Robert Velazco v. State of Florida

Supreme Court of Florida
____________

No. SC20-506
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ROBERT VELAZCO,
Petitioner,

vs.

STATE OF FLORIDA,
Respondent.

June 30, 2022

POLSTON, J.

Petitioner Robert Velazco argues that his convictions for

driving under the influence causing damage to property and serious

bodily injury to a person under section 316.193(3)(c), Florida

Statutes (2014), are degree variants of the same criminal offense so

that double jeopardy is violated. We agree.

Because the convictions are variants of the same offense

under section 775.021(4)(b)2., Florida Statutes (2014), we hold that

his dual convictions for both offenses as to the same victim arising

from a single episode violate the prohibition against double
jeopardy. Accordingly, we quash the underlying Third District

Court of Appeal’s decision in Velazco v. State, 305 So. 3d 72 (Fla. 3d

DCA 2020), and approve the certified direct conflict decision of

Anguille v. State, 243 So. 3d 410 (Fla. 4th DCA 2018), to the extent

it is consistent with this decision.1

I. BACKGROUND

In 2014, Velazco drove his pickup truck through a red light

and collided with a scooter operated by Alexander Concepcion

Rodas. Rodas sustained serious bodily injuries, and his scooter

was also damaged. Velazco fled the scene, but police soon after

made contact with Velazco at his residence where he exhibited signs

of alcohol impairment. Velazco’s breath alcohol test results

exceeded the legal limit, and his urine sample tested positive for

cocaine. Velazco was charged with leaving the scene of a crash

involving serious bodily injury, driving under the influence (DUI)

causing serious bodily injury, DUI causing damage to property or

person, and failure to obey a traffic control device. The DUI causing

1. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We
decline to address the non-conflict evidence issue.

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serious bodily injury count alleged that Velazco caused serious

bodily injury to Rodas, and the DUI causing damage to property or

person count alleged that Velazco caused damage to the property or

person of another, i.e., “damage to the motorcycle and/or scooter

and/or moped of” Rodas. Velazco proceeded to trial and was found

guilty as charged and sentenced accordingly.

On appeal, Velazco challenged his dual convictions under two

subsections of section 316.193, which provides in relevant part:

(3) Any person:

(a) Who is in violation of subsection (1);

(b) Who operates a vehicle; and

(c) Who, by reason of such operation, causes or
contributes to causing:

1. Damage to the property or person of another
commits a misdemeanor of the first degree, punishable
as provided in s. 775.082 or s. 775.083.

2. Serious bodily injury to another, as defined in s.
316.1933, commits a felony of the third degree,
punishable as provided in s. 775.082, s. 775.083, or s.
775.084.

§ 316.193(3). Velazco was convicted of DUI causing damage to

property or person in violation of section 316.193(3)(c)1. (a first-

degree misdemeanor) and DUI causing serious bodily injury in

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violation of section 316.193(3)(c)2. (a third-degree felony). Velazco

argued that his dual convictions arising from a single episode

violate double jeopardy.

The Third District affirmed, holding that Velazco’s convictions

did not violate double jeopardy. Velazco, 305 So. 3d at 82. The

Third District concluded that the offenses of DUI causing damage to

property or person and DUI causing serious bodily injury satisfied

the same-elements test set forth in section 775.021(4)(a) and that

none of the three exceptions to the same-elements test set forth in

section 775.021(4)(b) applied. Velazco, 305 So. 3d at 78-81. As to

the degree-variant exception in section 775.021(4)(b)2., the Third

District concluded that “a faithful textualist approach to

interpretation belies the proposition that the offenses ‘are degrees of

the same offense as provided by statute’ ” because “the legislature

chose not to classify any DUI-related crimes by ‘degree.’ ” Velazco,

305 So. 3d at 79 (quoting § 775.021(4)(b)2.). The Third District

further “conclude[d] that, as the resultant injuries are entirely

distinguishable and do not overlap, ‘neither offense is an aggravated

form of the other,’ and the crimes do not constitute degree-

variants.” Id. at 81 (quoting Valdes v. State, 3 So. 3d 1067, 1077

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(Fla. 2009)). The Third District also certified direct conflict with the

Fourth District Court of Appeal’s decision in Anguille, which held

that “where there is a single victim and the charges arise from a

single episode, dual convictions for DUI with serious bodily injury

and DUI with property damage . . . violate the prohibition against

double jeopardy” because the offenses “are degrees of the same

offense.” 243 So. 3d at 411, 415.

