STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on January 6, 2010, by video teleconference with sites in Orlando and Tallahassee, Florida.

APPEARANCES

For Petitioner: Steven J. Guardiano, Esquire

412 North Wild Olive Avenue Daytona Beach, Florida 32118

For Respondent: Joseph A. Cocchiarella, Esquire

Jeffrey L. Ashton, Esquire

415 North Orange Avenue Post Office Box 1673 Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue presented is whether Petitioner Mark G. Berube has met his burden of proving his actual innocence, thereby entitling him to compensation under the Victims of Wrongful Incarceration Compensation Act.

PRELIMINARY STATEMENT

Petitioner Mark G. Berube filed with the Circuit Court of the Ninth Judicial Circuit in and for Osceola County, Florida, a Petition alleging that he is eligible for compensation under the Victims of Wrongful Incarceration Compensation Act, Chapter 961, Florida Statutes. The Petition remains pending in that Court as Case No. CF 2006-0039 CR.

As required by Section 961.04, Florida Statutes, Circuit Judge Scott Polodna determined that Petitioner is eligible for compensation because he is not ineligible due to other felonies. Because Respondent State of Florida contests the nature, significance, or effect of the evidence of Petitioner's actual innocence or the facts related to the Petitioner's alleged wrongful incarceration, the Circuit Judge on October 9, 2009, entered an Order transferring Petitioner's Petition to the Division of Administrative Hearings for findings of fact and a recommended determination as to whether Petitioner's evidence of actual innocence, based upon clear and convincing evidence, establishes that he is a wrongfully incarcerated person.

Petitioner's attorney filed a copy of that Order with the Division on October 16, 2009. Thus, the January 6, 2010, hearing was conducted, as required by Section 961.03(6)(a), Florida Statutes, within 120 days after the transfer of the Petition.

Section 961.03(6)(c), Florida Statutes, requires this Recommended Order setting forth findings of fact and a recommended determination to be entered within 45 days after adjournment of the hearing and filed with the Circuit Court. This Recommended Order is entered timely pursuant to that statutory deadline.

Neither party presented any witnesses at the evidentiary final hearing. Rather, Petitioner offered a number of documents, primarily pleadings filed in Petitioner's criminal case before the trial court or before the appellate court and several e-mails among personnel at the State Attorney's Office. Petitioner's Exhibits lettered A, B, D, and G through O were admitted in evidence. Four e-mails and two pleadings that were rejected as exhibits were proffered and, therefore, are being transmitted with those exhibits that were admitted in evidence.

Exhibit H is the transcript of Petitioner's criminal trial without any of the exhibits admitted in evidence at that trial. Petitioner did not testify at his criminal trial or in this proceeding. Thus, there is no testimony from him asserting his actual innocence or describing the traffic accident which commenced his prosecution and conviction for vehicular homicide.

Although Petitioner provided a court reporter to record the evidentiary hearing in this cause, no transcript has been filed for the undersigned's use in entering this Recommended Order.

FINDINGS OF FACT

1. On September 7, 2005, Petitioner Mark G. Berube, who lived in Massachusetts, was vacationing in and around Orlando, Florida. He was driving a rental van. In the van with him were his wife Yahaira Berube, their 3 children, and his wife's sister Gaudy Baillargeon. The Berube family was visiting Baillargeon who lived in Orlando.

2. Petitioner was driving eastbound on U.S. 192 toward St. Cloud. It was his intention to turn left on Partin Settlement Road.

3. The intersection of U.S. 192 and Partin Settlement Road is multi-laned. At the intersection, eastbound U.S. 192 has two through lanes plus two dedicated left-turn lanes. Each of the left-turn lanes has a traffic signal which regulates that lane.

   Westbound U.S. 192 (the oncoming traffic) has one dedicated left-turn lane and two through lanes. There is a 15-foot wide

   median, and, according to the Florida Highway Patrol officer who took measurements, the two left-turn lanes and median total a distance of 39 feet.

