The Fourth District Court of Appeal handed down quite a few reversals in criminal cases last week, with Santisteban v. State, No. 4D09-229, the most unusual one I’ve read in a while. The decision addresses 3 uncommon issues: (1) Is it proper for a judge presiding over a civil suit to also preside over a criminal prosecution arising from the same incident? (2) Can vehicular homicide be proven without showing that the driver was speeding, under the influence, disobeying a traffic sign, or breaking some other obvious traffic rule? (3) Can a sentence below the guidelines be challenged based on the judge’s reference to religious traditions during sentencing?
Santisteban was the driver of a tanker truck who caused a tragic accident on the ramp from I-595 onto the Florida Turnpike (near the Fort Lauderdale-Hollywood International Airport). Witnesses testified that he was driving fast on the ramp, cutting off one car before losing control of his truck, which eventually flipped over and skidded.
Unlike more typical vehicular homicide cases, Santisteban didn’t crash into another vehicle or run over a pedestrian or bicyclist. But he was driving a tanker truck full of gasoline, and the gasoline spilled on the roadway and caught fire.
The car that Santisteban had passed on the ramp tried to brake but skidded and drove into the flames, even though it stopped before reaching the truck itself. The car caught fire and all four passengers were killed.
Santisteban survived, was charged with four counts of vehicular homicide, and was also sued in a civil case by the survivors of the four victims. His criminal case went to trial, and he was convicted on all four counts, and sentenced to 36 years in state prison.
Broward Circuit Judge Streitfeld (a well-respected jurist) was assigned to the civil case, and another judge was originally assigned to the criminal case. But Judge Streitfeld volunteered to take over the criminal trial because his docket was clear during the week it was scheduled for, and he already was familiar with the case. After realizing that the judge had already ruled in the civil case that Santisteban’s conduct was suffiiciently negligent to allow the plaintiffs to pursue punitive damages, the defense moved to recuse the judge, but he denied the motion.
The 4th DCA upheld that conclusion. That holding is fairly unremarkable, as the defense didn’t file signed certifications of the client and counsel in support of the recusal motion, which are required for all such motions under Rule 2.330 of the Florida Rules of Judicial Administration. It’s also extremely rare for a judge to be recused based on the fact that he/she has ruled against a party on a legal issue. If it were otherwise, every time a judge issued a pre-trial ruling against a party, that party could claim that the judge was biased and should be recused.
The 4th DCA’s resolution of the second issue is less straightforward. In fact, in upholding the defendant’s vehicular homicide convictions, the court appears to have created something of a new standard, in which the dangerousness of the defendant’s vehicle can be considered in setting the standard of care.
Reckless driving is an element of vehicular homicide, so it must be proven beyond a reasonable doubt to sustain such a conviction:
The crime of vehicular homicide is defined as the killing of a human being “caused by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another.” § 782.071, Fla. Stat. (2004). The degree of culpability required for vehicular homicide is…more than a mere failure to use ordinary care. McCreary v. State, 371 So. 2d 1024, 1026 (Fla. 1979). Vehicular homicide cannot be proven without also proving the elements of reckless driving, which requires proof of a “willful or wanton disregard for the safety of persons or property.” See State v. Del Rio, 854 So. 2d 692, 693 (Fla. 2d DCA 2003); § 316.192(1), Fla. Stat.
In this case, unlike most other vehicular homicide (and reckless driving) cases, the defendant wasn’t driving under the influence of alcohol or drugs, didn’t disobey a traffic sign or light, fail to equip his vehicle with safety devices, and wasn’t even speeding.
But the 4th DCA took a more holistic view of the circumstances to determine that Santisteban’s conduct was reckless. Although the 2nd DCA has adopted a rule that the driver’s speed alone isn’t enough to show recklessness, the 4th DCA hasn’t. Where Santisteban goes a step farther is that the “speed” the court considered wasn’t even over the legal limit, despite exceeding a posted advisory speed limit (which, it turns out, is not a violation for which a driver can be ticketed).
What made his driving reckless was a combination of driving well above the advisory limit (at a speed that caused him to lose control) on a curving ramp, weaving and cutting off one driver and overtaking another. But the kicker appears to have been the fact that he was driving a truck that was filled with 9,000 gallons of gasoline, such that an accident could predictably lead to the death of others. In other words, if you are driving in a more dangerous vehicle, you are expected to drive more carefully than a driver of a less dangerous one.
Santisteban‘s sentencing holding is also noteworthy. Few defendants succeed in having their sentences vacated by arguing that a trial judge who downwardly departed from the guidelines sentencing range erred by not departing even farther. But Santisteban did just that.
Why? Because in imposing the sentence the judge referenced (one year less than the guideline minimum of 36 years), Judge Streitfeld made a reference to the fact that the length of the sentence fit well with the religious traditions of the victims.
Even though the sentence itself was permissible, and below the guidelines, the judge’s remarks suggested that he considered a constitutionally impermissible factor in determining the sentence. “Having found a valid ground for departure, the court nevertheless made what was essentially an insignificant departure to bring the sentence within a religious precept.”
As such, the 4th DCA concluded, this “defect in the sentencing process” required that the sentence be vacated, with a different judge to preside over sentencing on remand.