10-29-2010 Release OPINIONS 08-1640 IVEY V. STATE PCAs

State: Florida

Court: Florida Third District Court

Docket No: 08-1640

Case Date: 10/29/2010

Preview:Third District Court of Appeal
State of Florida, July Term, A.D. 2010
Opinion filed October 29, 2010. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D08-1640 Lower Tribunal No. 06-2197 ________________

Mark David Ivey,
Appellant, vs.

The State of Florida,
Appellee. An Appeal from the Circuit Court for Miami-Dade County, Marisa Tinkler Mendez, Judge. Carlos J. Martinez, Public Defender, and J. Rafael Rodriguez, Specially Appointed Public Defender, for appellant. Bill McCollum, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee. Before RAMIREZ, C.J., and COPE and GERSTEN, JJ. PER CURIAM. Mark David Ivey ("the defendant") appeals his conviction and sentence for vehicular homicide, DUI manslaughter, and leaving the scene of a fatal accident. We reverse in part, and affirm in part.

While on the interstate, the defendant struck a vehicle and continued driving. After the impact, the other vehicle hit a retaining wall, killing the driver. Florida Highway Patrol investigated, determined that the defendant was drunk, and arrested him. The State charged and tried the defendant on one count each of vehicular homicide, DUI manslaughter, and leaving the scene of a fatal accident. The jury returned a verdict of guilty to all charges. The trial court adjudicated the defendant on all three counts, but sentenced him only on the DUI manslaughter to 22 years in prison, followed by 5 years probation. The defendant appealed. On appeal, the defendant asserts that the constitutional prohibition against double jeopardy bars his conviction on all three counts based on a single death. On the other hand, the State contends that adjudicating the defendant on all three counts while sentencing him only on one does not violate the double jeopardy clause. Both the federal and Florida constitutions protect against being put in jeopardy for the same offense twice. U.S. Const. amend. V; Art. I,

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