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Sims v. State3/5/2004
e Sims could possibly have stopped his vehicle.
The second DCA has issued two opinions indicating, as suggested above, that there must be a nexus between the crime for which the defendant is convicted, and the victim injury or death points assessed. In Geary v. State, 675 So.2d 625 (Fla. 2d DCA 1996), the court relied on the wording in section 927.001(7)(a) (quoted above) and rule 3.702(d)(5) (discussed above), which both require that the injury or death be a direct result of the offense pending for sentencing in order to assess injury points. The court concluded in that case, that because the defendant's leaving the scene of an accident did not cause the injury, injury points would not be assessed. It reasoned that had the defendant stayed at the scene, the injury would have occurred in any event. Although the court did not state the facts in the case, it similarly concluded in Rodriguez v. State, 684 So.2d 864 (Fla. 2d DCA 1996) that in order to assess injury points against a defendant for leaving the scene of an accident resulting in death, there must be evidence that death was caused by, or was a direct result of, the defendant's leaving the scene of the accident.
The error in this case, I think, was caused by the trial court's view of this case as "the flip side of a DUI/manslaughter." The judge commented that Sims left the scene of the accident to avoid being charged with manslaughter because he had been smoking cocaine and had consumed an alcoholic beverage, and he was "impaired." The difficulty with this approach is that Sims was not charged with nor convicted of manslaughter or DUI, and there was no evidence in this record that Sims was impaired.
Had Sims been charged with and convicted of manslaughter or DUI in connection with this accident, clearly the imposition of points for the victim's death would be appropriate. See Martinez v. State, 692 So.2d 199 (Fla. 3d DCA 1997). But the rule and statute both require that the death or injury must be a direct result of the "primary offense," to authorize assessment of victim injury points. Absent a conviction for manslaughter or DUI causing a death or injury as the primary offense, as in this case, both the rule and statute require a causal or result connection with the death and the leaving the scene of the accident offense.
This case is in the same posture as if Sims had been charged and tried for manslaughter or DUI, but the jury acquitted him of that charge because the accident was unavoidable and not his fault, yet it convicted him of leaving the scene. Rule 3.704(d)(9) mandates that no victim injury points should be assessed for a crime for which a defendant has not been convicted.
In sum, had the state presented evidence that Sims' leaving the scene of the accident, the only crime for which he was convicted, caused in part or in full the death of the victim, then I would agree with assessing victim injury points in this *52 case. Situations can be imagined where victim injury points should be assessed. For example, a driver who hits and knocks a person from a bicycle, leaving the person in the road, injured, who is later run over by another car and killed. The problem with the precedent of assessing victim injury points in this case is that it is difficult to image any case in the future where victim injury points will not be assessed where a person is run over and killed by a vehicle in an accident, and the errant driver flees the scene. In my view, that is contrary to the wording of the statute and rules which require a "direct result" relationship.
Fla.App. 5 Dist.,2004.
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