4. As he approached the intersection where he wanted to turn left, Petitioner was traveling in the right-hand through

   lane. There was a dump truck traveling behind him. When the dump truck moved into the left-hand through lane, the traffic signal was green and the traffic was moving at 45-50 miles per hour, within the speed limit. After the dump truck moved into the left-hand through lane, Petitioner moved into the left-hand through lane in front of the dump truck.

5. When Petitioner moved into the left through lane, the two dedicated left-turn lanes were filled with stopped vehicles since each of those lanes was controlled by left-turn arrows which were red. The oncoming left-turn lane also was filled with vehicles which had a red left-turn arrow controlling their movement.

6. Petitioner without warning and for no apparent reason suddenly stopped in the left-hand through lane although the traffic light was green. The dump truck driver slammed on his brakes and was able to stop behind Petitioner, brakes squealing, air horn blaring, and tires smoking. When the dump truck completed its stop, it was only a foot or two behind the van.

7. Petitioner remained stopped for a few seconds after the dump truck had completely stopped behind him. He then drove his van forward about 10-15 feet and made an immediate left turn in front of the two stopped left-hand turn lanes in his direction of travel and in front of the stopped oncoming left-hand turn lane. He continued across one oncoming through lane and struck

   a Ford traveling in the oncoming outside through lane, killing the passenger in that vehicle. The stopped traffic in the oncoming dedicated left-turn lane on U.S. 192 prevented Petitioner from seeing the continuous oncoming through traffic and prevented the oncoming vehicles from seeing Petitioner making his illegal left turn, although there is some evidence that the driver of one oncoming vehicle did see Petitioner and was able to avoid him.

8. On January 3, 2006, a two-count information was filed against Petitioner charging him with one count of vehicular homicide relating to the passenger in the Ford and one count of vehicular homicide of a viable fetus relating to Petitioner's sister-in-law. In June the State filed a nolle prosequi of the charge of vehicular homicide of a viable fetus.

9. Petitioner was tried by a jury on June 26 and 27, 2006, in the Circuit Court of Osceola County, Florida. During his trial, the jury was taken to the intersection to view where the crash occurred. The jury found Petitioner guilty of vehicular homicide as charged in count one of the information.

10. At the close of the State's evidence at his trial and before his wife and sister-in-law testified, Petitioner moved for a judgment of acquittal, arguing that the State did not prove that Petitioner had operated a motor vehicle in a reckless manner likely to cause death or great bodily harm. His motion

    was denied. After his wife and sister-in-law testified, Petitioner renewed his motion for a judgment of acquittal based upon the same argument, and his motion was again denied.

11. On February 8, 2008, the Fifth District Court of Appeal issued an Opinion determining that the trial court should have granted Petitioner's motion for judgment of acquittal, reversing Petitioner's conviction, and ordering the trial court to discharge Petitioner. Berube v. State of Florida, 6 So. 3d 624 (Fla. 5th DCA 2008).

12. In a 2-1 decision, the appellate Court found that, as a matter of law, the State failed to present sufficient evidence to prove that Petitioner acted with the requisite level of recklessness sufficient to prove vehicular homicide. The majority opinion concluded that the State had failed to prove that Petitioner "in an intentional, knowing, and purposeful manner, made an improper left turn with a conscious and intentional indifference to consequences and with knowledge that damage is likely to be done to persons or property."

    Id. at 626.

    
    

13. The dissenting opinion pointed out the similarity between Petitioner's actions and the facts in that same Court's earlier opinion in State v. Ynocenscio, 773 So. 2d 613 (Fla. 5th DCA 2000), wherein the defendant, while passing another vehicle

    in the fog, collided with and killed a motorcyclist. In that case, the Court explained:

    It is sufficient that he intend [sic] to drive as he did. Here, there is no question that Ynocenscio intended to pass a vehicle in the fog. This action was more than mere negligence. Passing in a fog which restricts visibility, even in an area normally safe for passing, is as reckless as passing on a curve without being able to see around the bend or passing upon approaching a hill without being able to see above the crest. Such a driver is gambling on an empty highway with potential death as the stakes. The fact that the defendant was not speeding, was driving on a straight section of the highway, and in a vehicle which was mechanically sound, does not lessen the recklessness of his action.