Judge Emas dissented from the Third District’s holding in

Velazco “that principles of double jeopardy do not prohibit dual

convictions and sentences for DUI property damage/bodily injury

and DUI serious bodily injury arising from the commission of a

single act.” Velazco, 305 So. 3d at 82 (Emas, C.J., concurring in

part and dissenting in part). Applying double jeopardy principles

and this Court’s precedent construing section 775.021(4)(b)2.,

Judge Emas “conclude[d] that these two offenses are degree-variant

offenses and aggravated forms of the basic DUI offense.” Id. at 82-

83. The dissent reasoned that, “[a]lthough the language of the [DUI]

statute may not include use of the term ‘degree’ to distinguish these

offenses,” the statute’s “framework nonetheless evinces a ‘degree

relationship.’ ” Id. at 87. The dissent also explained that the DUI

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statute provides graduated imprisonment sentences, increased

fines, and other escalating penalties based on the existence and

establishment of certain aggravating conduct. Id. at 87-88.

Accordingly, Judge Emas concluded that DUI causing damage to

property or person and DUI causing serious bodily injury “are

degree-variant offenses and aggravated forms of the basic DUI

offense”; therefore, the two offenses satisfy the degree-variant

exception in section 775.021(4)(b)2., and “double jeopardy bars

convictions and sentences for both offenses.” Id. at 82, 89.

II. ANALYSIS

Velazco argues that his convictions and sentences for DUI

causing damage to property or person and DUI causing serious

bodily injury violate double jeopardy because the two offenses are

degree variants of the same offense under section 775.021(4)(b)2.2

2. Velazco does not argue and we do not address whether his
convictions violate the Blockburger v. United States, 284 U.S. 299
(1932), same-elements test as codified in section 775.021(4)(a),
Florida Statutes.

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We agree and quash the Third District’s decision below to the extent

it is inconsistent with this decision. 3

It is well-settled that multiple convictions arising from a single

violation of the DUI statute do not violate double jeopardy where

injury results to several persons. See Melbourne v. State, 679

So. 2d 759, 765 (Fla. 1996) (“The DUI driver may sustain multiple

convictions because the violation causes injury to each victim.”).

However, Velazco’s dual convictions arise out of a single act of

driving under the influence, running into a single victim, and

causing serious bodily injury to the victim and damage to the

victim’s scooter. Velazco argues that his convictions are

impermissible under the second statutory exception to the same-

elements test, 4 section 775.021(4)(b)2., which prohibits dual

3. “Double jeopardy claims based on undisputed facts present
questions of law and are subject to de novo review.” Graham v.
State, 207 So. 3d 135, 137 (Fla. 2016).

4. Section 775.021(4) states in its entirety:

(a) Whoever, in the course of one criminal
transaction or episode, commits an act or acts which
constitute one or more separate criminal offenses, upon
conviction and adjudication of guilt, shall be sentenced
separately for each criminal offense; and the sentencing
judge may order the sentences to be served concurrently

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convictions for “[o]ffenses which are degrees of the same offense as

provided by statute.”

The Third District in Velazco concluded that the dual offenses

are not degree variants or aggravated forms of each other because

“the DUI statute omits any reference to ‘degree,’ and delineates

varying penalties for separate, distinct, non-overlapping harms.”

305 So. 3d at 80. However, we have explained that a statute need

not use the word “degree” for the degree-variant exception to apply.

See Valdes, 3 So. 3d at 1076 (“It is not necessary for the Legislature

to use the word ‘degree’ in defining the crime in order for the degree

variant exception to apply. There are other statutory designations

or consecutively. For the purposes of this subsection,
offenses are separate if each offense requires proof of an
element that the other does not, without regard to the
accusatory pleading or the proof adduced at trial.
(b) The intent of the Legislature is to convict and
sentence for each criminal offense committed in the
course of one criminal episode or transaction and not to
allow the principle of lenity as set forth in subsection (1)
to determine legislative intent. Exceptions to this rule of
construction are:
1. Offenses which require identical elements of
proof.
2. Offenses which are degrees of the same offense as
provided by statute.
3. Offenses which are lesser offenses the statutory
elements of which are subsumed by the greater offense.

