LARRY KENNETH COLE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Cole appeals his vehicular homicide conviction, arguing the trial court gave an improper jury instruction. The court agreed, finding that the instruction improperly added a blood alcohol level requirement as an alternative to the reckless operation element, which effectively directed a guilty verdict given undisputed evidence of Cole's blood alcohol level, and reversed for a new trial.
The trial court erred by adding the blood alcohol level alternative to the vehicular homicide instruction, which constituted fundamental error requiring a new trial because the uncontroverted evidence of Cole's blood alcohol levels made the instruction tantamount to directing a verdict of guilty.
[1] A jury instruction for vehicular homicide is improper if it includes an element not present in the statutory definition of the crime.
[2] Adding an alternative element to a jury instruction that is not part of the statutory definition of the crime can be tantamount to directing a verdict of guilty.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The trial court added to this instruction the alternative element "or while having a blood alcohol level of 0.10 or above," which is not an element of the crime.”
Establishes that the trial court improperly modified the statutory instruction by adding a non-statutory element.
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Join FLexlaw to unlock all legal intelligenceOn August 6, 1986, Cole lost control of his van, which overturned and left the roadway, killing one of his passengers. Cole was charged with multiple …
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PATTERSON, Judge.
Cole appeals his judgment and sentence for vehicular homicide and argues that the trial court gave an improper jury instruction. We agree and reverse.
On August 6, 1986, Cole lost control of the van he was driving and it left the roadway and overturned. One of Cole’s passengers was killed. On June 18, 1987, Cole was charged in a four-count amended information with: death by intoxicated driver, contrary to section 316.1931, Florida Statutes (1985); manslaughter, contrary to section 782.07, Florida Statutes (1985); vehicular homicide, contrary to section 782.-071, Florida Statutes (1985); and driving while license suspended or revoked, contrary to section 322.34, Florida Statutes (1985).
At trial, the trial judge gave the following jury instruction on the charge of vehicular homicide: Before you can find the defendant guilty of vehicular homicide, the State must prove more than a failure to use ordinary care, and must prove the following three elements beyond a reasonable doubt:
1. Richard Oden is dead.
2. The death was caused by the operation of a motor vehicle by Larry Kenneth Cole.
3. Larry Kenneth Cole operated the motor vehicle in a reckless manner likely to cause the death of or great bodily harm to another person or while having a blood alcohol level of 0.10 or above.
An intent by the defendant to harm or injure the victim or any other person is not an element to be proved by the State.
(Emphasis added.)
The third element of vehicular homicide is that the defendant “operated the motor vehicle in a reckless manner likely to cause the death of or great bodily harm to another person.” Fla.Std.Jury Instr. (Crim.) (vehicular homicide). The trial court added to this instruction the alternative element “or while having a blood alcohol level of 0.10 or above,” which is not an element of the crime. See § 782.071, Fla.Stat. (1985).
The state’s uncontroverted evidence established that Cole’s blood showed alcohol levels of 0.127 and 0.128; thus, the instruction was tantamount to directing a verdict of guilty. The jury found Cole not guilty of death by intoxicated driver and manslaughter and guilty of vehicular homicide. The faulty jury instruction constitutes fundamental error and requires a new trial on the charge of vehicular homicide.
We find no merit in the state’s contention that this issue has not been properly preserved for appeal. See Carter v. State, 469 So. 2d 194 (Fla. 2d DCA 1985). Reversed and remanded.
HALL, A.C.J., and PARKER, J., concur.
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Reed v. State, 783 So. 2d 1192 (Fla. 1st DCA 2001)…tes to the elements of the criminal offense.”); Gill v. State, 586 So. 2d 471 (Fla. 4th DCA 1991) (holding that giving an inaccurate misleading instruction regarding a required element of sexual battery constituted fundamental error); Cole v. State, 573 So. 2d 175 (Fla. 2d DCA 1991) (holding that giving an inaccurate faulty instruction regarding the elements of vehicular homicide constituted fundamental error). In conclusion, I believe this court goes far afield by rejecting the State’s concession of error,…
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Gill v. State, 586 So. 2d 471 (Fla. 4th DCA 1991)…te, 483 So. 2d 89 (Fla. 4th DCA 1986), appeal after remand, 513 So. 2d 188 (Fla. 4th DCA 1987), rev. denied, 520 So. 2d 583 (Fla.1988); Christian v. State, 272 [*473] So. 2d 852 (Fla. 4th DCA), cert. denied, 275 So. 2d 544 (Fla.1973); Cole v. State, 573 So. 2d 175 (Fla. 2d DCA 1991); Stanley v. State, 560 So. 2d 1269 (Fla. 3d DCA 1990); Steele v. State, 561 So. 2d 638 (Fla. 1st DCA 1990). REVERSE AND REMAND FOR NEW TRIAL. ANSTEAD and WARNER, JJ., concur.…
Authorities Cited
- Carter v. State, 469 So. 2d 194 (Fla. 2d DCA 1985)