    
    

    Id. at 614-615.

    
    

14. Like Ynocenscio, Petitioner intended to drive as he did. He suddenly came to a stop in a through lane with a green light. After the dump truck came to a complete stop behind him, Petitioner then decided that he was going to make the left turn he wanted to make even though it meant driving across three lanes of stopped traffic and two lanes of oncoming traffic with his vision of oncoming traffic obstructed by the stopped vehicles. Understandably, the trial court determined that it was reasonably foreseeable that death or great bodily harm would result when Petitioner drove in the manner in which he did rather than simply driving through the intersection and then

    returning to that intersection to turn onto Partin Settlement Road safely.

15. Due to the similarity of the facts in the Ynocenscio case and in Petitioner's case, with different results, the State filed a Motion for Rehearing/Motion for Rehearing En Banc with the appellate court. After fourteen months and after hearing oral argument, the Court denied that Motion.

16. However difficult it may be to understand the Court's majority opinion, it remains that Petitioner appealed his conviction, and it was reversed. The appellate court has ruled that the evidence presented by the State was legally insufficient and further has ruled that Petitioner did not commit the offense which formed the basis of his conviction. That determination controls in this proceeding.

17. However, the legal sufficiency of the evidence against Petitioner is not the issue herein. The purpose of this proceeding is not to determine whether Petitioner is guilty beyond a reasonable doubt of the crime of vehicular homicide because of the reckless manner in which he drove. That was the issue before the trial court and then before the appellate court which overturned his conviction.

18. Rather, in this proceeding wherein Petitioner is seeking monetary compensation for his wrongful incarceration, Section 961.03, Florida Statutes, requires Petitioner to

    establish by clear and convincing evidence that he committed neither the act nor the offense that served as the basis for his conviction and incarceration and that he did not aid, abet, or act as an accomplice or accessory to a person who committed the act or offense. Further, he must prove his actual innocence by verifiable and substantial evidence in order to meet the definition of a wrongfully incarcerated person.

19. The parties agree that, by virtue of the appellate court's opinion, it has been determined that Petitioner did not commit the offense that served as the basis for his conviction and incarceration, i.e., vehicular homicide. The parties further agree that Petitioner did not aid, abet, or act as an accomplice or accessory to a person who committed the act or offense. It is undisputed that Petitioner was driving the van.

20. The dispute between the parties involves the interpretation of the word "act," and Petitioner must prove by clear and convincing evidence that he did not commit the "act" that served as the basis for his conviction and incarceration in order to prevail in this proceeding. Petitioner argues, essentially, that "act" means "criminal act" which means "offense." Therefore, since the appellate court determined that Petitioner was not proven guilty of the "offense," a fortiori, the appellate court also determined that he did not commit the "act." Petitioner's argument is without merit.

21. Section 961.02(4), Florida Statutes, defines a wrongfully incarcerated person as one who neither committed the act nor the offense that served as the basis for the conviction and incarceration. "Act" and "offense" are used disjunctively and not conjunctively. It can only be concluded that the Legislature intended those two words in the context of this statute to mean different things.

22. Petitioner suggests that he was merely reacting to an emergency situation when he turned left because his passengers were afraid the dump truck would hit them. That argument is not persuasive or even logical. Petitioner caused the "emergency situation" by suddenly and without warning stopping in a through lane with a green light and traffic traveling around him at 45-

    50 miles per hour. Further, once the dump truck came to a complete stop, the emergency situation had ceased. Petitioner could have driven forward and traveled straight through the intersection while the traffic light controlling his lane was still green.