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that can evince a relationship of degree—for example, when a crime

may have aggravated forms of the basic offense.”). And since

Valdes, this Court’s analysis of whether two offenses are degree

variants of each other under section 775.021(4)(b)2. has not

focused on whether the offenses cause “separate, distinct, non-

overlapping harms.” See Valdes, 3 So. 3d at 1068-69, 1076-77

(abandoning the “primary evil” test that considered offenses to be

degree variants of the same core offense where both crimes

intended to punish the same primary evil). Instead, we have

considered factors such as whether the offenses are located in the

same statute, share a common name, contain similar formal

elements, and criminalize similar conduct. See, e.g., State v.

Maisonet-Maldonado, 308 So. 3d 63, 71 (Fla. 2020) (concluding that

the offenses of fleeing or eluding and vehicular manslaughter “are

clearly not degree variants of each other because they do not share

a common name, contain very different formal elements, and exist

in completely different chapters of Florida Statutes”); State v.

Marsh, 308 So. 3d 59, 62 (Fla. 2020) (“As to the second exception,

we have explained that this exception only applies when a criminal

statute itself provides for an offense with multiple degrees, which

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may be evidenced by the location within Florida Statutes and

whether the offenses are aggravated forms of one another or are

explicitly designated as degree variants.”); Tambriz-Ramirez v. State,

248 So. 3d 1087, 1096 (Fla. 2018) (concluding that the crimes of

burglary, assault, and sexual battery are not degrees of the same

offense because they “are different offenses, prohibited by different

statutes, and they criminalize different conduct”).

The dual offenses of DUI causing damage to property or

person and DUI causing serious bodily injury are both located in

the DUI statute. The statutory language and framework of the DUI

statute evinces a degree relationship. See Valdes, 3 So. 3d at 1076

(stating that a crime that has aggravated forms of the basic offense

“can evince a relationship of degree”); see also Velazco, 305 So. 3d

at 88 (Emas, C.J., concurring in part and dissenting in part).

Subsection (1) of section 316.193 sets forth the elements of the

basic DUI offense:

(1) A person is guilty of the offense of driving under
the influence and is subject to punishment as provided in
subsection (2) if the person is driving or in actual
physical control of a vehicle within this state and:

(a) The person is under the influence of alcoholic
beverages, any chemical substance set forth in s.

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877.111, or any substance controlled under chapter 893,
when affected to the extent that the person’s normal
faculties are impaired;

(b) The person has a blood-alcohol level of 0.08 or
more grams of alcohol per 100 milliliters of blood; or

(c) The person has a breath-alcohol level of 0.08 or
more grams of alcohol per 210 liters of breath.

§ 316.193(1), Fla. Stat. (2014). Subsections (2), (3), and (4)

delineate varying penalties for certain aggravating conduct. For

example, repeat violations of the DUI statute correspond with

increased fines and increased terms of imprisonment. See, e.g.,

§ 316.193(2)(a) (providing for a $500-$1,000 fine and up to six

months’ imprisonment for a first conviction and a $1,000-$2,000

fine and up to nine months’ imprisonment for a second conviction).

Other provisions increase the amount of fines and terms of

imprisonment based on certain factors present during the DUI

episode. See, e.g., § 316.193(4) (providing for increased fines and

terms of imprisonment if the person, while driving under the

influence, had a blood-alcohol level or breath-alcohol level of 0.15

or higher, or was accompanied by a minor); see also Velazco, 305

So. 3d at 87-88 (Emas, C.J., concurring in part and dissenting in

part) (explaining that the DUI statute provides “graduated

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imprisonment sentences (six months, nine months, one year, five

years, fifteen years, thirty years), increased fines ($500-$1000,

$1000-$2000, $2000-$4000, $4000 or more), and other escalating

penalties (e.g., restriction, suspension or revocation of driving

privileges) based upon the existence and establishment of certain

aggravating conduct”).

Relevant to this case, section 316.193(3) contains several

provisions detailing certain aggravating conduct with corresponding

increases in punishment as the harm caused by the DUI driver

increases:

(3) Any person:

(a) Who is in violation of subsection (1);

(b) Who operates a vehicle; and

(c) Who, by reason of such operation, causes or
contributes to causing:

1. Damage to the property or person of another
commits a misdemeanor of the first degree, punishable as
provided in s. 775.082 or s. 775.083.

2. Serious bodily injury to another, as defined in s.
316.1933, commits a felony of the third degree,
punishable as provided in s. 775.082, s. 775.083, or s.
775.084.

