Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT LADEDRICK LEON HARRIS, ) ) Appellant, ) ) v. ) Case No. 2D19-4266 ) 2D19-4577 STATE OF FLORIDA, ) ) CONSOLIDATED Appellee. ) ___________________________________) Opinion filed May 12, 2021. Appeal from the Circuit Court for Lee County; Robert J. Branning, Judge. Leonard S. Feuer of Leonard Feuer, P.A., West Palm Beach, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee. SILBERMAN, Judge. In these consolidated appeals, Ladedrick Leon Harris challenges the orders revoking his probation and the resulting sentences in circuit court case 01-CF- 002278 and circuit court case 16-CF-000337. The basis for the revocation is an alleged new law offense of reckless driving. He raises four issues on appeal, and issue two is dispositive. Therefore, we do not reach the other issues he raises. Because the State failed to prove by the preponderance of the evidence that Harris committed reckless driving, we reverse and remand for the trial court to reinstate Harris's probation. The State alleged a violation of probation in each circuit court case based on the new law offense of reckless driving. At the single revocation hearing on both cases, the State presented witness testimony in addition to an officer's dashcam recording that showed Harris speeding. The video shows Harris's pickup truck from the time it approached the area where the officer's patrol car was parked well off the roadway to the time when the officer conducted a traffic stop of Harris at 8:55 a.m. on July 17, 2019. The officer clocked Harris's speed with his radar gun at ninety-four miles per hour (mph). The speed limit was forty mph. The road Harris was traveling on has four lanes and a divided median, with two northbound lanes and two southbound lanes. The officer described the east side of the road as residential and the west side as residential with a mix of houses of worship and a park in "the 300 block." The officer was positioned that day "at the 500 block" in a vacant field on the east side of the roadway. The officer saw Harris's vehicle traveling northbound on the east side in the outside lane. The weather was clear and the road was straight. Harris was neither swerving nor weaving out of his lane. The only people visible on the video were two landscaping workers in the median. Harris was not traveling in the lane next to the median. Another vehicle was traveling on the same side of the street as Harris, but it was in the other lane just moments before Harris's vehicle came into view. The video also shows that one car pulled into a driveway on the other side of the street. -2- The officer testified that before he saw Harris's vehicle, he observed two people walking southbound on the sidewalk. A grass strip separates the road from the sidewalk. Harris was traveling in the lane next to the sidewalk, and the video shows no one was on the sidewalk at that time. Before the officer saw Harris's vehicle, he saw people in the area getting out of their vehicles and going into their homes. The video shows cars parked in driveways, not on the street. The officer decided to make a traffic stop based on Harris's speed. The officer was able to catch up with Harris's truck in less than a minute. Harris slowed down as he approached an intersection, put on his flashing lights, and turned onto a side street where he could pull over safely. Harris cooperated with the officer and told the officer that he had been headed to work and that he was late for work. The trial court found that Harris committed a willful and substantial violation of his probation. The only explanation the court gave was that it found a violation "given the nature of the defendant's driving conduct." To prove a violation of probation, the State must demonstrate by the greater weight of the evidence that the probationer committed a willful and substantial violation. See Savage v. State, 120 So. 3d 619, 621 (Fla. 2d DCA 2013). We review the trial court's determination on this issue for competent, substantial evidence. Id. Reckless driving occurs when a person "drives any vehicle in willful or wanton disregard for the safety of persons or property." § 316.192(1)(a), Fla. Stat. (2019). " 'Willful' means intentionally, knowingly[,] and purposely," and " '[w]anton' means with a conscious and intentional indifference to consequences and with knowledge that damage is likely to be done to persons or property." Smith v. State, 218 -3- So. 3d 996, 998 (Fla. 2d DCA 2017) (alterations in original) (quoting Fla. Std. Jury Instr. (Crim.) § 28.5). "In determining whether a defendant was driving recklessly, the essential inquiry is whether the defendant knowingly drove the vehicle in such a manner and under such conditions as was likely to cause . . . harm." Id. (alteration in original) (quoting Stracar v. State, 126 So. 3d 379, 381 (Fla. 4th DCA 2013)). When the State proves only that a defendant drove carelessly, it is insufficient to prove reckless driving under the statute. Id. To be considered reckless driving, the defendant "must have engaged in intentional conduct demonstrating a conscious disregard of a likelihood of death or injury." State v. Desange, 294 So. 3d 433, 437 (Fla. 2d DCA 2020).1 In making the determination of whether a defendant was driving negligently or recklessly, "each case involving charges like these turns on its own specific facts." Id. at 438 (citing Natal v. State, 278 So. 3d 705, 707 (Fla. 4th DCA 2019), review denied, No. SC19-1617, 2020 WL 777663 (Fla. Feb. 18, 2020)). In Natal, "the Fourth District held that 'his grossly excessive speed alone, given the area where he was driving, was sufficiently reckless' to support a conviction." Id. at 439 (quoting Natal, 278 So. 3d at 708). However, this court