Bonine v. State3/28/2002
Appeal from the Circuit Court for Citrus County, Patricia Thomas, Judge.
EN BANC
Bonine challenges his DUI/manslaughter conviction which arose out of an incident in which he struck and killed a motorcyclist with his vehicle. We elect to consider this case en banc to determine whether we should apply the harmless error rule, given the overwhelming evidence of guilt. We conclude that the harmless error rule cannot be applied and accordingly remand for a new trial.
Bonine was charged with DUI/manslaughter, pursuant to section 316.193. The jury instructions were that he could be found guilty based on one of two theories:
1) Bonine was driving while under the influence of alcoholic beverages to the extent that his faculties were impaired, or
2) he had a blood alcohol level of 0.08 or higher.
The jury was also instructed as to the statutory presumption of impairment in section 316.1934. This was clearly erroneous pursuant to State v. Miles, 775 So.2d 950 (Fla. 2000). In similar cases, we have recently rejected the state's request to find such error to be harmless. Bass v. State, 801 So.2d 975 (Fla. 5th DCA 2001); Servis v. State, 802 So.2d 359 (Fla. 5th DCA 2001). We write now to more fully explain our rationale.
Application of the harmless error rule in this situation depends on whether the case involves "insufficiency of proof," i.e., a mistake about the weight or factual import of the evidence, or "legal error," i.e., a mistake about the law. A general guilty verdict must be set aside where the conviction may have rested on an unconstitutional ground or a legally inadequate theory and there is no way to determine which ground the jury relied upon. However, reversal is not warranted where the general verdict could have rested on a theory of liability without adequate evidentiary support when there was an alternative theory of guilt for which the evidence was sufficient. Griffin v. United States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991); Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957), overruled in part on other grounds, Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Delgado v. State, 776 So.2d 233 (Fla. 2000); Teffeteller v. Dugger, 734 So.2d 1009 (Fla. 1999); Mungin v. State, 689 So.2d 1026 (Fla.1995), cert. denied, 522 U.S. 833 (1997); Tricarico v. State, 711 So.2d 624 (Fla. 4th DCA 1998); Mosely v. State, 682 So.2d 605 (Fla. 1st DCA 1996).
In Griffin, the Court explained its rationale for making this distinction:
Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law--whether, for example, the action in question is protected by the Constitution, is time barred, or fails to come within the statutory definition of the crime.
When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error. Quite the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory, since jurors are well equipped to analyze the evidence, see Duncan v. Louisiana, 391 U.S. 145, 157, 88 S.Ct. 1444, 1451, 20 L.Ed.2d 491 (1968). As the Seventh Circuit has put it:
It is one thing to negate a verdict that, while supported by evidence, may have been based on an erroneous view of the law; it is another to do so merely on the chance--remote, it seems to us--that the jury convicted on a ground that was not supported by adequate evidence when there existed alternative grounds for which the eviden
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