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3. The death of any human being or unborn child
commits DUI manslaughter, and commits:

a. A felony of the second degree, punishable as
provided in s. 775.082, s. 775.083, or s. 775.084.

b. A felony of the first degree, punishable as
provided in s. 775.082, s. 775.083, or s. 775.084, if:

(I) At the time of the crash, the person knew, or
should have known, that the crash occurred; and

(II) The person failed to give information and render
aid as required by s. 316.062.

§ 316.193(3) (emphasis added).

Velazco was convicted of DUI causing damage to property or

person in violation of section 316.193(3)(c)1. 5 and DUI causing

serious bodily injury in violation of section 316.193(3)(c)2. Both

offenses are found in the same subsection of the DUI statute, one

5. Section 316.193(3)(c)1. is an “alternative conduct” statute,
meaning “a statute that proscribes conduct in the alternative.”
Roughton v. State, 185 So. 3d 1207, 1210 (Fla. 2016). The statute
can be violated by causing property damage or bodily injury. See
§ 316.193(3)(c)1. “[W]hen considering a statute that proscribes
conduct in the alternative (offenses that can be committed in more
than one way), the [double jeopardy] analysis must consider the
entire range of conduct prohibited by the statute[], not the specific
conduct charged or proven at trial.” State v. Maisonet-Maldonado,
308 So. 3d 63, 70-71 (Fla. 2020) (quoting Tambriz-Ramirez v. State,
248 So. 3d 1087, 1094 (Fla. 2018)).

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after another. See § 316.193(3)(c)1.-2.; see also Gil v. State, 118

So. 3d 787, 794 (Fla. 2013) (concluding that driving with a

suspended license under section 322.34(2), Florida Statutes (2009),

and unlawful driving as a habitual traffic offender under section

322.34(5) qualified as variant offenses and noting as one

consideration the fact that the offenses were located in the same

statute). DUI causing serious bodily injury (a third-degree felony) is

also a more serious offense than DUI causing damage to property or

person (a first-degree misdemeanor). See Valdes, 3 So. 3d at 1076

(explaining that an aggravated form of a basic offense can evince a

relationship of degree, with “degree” meaning “a level based on the

seriousness of an offense”). Further, the two offenses contain

nearly identical elements. Common to both offenses is the

requirement that a person first commit the basic DUI offense set

forth in subsection (1). See § 316.193(3)(a). DUI causing damage to

property or person requires the defendant to operate a vehicle,

while under the influence, and by reason of such operation, cause

damage to the property or person of another. See § 316.193(3)(c)1.

DUI causing serious bodily injury requires the defendant to operate

a vehicle, while under the influence, and by reason of such

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operation, cause serious bodily injury to another. See

§ 316.193(3)(c)2. The lone difference between the two offenses, as

Judge Emas explained below, is the final aggravating conduct—the

seriousness of the resulting harm, which “when viewed in the

context of section 316.193, most clearly establishes that the instant

offenses meet the degree-variant exception and compels the

conclusion that felony DUI serious bodily injury and DUI bodily

injury/property damage are merely aggravated forms of the basic

DUI offense.” Velazco, 305 So. 3d at 87-88 (Emas, C.J., concurring

in part and dissenting in part); see also Anguille, 243 So. 3d at 415

(“The separation of the enhancements for serious bodily injury from

personal injury or property damage delineates the degree of the

offense for which the defendant can be convicted, for the

causational damage inflicted upon one victim for the offense of

DUI.”).

III. CONCLUSION

Because the criminal offenses of DUI causing damage to

property or person and DUI causing serious bodily injury are degree

variants of the same offense under section 775.021(4)(b)2., we hold

that dual convictions for both offenses as to the same victim arising

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from a single episode violate the prohibition against double

jeopardy. We quash the Third District’s decision in Velazco as to

the double jeopardy issue, approve the Fourth District’s decision in

Anguille to the extent it is consistent with this opinion, and remand

for proceedings consistent with this opinion.

It is so ordered.

CANADY, C.J., and LABARGA, LAWSON, MUÑIZ, COURIEL, and
GROSSHANS, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.

Application for Review of the Decision of the District Court of Appeal
Certified Direct Conflict of Decisions

Third District – Case No. 3D18-165

(Miami-Dade County)

Michael Mirer, Miami, Florida,

for Petitioner

Ashley Moody, Attorney General, Tallahassee, Florida, Michael W.
Mervine, Bureau Chief, and Kseniya Smychkouskaya, Assistant
Attorney General, Miami, Florida,

for Respondent

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