pointed out that speeding by itself is insufficient to prove recklessness: Our court, along with others, has recognized that merely speeding, without any other facts or circumstances demonstrating recklessness as distinguished from negligence, is insufficient to support a conviction of vehicular homicide. See House v. State, 831 So. 2d 1230, 1233 (Fla. 2d DCA 2002); Hamilton v. State, 439 So. 2d 238, 238-39 1Cases dealing with vehicular homicide are relevant to our analysis because an element of vehicular homicide is that the defendant was driving recklessly. See Desange, 294 So. 3d at 437. -4- (Fla. 2d DCA 1983). Here, of course, there clearly are other factors and circumstances contributing to Mr. Desange's reckless driving. Desange, 294 So. 3d at 439 n.3. Harris was traveling more than fifty mph over the speed limit, but our legislature has made speeding in excess of fifty mph over the speed limit a civil infraction that is a moving violation. See §§ 316.1926(2), 318.14(1), Fla. Stat. (2019). In Luzardo v. State, 147 So. 3d 1083, 1089 (Fla. 3d DCA 2014), the court refused to rest its decision on "excessive speed alone." There, Luzardo was traveling 83.9 mph in a 55 mph zone at the entrance to Gator Park on the Tamiami Trail. Id. at 1084. The appellate court determined that "speeding on a straight road in sunny weather with clear visibility in combination with the attempt to avoid a vehicle which inexplicably turned and braked in the defendant's path" was insufficient to prove recklessness for a vehicular homicide conviction. Id. at 1089. In Miller v. State, 636 So. 2d 144, 150-51 (Fla. 1st DCA 1994), the court discussed factors that are relevant here. Miller, who was estimated to be traveling fifteen to twenty mph in excess of the speed limit, was driving at 8:00 a.m. with light to moderate traffic, "with possibly one or two runners and bicyclists." Id. at 151. He "had control of his vehicle," and "his speed decreased as he approached the intersection so that it was within the normal flow of traffic." Id. The appellate court determined that the trial court should have granted Miller's motion for judgment of acquittal on the charge of reckless driving. Id. Although Harris was traveling at a more excessive rate than Miller, Harris had control of his vehicle and there were few people and little traffic in the area. -5- When the officer pursued Harris, Harris slowed down as he approached the intersection and safely stopped on a side street. The State relies upon Natal, in which the Fourth District concluded that Natal's "grossly excessive speed alone, given the area where he was driving, was sufficiently reckless that the court properly denied the motion for judgment of acquittal." 278 So. 3d at 708 (emphasis added). Natal had been charged with vehicular homicide, but the jury found him guilty of reckless driving. Id. at 705, 707. The State presented evidence that Natal was driving eighty-two to eighty-five mph in an area with a speed limit of forty mph. Id. at 706. He was in a "mixed residential/commercial neighborhood" where one witness was pulling into his driveway and pedestrians were at a bus stop "standing by the roadway waiting for a bus." Id. at 707. Natal was accelerating as he approached an intersection and did not lift his foot from the throttle until two seconds before he broadsided a van that was turning left. Id. at 706. Thus, additional circumstances were present as well as excessive speed. In contrast to the present case, the facts in Desange involved excessive speed and egregious conduct. In Desange, the defendant had been driving eighty-two mph in an area with a speed limit of forty-five mph. 294 So. 3d at 436. In addition to his speeding and other factors, the defendant raced another vehicle in heavy traffic, drove "in and out of traffic," used bicycle and turn lanes to pass other vehicles, and sideswiped a car and did not stop. Id. at 438. This court determined that the trial court erred in granting a judgment of acquittal notwithstanding the verdict on charges of vehicular manslaughter and reckless driving and reversed and remanded for reinstatement of the jury's verdict. Id. at 441. -6- Here, Harris was traveling at an excessive speed of ninety-four mph in a forty mph zone because he was late for work. He was traveling on a four-lane road with a median in a mostly residential area. He was driving during the day without evidence of swerving within his lane, without evidence of weaving outside his lane, and without evidence of actually endangering traffic or pedestrians. Two landscaping workers who were in the median were not next to Harris's lane of travel. And significantly, the video showed no pedestrians or bicyclists on either sidewalk or on the road. Once the officer pulled out to stop Harris, Harris slowed considerably as he approached the intersection. The video shows that Harris stopped safely at the intersection and then turned onto a side street where he pulled over safely. Although Harris's excessive speed is clearly concerning and constitutes a civil infraction that is a moving violation, his excessive speed alone was insufficient to prove recklessness. See Desange, 294 So. 3d at 439 n.3. The State failed to present competent, substantial evidence that circumstances in addition to Harris's speeding showed that he was acting "with a conscious and intentional indifference to consequences and with knowledge that damage is likely to be done to persons or property." Smith, 218 So. 3d at 998 (quoting Fla. Std. Jury Instr. (Crim.) § 28.5). Therefore, we reverse the orders revoking Harris's probation and the resulting sentences and remand for probation to be reinstated in both circuit court cases. Reversed and remanded. CASANUEVA and MORRIS, JJ., Concur. -7-