JOSEPH SAFRANY, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Joseph Safrany petitioned for relief alleging ineffective assistance of appellate counsel for failing to raise a double jeopardy challenge to his convictions for both DUI manslaughter and vehicular homicide arising from a single fatal accident. The court granted the petition in part, finding that appellate counsel should have challenged the vehicular homicide convictions as barred by double jeopardy principles and reversing those convictions.
Appellate counsel was ineffective for failing to raise the double jeopardy challenge because double jeopardy violations constitute fundamental error that can be raised for the first time on appeal and are not waived for appellate purposes. The vehicular homicide convictions were barred by double jeopardy considerations and must be reversed.
[1] A claim that a judgment of conviction was entered in violation of double jeopardy protections cannot be raised in a motion to correct an illegal sentence.
[2] A violation of double jeopardy principles constitutes fundamental error which may be raised for the first time on appeal.
Previewing 2 of 4 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“a single death cannot support convictions for both DUI manslaughter and vehicular homicide”
Establishes the foundational legal principle that simultaneous convictions for these two offenses arising from a single death are prohibited
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Join FLexlaw to unlock all legal intelligenceWhile driving under the influence of alcohol, Safrany's vehicle struck another vehicle, killing the driver and two passengers. Safrany was convicted o…
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VILLANTI, Judge.
Joseph Safrany, in his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), raises two grounds alleging ineffective assistance of appellate counsel. We grant the petition as it relates to one of the grounds, and we deny, without comment, the remaining ground.
The testimony at trial showed that, while Safrany was driving under the influence of alcohol, his vehicle struck another vehicle, killing the driver of that vehicle and two of his passengers. As a result of the three deaths, Safrany was convicted of three counts of DUI manslaughter and three counts of vehicular homicide. Although the judgment establishes that Saf-rany was convicted of three counts of DUI manslaughter and three counts of vehicular homicide, he was sentenced only on the DUI manslaughter convictions. Safrany alleges that appellate counsel was ineffective in failing to argue on direct appeal that his convictions for vehicular homicide are prohibited by double jeopardy considerations.
In its response, the State concedes that a single death cannot support convictions for both DUI manslaughter and vehicular homicide. See State v. Chap man, 625 So. 2d 838, 839-40 (Fla.1993); Edwards v. State, 639 So. 2d 203, 203 (Fla. 2d DCA 1994). However, the State argues that the question of whether such simultaneous convictions violate double jeopardy protections is one that should be raised in a Florida Rule of Criminal Procedure 3.800(a) motion rather than on direct appeal. The State’s assertion is incorrect.
A claim that a judgment of conviction was entered in violation of double jeopardy protections cannot be raised in a rule 3.800(a) motion because the challenge is to the conviction and not to the sentence. See Plowman v. State, 586 So. 2d 454, 455-56 (Fla. 2d DCA 1991); Smith v. State, 886 So. 2d 336, 337-38 (Fla. 5th DCA 2004). Furthermore, a “violation of double jeopardy principles is fundamental error which, absent a knowing and voluntary waiver, may be raised for the first time on appeal.” Hunsicker v. State, 881 So. 2d 1166, 1169 (Fla. 5th DCA 2004). In Gisi v. State, 848 So. 2d 1278 (Fla. 2d DCA 2003), we held that Gisi’s appellate counsel was ineffective for not raising the issue that certain of Gisi’s convictions “were barred by double jeopardy considerations regardless of the fact that trial counsel did not present this argument to the trial court.” Id. at 1281. We concluded that this “issue was not waived for appellate purposes because a double jeopardy violation constitutes fundamental error which can be raised for the first time on appeal.” Id.
In the present case, because each of the three deaths resulted in a conviction for both DUI manslaughter and vehicular homicide, Safrany’s convictions for vehicular homicide were barred by double jeopardy considerations. Because a new appeal would be redundant in this instance, we reverse the vehicular homicide convictions and remand to the trial court with directions to strike those convictions. See Hernandez v. State, 884 So. 2d 281, 282 (Fla. 2d DCA 2004).
The petition is denied in part and granted in part with directions to the trial court.
SILBERMAN and KELLY, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. Chapman, 625 So. 2d 838 (Fla. 1993)
- Gisi v. State, 848 So. 2d 1278 (Fla. 2d DCA 2003)
- Plowman v. State, 586 So. 2d 454 (Fla. 2d DCA 1991)
- Frederico Hernandez v. State, 884 So. 2d 281 (Fla. 2d DCA 2004)
- Freddick Davis v. Kirkland, 881 So. 2d 1166 (Fla. 1st DCA 2004)
- Hinton v. Hinton, 886 So. 2d 336 (Fla. 5th DCA 2004)
- Smith v. State, 886 So. 2d 336 (Fla. 5th DCA 2004)
- Filipkowski v. Vegosen, 639 So. 2d 203 (Fla. 4th DCA 1994)