Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D18-3341 _____________________________ THOMAS FRANK CLARK, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Clay County. John H. Skinner, Judge. April 6, 2021 ROBERTS, J. The appellant, Thomas Frank Clark, was convicted of DUI manslaughter, DUI with property damage, and DUI. In his first issue on appeal, he challenges the sufficiency of the evidence to convict him for DUI manslaughter and DUI with property damage. We reject this issue and affirm the convictions. In his second issue, he argues the trial court erred in denying his request for a downward departure sentence because the court misinterpreted the law. We reject this issue and affirm the appellant’s sentence. In his third issue, he argues the written judgement and sentence did not conform to the trial court’s oral pronouncement. We agree that the written judgment and sentence should be remanded as discussed herein. On the night of the accident, the appellant was driving an ATV with his son Kameron 1 riding on the back. The appellant and a friend were driving their ATVs on a rural road that was described as “somewhat dangerous” due to low visibility and the fact there was no shoulder. Sometime around 8:45 p.m., the appellant’s ATV tipped over into a ditch flanking the road. The appellant was able to get the ATV upright and back on the road. The appellant and Kameron got back on the ATV while the appellant attempted to start it. 2 By that time, a truck was quickly approaching the ATV. Witnesses around the appellant began yelling for him and Kameron to get out of the road. The appellant’s friend tried to wave down the truck, but it became clear the truck was not slowing down. One witness testified he repeatedly yelled for the appellant to get out of the way, but the appellant ignored the warnings. The truck collided with the appellant’s ATV, injuring the appellant and killing Kameron. The appellant was airlifted to a nearby hospital. He was conscious and admitted he had consumed alcohol. A Florida Highway Patrol Trooper met the appellant around 9:30 p.m. and observed the appellant’s eyes were watery and he had a strong odor of alcohol on his breath. The appellant’s blood was drawn around 10 p.m. and revealed he had a blood alcohol level (BAL) of .16 to .21. I. On appeal, the appellant argues there was insufficient evidence to convict him for DUI manslaughter and DUI with property damage because the State did not prove that he was in actual physical control of the ATV while impaired or that his 1 Kameron was seventeen years old at the time and had Down’s Syndrome. Witnesses testified Kameron functioned at the level of a six- to eight-year-old. 2 Some of the witnesses believed the ATV had a safety mechanism that caused the engine to turn off when tipped. They believed the ATV had to be in neutral before it could be cranked. 2 operation of the ATV caused or contributed to Kameron’s death. We reject these arguments. DUI manslaughter requires proof that the appellant was operating a vehicle while legally impaired and that his operation of the vehicle caused or contributed to Kameron’s death. 3 Jones v. State, 297 So. 3d 685, 687 (Fla. 1st DCA 2020). The State introduced sufficient evidence that the appellant was impaired. His BAL was well above the legal limit. While the State could not relate the BAL back to the time of the accident, it was still admissible, and its weight and credibility was properly determined by the jury. See Miller v. State, 597 So. 2d 767, 770 (Fla. 1991) (holding a blood alcohol test was admissible and the State’s inability to relate it back to the time the defendant was driving was a question of credibility and weight of the evidence, not admissibility). Further evidence proved impairment including the appellant’s own admission that he had consumed alcohol and the trooper’s observation of signs of impairment. The State introduced sufficient evidence that the appellant was in actual control of an operable ATV. It was undisputed the ATV was operable until just before the accident. Even if the ATV was inoperable right before the accident, the defense of inoperability does not apply where a vehicle is reasonably capable of being rendered operable. See Cloyd v. State, 943 So. 2d 149, 168- 70 (Fla. 3d DCA 2006) (recognizing actual physical control only requires that the vehicle be reasonably capable of being rendered operable, not that the defendant have the immediate ability to operate the vehicle). The evidence was clear the appellant drove the ATV in a manner to flip it and caused it to be in the road in danger of oncoming traffic when it was hit. This evidence was sufficient for the jury to find the appellant was in physical control of the ATV, which he drove to a resting place that resulted in 3 DUI with property damage shares the same first two elements; the third element requires proof that because of operating the vehicle, the defendant caused or contributed to causing damage to property. § 316.193(3), Fla. Stat. It is undisputed the truck was totaled in the accident. 