Smith v. State
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT July Term 2009 ANTONIO ANTWAN SMITH, Appellant, v. STATE OF FLORIDA, Appellee. No. 4D08-1981 [August 5, 2009] PER CURIAM. Affirmed. DAMOORGIAN and GERBER, JJ., concur. GROSS, C.J., specially concurring. Appellant was convicted of violating section 782.071(1)(b), Florida Statutes (2008), a vehicular homicide aggravated by leaving the scene of the accident, so that the crime was a first degree felony. This was a close case on the issue of appellant s recklessness, a necessary element of the crime. On that issue, we are bound by McCreary v. State, 371 So. 2d 1024 (Fla. 1979), a case involving slightly less egregious facts than those in this case. I also note that appellant might well have been charged under section 316.027(1)(b), Florida Statutes (2008), also a first degree felony, which does not require proof of recklessness. * * * Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Larry Schack, Judge; L.T. Case No. 562006CF1725A. Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant. Bill McCollum, Attorney General, Tallahassee, a n d Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee. Not final until disposition of timely filed motion for rehearing.
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