23. The testimony at trial is clear that Petitioner was driving the van, could easily have caused serious injury to the passengers in the van and the dump truck driver when he suddenly stopped for no apparent reason, and then made an illegal left turn against multiple traffic signals to cross multiple lanes of traffic despite the fact that stopped vehicles prevented him

    from seeing oncoming moving vehicles. Petitioner had wanted to make a left turn at the intersection and he made the conscious and intentional decision to do so no matter what the risk to persons or property. The evidence is clear and convincing that Petitioner committed the act which served as the basis for the charge of vehicular homicide due to his reckless driving, which, in turn, served as the basis for his conviction and incarceration.

24. Section 961.03(1)(a), Florida Statutes, requires that the order vacating the conviction and sentence be based upon exonerating evidence. The appellate court's opinion in Petitioner's appeal is based upon the legal insufficiency of the evidence against Petitioner and does not suggest the presence of any exonerating evidence.

25. Further, Section 961.03(1)(a)1, Florida Statutes, requires Petitioner to present verifiable and substantial evidence of actual innocence in this proceeding. He offered none. The appellate court's opinion that the State failed to meet its burden of proof is not verifiable and substantial evidence of Petitioner's actual innocence. The transcript of the testimony given at Petitioner's trial is not verifiable and substantial evidence of Petitioner's actual innocence.

26. The statutes regulating this proceeding do not consider the legal sufficiency of the evidence as did the

    appellate court when it reversed Petitioner's conviction. Rather, the statutes seek a determination of the factual sufficiency of the evidence by requiring the undersigned to make findings of fact as to Petitioner's actual innocence if proven by verifiable and substantial evidence. In other words, proof of factual innocence is required.

27. The legislative intent is clear from the use of the terms "based upon exonerating evidence" and "verifiable and substantial evidence of actual innocence" that the Legislature did not intend that every defendant whose conviction is subsequently overturned for legal insufficiency be compensated under the Victims of Wrongful Incarceration Compensation Act. The legislative intent is further clarified by requiring that a person seeking compensation under the Act must prove actual innocence by clear and convincing evidence, a high burden of proof. The apparent purpose of the Act is to compensate persons who were completely innocent of the crimes charged, i.e., to compensate persons who were convicted and incarcerated as a result of, for example, mistaken identifications, planted evidence, or perjury where the wrongfulness of the conviction is discovered due to exonerating and/or new evidence such as DNA testing or newly-discovered witnesses.

28. Petitioner has failed to meet his burden of proving actual innocence by clear and convincing evidence and, thus, has

failed to establish that he is a wrongfully incarcerated person eligible for compensation under the Victims of Wrongful Incarceration Compensation Act.

RECOMMENDED DETERMINATION

Based upon the record in this proceeding and the above Findings of Fact, it is

RECOMMENDED that an order be entered by the Circuit Judge determining that Petitioner has failed to meet his burden of proving actual innocence by clear and convincing evidence, denying Petitioner’s claim for compensation, and dismissing his Petition.

DONE AND ENTERED this 2nd day of February, 2010, in Tallahassee, Leon County, Florida.

S

LINDA M. RIGOT

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 2010.

COPIES FURNISHED:

Steven J. Guardiano, Esquire

412 North Wild Olive Avenue Daytona Beach, Florida 32118

Bradford Fisher, Esquire Office of the State Attorney

2 Courthouse Square, Suite 3500 Kissimmee, Florida 34741

Joseph A. Cocchiarella, Esquire Jeffrey L. Ashton, Esquire

415 North Orange Avenue Post Office Box 1673 Orlando, Florida 32801

Honorable Scott Polodna Osceola County Circuit Judge

2 Courthouse Square, Suite 6300 Kissimmee, Florida 34741

Malcom Thompson, Clerk of Court Osceola County

2 Courthouse Square, Suite 6300 Kissimmee, Florida 34741

Docket for Case No: 09-005640VWI

Orders for Case No: 09-005640VWI