3 Kameron’s death. See State v. Boyton, 556 So. 2d 428, 429 (Fla. 4th DCA 1989) (finding evidence supported DUI conviction where defendant claimed he did not have control of the vehicle because it was inoperable in a ditch because the evidence showed the defendant had driven it to that point). The State introduced sufficient evidence to prove the appellant operated the ATV in a manner that contributed to Kameron’s death. A driver’s conduct does not have to be the sole cause of the accident to support a conviction for DUI manslaughter. Jones, 297 So. 3d at 686. The State must only present evidence to show the driver’s conduct contributed to the victim’s death. Id. Here, the truck clearly caused the accident. However, the State’s expert testified even if the truck’s driver had been going the speed limit, he could not have avoided the accident. The evidence also showed the appellant’s operation of the ATV placed it in the path of oncoming traffic on a dark road. The appellant refused to heed warnings to abandon the ATV. There was sufficient evidence to prove the appellant’s operation of the ATV contributed to Kameron’s death. We affirm the convictions for DUI manslaughter and DUI with property damage. II. The appellant argues the trial court erred when it rejected his request for a downward departure sentence. A trial court has discretion to impose a downward departure sentence when certain mitigating circumstances are present, including when “[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” §§ 921.002(3) & 921.0026(2)(j), Fla. Stat. The trial court rejected the appellant’s downward departure request because it found the incident was not “isolated.” The appellant argues the trial court misinterpreted the term where it found evidence the appellant’s past ATV riding with Kameron after drinking rendered this incident not isolated. He argues it had to be isolated because he had no prior or uncharged DUIs. Recently, this Court declined to consider an appeal from an order denying downward departure. See Wilson v. State, 306 So. 3d 1267 (Fla. 1st DCA 2020). In Wilson, the trial court considered 4 the evidence for downward departure and rejected the request, finding the defendant’s conduct was not isolated. Because the trial court understood its discretion and declined to exercise it, the panel in Wilson concluded it lacked authority to review the trial court’s decision to deny. Id. at 1273. Conflict was certified with decisions from the Second, Fourth, and Fifth District Courts of Appeal. Id. This case presents a similar scenario to Wilson. The trial court appropriately recognized its discretion and engaged in an analysis of the factors involved in said discretion. The court declined to impose a downward departure sentence because it found the appellant’s conduct was not isolated. Under Wilson, we lack authority to review this decision. Even if we were to consider the merits, the trial court acted within its discretion. While an extensive criminal record would preclude a finding of isolation, the reverse is not necessarily true. Absence of a criminal record does not mandate the trial court to find an incident isolated. The trial court heard evidence from the appellant’s family and friends that he had a history of drinking heavily; that he often drove with his son on the back of his ATV to the friend’s house; that he had previously ridden ATVs with Kameron while drinking; and that he did so in violation of the ATV warnings that cautioned against passengers and driving while drinking. In addition, the friend testified there was drinking that night, and the appellant admitted to having drinks earlier in the day. The trial court properly concluded that the appellant’s reckless behavior had occurred more than one time, which allowed it to find the incident was not isolated. Cf. State v. Strawser, 921 So. 2d 705, 707 (Fla. 4th DCA 2006) (finding multiple incidents involving one of the victims over a period of time precluded finding the offense was an isolated incident). The trial court appropriately understood its discretion and applied it to deny the motion for downward departure. We affirm the appellant’s sentence. III. We agree with the appellant that the written judgment and sentence improperly indicated he was sentenced to thirty-eight days in jail on the DUI with property damage charge. It also improperly indicated that he was adjudicated guilty on the DUI 5 charge and was sentenced to thirty-eight days in jail on that charge as well. The oral pronouncement of a sentence controls over the written sentencing order. Hall v. State, 105 So. 3d 642, 644 (Fla. 1st DCA 2013). In its oral pronouncement, the trial court appropriately recognized the appellant could not be convicted for DUI due to double jeopardy. Further, the court orally imposed a fine, but no jail sentence, on the DUI with property damage charge. The written judgment and sentence is remanded with instructions to strike the conviction and sentence for DUI and to strike the thirty-eight-day jail sentence for DUI with property damage. AFFIRMED in part, REVERSED in part, and REMANDED. OSTERHAUS and JAY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Jessica J. Yeary, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Damaris E. Reynolds, Assistant Attorney General, Tallahassee, for Appellee. 6