BRIAN DOUGLAS HAAG, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Brian Douglas Haag appealed his convictions for vehicular homicide/leaving the scene, leaving the scene of a crash involving injury (two counts), and reckless driving with serious bodily injury. The court reversed his convictions on the two leaving-the-scene counts as violating double jeopardy principles, finding them subsumed within the vehicular homicide conviction, but affirmed his remaining convictions.
The court reversed Haag's convictions and five-year sentences on counts two and three (leaving the scene of a crash involving injury) because they are subsumed within and violate double jeopardy principles when charged alongside the vehicular homicide/leaving the scene conviction. The court affirmed his convictions and sentences on counts one, four, and five.
[1] A double jeopardy violation constitutes fundamental error and may be raised for the first time on appeal absent waiver.
[2] Convictions for vehicular homicide/leaving the scene under section 782.071(1)(b), Florida Statutes, subsume the requirements of leaving the scene of a crash involving inj…
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“Section 782.071 subsumes the requirement found in section 316.027 that the motorist stop and comply with the requirements of section 316.062, Florida Statutes (1997).”
Establishes the legal principle that vehicular homicide/leaving the scene charges subsume the requirements of leaving-the-scene-of-injury charges, creating double jeopardy when both are charged for the same accident.
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Join FLexlaw to unlock all legal intelligenceHaag was involved in a single crash on October 3, 2007, that resulted in one death (Kenneth Sapp) and injuries to two others (Corey Sapp and David Smi…
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Brian Douglas Haag appeals his convictions and sentences for vehicular homicide/leaving the scene (count one), leaving the scene of a crash involving injury (counts two and three), and reckless driv*352ing with serious bodily injury (counts four and five).1 The trial court imposed a sentence of twenty years in prison on count one. The trial court imposed five years in prison on the remaining counts, concurrent with each other and consecutive to count one. Based on Haag’s double jeopardy argument, we reverse his convictions and sentences on counts two and three. We affirm without discussion the remaining convictions and sentences.
Haag contends that his conviction for vehicular homicide/leaving the scene pursuant to section 782.071(l)(b), Florida Statutes (2007), and his two convictions for leaving the scene of a crash involving injury pursuant to 316.027(l)(a), Florida Statutes (2007), violated double jeopardy principles and constituted fundamental error. The three counts at issue involve three different victims. In count one the victim was Kenneth Sapp, who died as a result of the crash that occurred on October 3, 2007. The victims in counts two and three, Corey Sapp and David Smith, sustained injuries as a result of that same crash.
Haag properly raises this double jeopardy argument on appeal. Absent waiver, a double jeopardy issue may be addressed for the first time on appeal because a double jeopardy violation constitutes fundamental error. See Hunt v. State, 769 So.2d 1109, 1110 (Fla. 2d DCA 2000). Nothing in our record indicates that Haag waived the double jeopardy claim in the trial court.
In Hunt, this court recognized that convictions for vehicular homicide/leaving the scene of an accident involving death under section 782.071(2), Florida Statutes (1997), and leaving the scene of an accident involving injury under section 316.027(1), Florida Statutes (1997), violated double jeopardy principles because Hunt left the scene of only one accident. 769 So.2d at 1111; see also Williams v. State, 732 So.2d 431, 432-33 (Fla. 2d DCA 1999) (determining that only one conviction for leaving the scene of an accident could stand because the defendant left the scene of only one accident); Waldecker v. State, 707 So.2d 777, 778 (Fla. 2d DCA 1998) (same). This court stated in Hunt that “[sjection 782.071 subsumes the requirement found in section 316.027 that the motorist stop and comply with the requirements of section 316.062, Florida Statutes (1997).” 769 So.2d at 1111. For purposes of the double jeopardy analysis, the 1997 statutes at issue in Hunt are the same in all pertinent respects as the 2007 version of the statutes that are applicable here.
The State relies upon McKnight v. State, 906 So.2d 368 (Fla. 5th DCA 2005), to support its position that the conviction for vehicular homicide/leaving the scene and the two convictions for leaving the scene of a crash involving injury do not violate double jeopardy principles. However, McKnight is distinguishable because there the issue was whether two convictions for vehicular homicide under section 782.071(1)(b) constituted a double jeopardy violation where the defendant fled and failed to give aid to the victims. Id. at 369. In rejecting McNight’s argument, the Fifth District recognized that it was not addressing convictions for leaving the scene of an accident under section 316.027 in addition to the vehicular homicide convictions. Id. at 373.
Here, because Haag’s two convictions for leaving the scene of a crash involving injury under section 316.027 are subsumed within the conviction for vehicular homicide/leaving the scene under section 782.071(l)(b), double jeopardy principles require that the two convictions under *353section 316.027 be reversed. See Hunt, 769 So.2d at 1111. Therefore, we reverse Haag’s convictions and five-year sentences on counts two and three for leaving the scene of a crash involving injury. We affirm his remaining convictions and sentences on counts one, four, and five.
Affirmed in part and reversed in part.
DAVIS and BLACK, JJ., Concur.
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Tippy McCullough v. State, 230 So. 3d 586 (Fla. 2d DCA 2017)…felony for failure to remain at the scene and comply with Florida’s statutory information-giving and aid-giving duties. See § 782.071(l)(b). If it had been so reclassified, these two convictions would have created double jeopardy. See Haag v. State, 67 So. 3d 351, 352 (Fla. 2d DCA 2011); Hunt v. State, 769 So. 2d 1109, 1110 (Fla. 2d DCA 2000); Colon v. State, 53 So. 3d 376, 378-79 (Fla. 5th DCA 2011); Ivey v. State, 47 So. 3d 908, 911 (Fla. 3d DCA 2010); cf. Kelly v. State, 987 So. 2d 1237, 1239 (Fla. 2d DCA…
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Mathes v. State, 106 So. 3d 73 (Fla. 2d DCA 2013)…or both conspiracies violate double jeopardy. “Because a double jeopardy violation constitutes fundamental error, it may be raised for the first time on appeal.” Eichelberger v. State, 949 So. 2d 358, 859 (Fla. 2d DCA 2007); see also Haag v. State, 67 So. 3d 351, 352 (Fla. 2d DCA 2011); Safrany v. State, 895 So. 2d 1145, 1147 (Fla. 2d DCA 2005) (noting that a double jeopardy claim may be made for the first time on appeal “absent a knowing and voluntary waiver”). In Negron Gil De Rubio v. State, 987 So. 2d…
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Authorities Cited
- McKNIGHT v. State, 906 So. 2d 368 (Fla. 5th DCA 2005)
- Terranton Hunt v. State, 769 So. 2d 1109 (Fla. 2d DCA 2000)
- Williams v. State, 732 So. 2d 431 (Fla. 2d DCA 1999)
- Reggie Farrior v. State, 707 So. 2d 777 (Fla. 2d DCA 1998)