoxicated, but that

the addition of the death of a victim as an element of the offense “places [DWI

manslaughter] squarely within the scope of this statute’s regulation of homicide.”

Id. Thus, the court held that a defendant could not be convicted and sentenced for both DWI manslaughter and vehicular homicide based on the same death. Id. at

3 The Florida Supreme Court recently observed that this principle is based on “notions of fundamental fairness which recognize the inequity that inheres in multiple punishments for a single killing.” Gordon, 780 So. 2d at 25 (citing Houserand several other cases). But none of the supreme court cases applying this principle involved felony murder and, as noted above, the court has held that it is permissible to convict a defendant of both felony murder and the underlying felony.

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1197; see also Ivey v. State, 2010 WL 4259815, at *2 (Fla. 3d DCA Oct. 29, 2010) (concluding that “Valdes did not overrule the well-settled principle that a single death cannot give rise to dual homicide convictions” and holding, based on Houser, that defendant’s convictions for both DUI manslaughter and vehicular homicide violate double jeopardy).

In Rodriguez, the Second District, citing Houser, determined that the defendant’s dual homicide convictions for third-degree murder and DUI manslaughter violated the protection against double jeopardy. See Rodriguez, 875 So. 2d at 642. The court reasoned that a violation occurred because “more than one homicide punishment was imposed for a single death.” Id. at 645. Likewise, the Second District in McKay, relying on Rodriguez, held that separate convictions for third-degree murder and vehicular homicide arising from a single death violated the protection against double jeopardy. See McKay, 925 So. 2d at 1134.

The state argues that Rodriguez and McKay are distinguishable because the underlying felonies for the third-degree murder convictions in those cases (DUI manslaughter and vehicular homicide, respectively) were homicide offenses whereas the underlying felony in this case (fleeing or eluding) is not a homicide offense. We agree.

Section 316.1935, Florida Statutes, proscribes the offense of fleeing or attempting to elude a law enforcement officer, and identifies various degrees of the

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crime. Pertinent to the analysis in this case, subsection (2) of the statute provides that it is a third-degree felony to willfully flee or attempt to elude an officer in a marked law enforcement vehicle with lights and sirens activated. Subsection (3)(a) enhances the penalty for the offense to a second-degree felony when, in the course of fleeing or eluding, the defendant drives at a high rate of speed or in a manner demonstrating wanton disregard for safety of persons or property. Subsection (3)(b) further enhances the penalty to a first-degree felony when, in the course of fleeing or eluding at a high rate of speed or with wanton disregard for safety of person or property, the defendant “causes serious bodily injury or death” (emphasis supplied).

Unlike DUI manslaughter and vehicular homicide, fleeing or eluding can be committed without causing a death. Thus, fleeing or eluding is not a homicide offense. The alternative element of “serious bodily injury” contained in section 316.1935(3)(b) distinguishes fleeing or eluding from the underlying felony offenses in Rodriguez and McKay, and it also distinguishes fleeing or eluding from DWI manslaughter, which the supreme court held in Houser to be a homicide offense rather than an enhancement to the penalty for DWI because death was an element of the offense. The fact that Appellant’s conviction for fleeing or eluding was based upon a death, rather than serious bodily injury, is irrelevant to the double jeopardy analysis. See § 775.021(4)(a), Fla. Stat. (2008) (explaining that

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the comparison of the elements of the offenses is to be made “without regard to the accusatory pleading or the proof adduced at trial”).

In sum, because fleeing or eluding is not a homicide offense, double jeopardy does not bar Appellant’s convictions and sentences for both third-degree murder and the underlying felony of fleeing or eluding. For the same reason, Appellant’s dual convictions and sentences are not precluded by the “notions of fundamental fairness” underlying the principle that multiple homicide punishments cannot be based upon a single death. Accordingly, we affirm Appellant’s convictions and sentences.

AFFIRMED.

WOLF and HAWKES, JJ., CONCUR.