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

STATE OF FLORIDA,                      NOT FINAL UNTIL TIME EXPIRES TO
                                       FILE MOTION FOR REHEARING AND
      Appellant,                       DISPOSITION THEREOF IF FILED

v.                                     CASE NO. 1D15-1822

SAMUEL DEPRIEST,

     Appellee.
_________________________/

Opinion filed December 4, 2015.

An appeal from the Circuit Court for Walton County.
Kelvin C. Wells, Judge.

Pamela Jo Bondi, Attorney General, Matthew Pavese, Assistant Attorney General,
Tallahassee, for Appellant.

Nancy A. Daniels, Public Defender, Steven L. Seliger, Assistant Public Defender,
Tallahassee, for Appellee.




THOMAS, J.

      Samuel Depriest was charged by information with vehicular homicide.

Depriest moved to dismiss the charges pursuant to Florida Rule of Criminal

Procedure 3.190(c)(4) (2014), asserting that his actions did not rise to the level of

recklessness required to prove the offense of vehicular homicide. The State filed a
traverse, and the matter proceeded to a hearing. After the hearing, the trial court

granted Depriest’s motion, concluding that the undisputed facts did not establish

that Depriest’s actions rose to the level of willful and wanton driving, and granted

the motion to dismiss. We disagree. We conclude that the undisputed facts

established a prima facie case of vehicular homicide as a matter of law and reverse.

      As previously noted by this court in Bonge v. State, 

, 1233

(Fla. 1st DCA 2011):

             The purpose of a motion to dismiss an information pursuant to
      rule 3.190(c)(4) is to ‘ascertain whether the undisputed facts which the
      State will rely on to prove its case, establish a prima facie case, as a
      matter of law, so as to permit a jury to determine the defendant guilty of
      the crime charged.’ Lowe v. State, 

, 791 (Fla. 5th DCA
      2010), quoting State v. Walthour, 

, 595 (Fla. 5th DCA
      2004). Because this appeal raises a question of law, the standard of
      review is de novo. State v. Sholl, 

, 1160 (Fla. 1st DCA
      2009).

      Here the undisputed facts reflect that at approximately one a.m. on

November 28, 2013, the Florida Highway Patrol was notified of a crash on

U.S. Highway 331, a two-lane undivided highway. The posted speed limit was

55 mph, and the area was rural with limited traffic and no artificial lighting.

Depriest was driving south and came upon a slower-moving van and proceeded to

pass in a legal passing area. A witness, travelling southbound behind Depriest,

also passed the van. The witness estimated that they were both travelling around

the speed limit of 55 mph, and increased to around 60 mph while passing.

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      After passing the slower-moving van, the witness returned to the southbound

lane but Depriest remained in the northbound lane, travelling in the wrong lane for

approximately one-half mile until the head-on collision with the victim’s car,

killing the driver. The witness saw the victim’s headlights and stated that Depriest

took no evasive action.     The investigator determined that both vehicles were

travelling at approximately 55 mph at the time of the collision.

      In Depriest’s recorded statement to the police, he asserted that he did not see

the victim’s vehicle or headlights. He acknowledged he travelled in the opposite

lane to avoid having to pass any potential slower-moving vehicles, none of which

were observed by the witness. In other words, Appellant drove the wrong way for

one-half mile for his convenience should he need to pass another car.           This

statement was excluded by motion in limine before the hearing on the motion to

dismiss, but the court then agreed, for purposes of the motion to dismiss, to

consider the statement.

      Section 782.071, Florida Statutes (2014), outlines “vehicular homicide” as

“the killing of a human being … caused by the operation of a motor vehicle by

another in a reckless manner likely to cause the death of, or great bodily harm to,

another.” In Cahours v. State, 

, 577 (Fla. 1st DCA 2014), this court

recently discussed the burden of proof for vehicular homicide, holding:

      In determining the State's burden of proof for a vehicular homicide
      conviction, this court has reasoned that because “the offense of
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      vehicular homicide has been described by the supreme court as
      involving a degree of negligence more than a mere failure to use
      ordinary care, the state must necessarily adduce evidence showing
      conduct at least sufficient to constitute reckless driving as ... involving
      a ‘willful or wanton disregard for the safety of persons or
      property....’” W.E.B. v. State, 

, 326 (Fla. 1st DCA
      1989) (quoting § 316.192, Fla. Stat.).

(Italicized emphasis in original; bolded emphasis added.)

      The standard jury instruction on reckless driving provides the following

definitions for “willful” and “wanton”:

      “Willful” means intentionally, knowingly and purposely.
      “Wanton” means with a conscious and intentional indifference to
      consequences and with knowledge that damage is likely to be done to
      persons or property.

Fla. Std. Jury Instr. (Crim.) 28.5 (2014).

      This court in W.E.B. outlined these definitions of “willful” and “wanton”

and further held:

      [A]lthough a defendant need not have foreseen the specific
      circumstances causing the death of the particular victim, it is
      sufficient that he or she should have reasonably foreseen that the same
      general type of harm might occur if he or she knowingly drives the
      vehicle under circumstances that would likely cause the death of
      

.

      We have considered the case law cited by both Depriest and the State to

support their respective positions. See e.g. Miller v. State, 

(Fla.

1954); Sexton v. State, 

(Fla. 1st DCA 2005). We find that the

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undisputed facts of this case are not like the cases cited by Depriest. Depriest was

not briefly distracted. He made a calculated and willful decision to travel in the

wrong lane for one-half mile at a speed which was very likely to kill or seriously

maim in the event of a head-on collision, which occurred. A jury could lawfully

and reasonably decide that willfully and unnecessarily driving 55 mph for a half-

mile in the wrong lane of traffic, when fully capable of returning to the correct

lane, was a willful and wanton disregard for the safety of others. To affirm the

trial court’s order would be equivalent to holding that a driver who travels in the

wrong lane of traffic until he kills another driver in a head-on collision is mere

negligence. We decline to so hold.

      Accordingly, we REVERSE the order of dismissal and REMAND for

reinstatement of the charge of vehicular homicide.

WOLF, J., CONCURS; KELSEY, J., DISSENTS WITHOUT OPINION.




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