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Bonine v. State3/28/2002
tself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict.
The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful. (emphasis in original)
Thus, Bonine's conviction possibly based on one invalid legal alternative cannot be sustained merely because of overwhelming evidence, on the valid ground. See Mackerley v. State, 777 So.2d 969 (Fla. 2001)(harmless error rule cannot be applied when a defendant is convicted by general verdict of first degree murder on the theories of premeditation and felony murder but the felony underlying the felony murder charge is based on a legally unsupportable theory even though there is evidence to support the jury's finding of premeditation); Tricarico (defendant convicted of first-degree murder based on either premeditation or felony murder was entitled to a new trial where felony murder theory was invalid; overwhelming evidence of premeditated murder does not eliminate the doubt as to which of the two theories the jury rested its decision).
Our sister court has reached the same conclusion in a case factually similar to this one. In Cameron v. State, 804 So.2d 338 (Fla. 4th DCA 2001), the defendant collided with another boat while driving his at a high rate of speed, killing six people. Blood drawn from the defendant 45 minutes after he was taken to the hospital indicated a blood alcohol level of .21. He was charged with six counts of manslaughter while operating the boat under the influence of alcohol, six counts of manslaughter with an unlawful blood alcohol level and other criminal charges. The jury found him guilty on all counts.
The state did not opt to adduce the blood alcohol tests results complying with the testing procedures set forth in section 327.354(3), and thus the statutory presumption was not available. The court noted that the boating statutes track the motor vehicle statutes. Thus, pursuant to State v. Miles, the trial court erred in instructing the jury on the statutory presumptions of impairment. With regard to the DUI counts, it explained that it could not find beyond a reasonable doubt the error had no affect on the jury verdict, because all the DUI counts required the jury to find the defendant was operating the boat under the influence of alcohol:
The erroneous jury instruction told the jury to presume that fact. Clearly it was prejudicial. On these counts only therefore, the defendant is entitled to a new trial.
The court distinguished the UBAL manslaughter counts because the statutory presumption instruction was not given with regard to them.
Accordingly, we vacate Bonine's judgment and sentence and remand for a new trial. We also certify a conflict with McBride.
Judgment and Sentence VACATED; REMANDED; CONFLICT Certified.
THOMPSON, CJ., PETERSON, GRIFFIN and SAWAYA, JJ., concur.
PLEUS J., concurring and concurring specially with opinion.
HARRIS, J., dissenting with opinion, in which COBB, PALMER and ORFINGER, R.B., JJ., concur.
PLEUS, J., concurring and concurring specially.
This case is yet another example of the problems arising from the majority opinion in State v. Miles, 775 So. 2d 950 (Fla. 2000). The defendant was charged with one count of DUI manslaughter, which can be established under either of two theories -- impairment or unlawful blood alcohol level. As the dissen
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