IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

JOSEPH STEWART,                       NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D13-4115

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed September 10, 2014.

An appeal from the Circuit Court for Santa Rosa County.
David Rimmer, Judge.

Joseph Stewart, pro se, Appellant.

Pamela Jo Bondi, Attorney General, and Lauren L. Brudnicki, Assistant Attorney
General, Tallahassee, for Appellee.


PER CURIAM.

      The appellant appeals the denial of his motion for postconviction relief filed

pursuant to Florida Rule of Criminal Procedure 3.850. For the reasons discussed

below, we reverse and remand the denial of grounds one and three of the motion.

We otherwise affirm the order on appeal.

      In 2010, following a jury trial, the appellant was convicted of DUI

manslaughter, two counts of DUI with bodily injury and leaving the scene of an
accident with property damage, and was sentenced to a total of 25 years’

imprisonment. He filed a postconviction motion alleging three grounds for relief.

In ground one, the appellant asserted that counsel was ineffective for advising him

to reject a favorable plea offer of 12-14 years’ imprisonment when counsel did not

have a reasonable defense planned. In ground three, the appellant asserted the

related claim that counsel was ineffective for conceding all the elements of the

DUI manslaughter and DUI with bodily injury. Cf. Fla. Std. Jury Instr. 7.8 (the

elements of DUI manslaughter are: (1) the defendant drove, (2) while intoxicated

(more than .08 BAC), and (3) “as a result of operating the vehicle, (defendant)

caused or contributed to the cause of the death of [the victim].”) (emphasis added).

      The appellant argued that counsel conceded each element of DUI

manslaughter and DUI with bodily injury, with the exception of the appellant

causing or contributing to the accident. But even there, he argues that it was

unreasonable to go to trial contesting that element while knowing that the defense

expert would testify the appellant was traveling 65-70 miles per hour (25 mph

more than the speed limit). In effect, his counsel conceded the “cause or

contribute” element of the offense by introducing the speed evidence through the

expert (which the expert later conceded on cross examination to have “contributed

to the crash”). See Magaw v. State, 

, 567 (Fla. 1989) (“[T]he statute

does not say that the operator of the vehicle must be the sole cause of the fatal

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accident. . . . [Rather] any deviation or lack of care on the part of a driver . . . to

which the fatal accident can be attributed will suffice.”) (emphasis added);

Robitaille v. State, 

(Fla. 4th DCA 2006) (concluding that a

defendant was not prejudiced by counsel’s failure to object to certain testimony in

a DUI manslaughter case because other evidence showed that the defendant was

under the influence, “was driving too fast,” and was “racing up the street.”). The

State then highlighted the defense expert’s concession in its closing argument.

      The record does not contain any documents refuting the appellant’s claim

that counsel was deficient, or demonstrating that the appellant was not prejudiced

as a result. Accordingly, we reverse and remand for the trial court to conduct an

evidentiary hearing on grounds one and three of the appellant’s motion.

      AFFIRMED in part, and REVERSED and REMANDED in part, with

instructions.

LEWIS, C.J., THOMAS, and OSTERHAUS, JJ., CONCUR.




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