Hertzschuch v. State

FLETCHER, Judge. George Hertzsehuch appeals the circuit court’s dismissal of his petition for writ of prohibition in which he contended that it would be double jeopardy for the county court to try him on four counts of driving under the influence of alcoholic beverages with property damage (to four separate vehicles) during one continuous driving episode [DUI]. We affirm the circuit court’s dismissal of the petition. [53] The information charging the four DUI counts alleged that Hertzschuch operated a motor vehicle under the influence of alcohol and while doing so did damage to four vehicles parked on the street, in violation of section 316.193(3), Florida Statutes (1995). All four vehicles were struck in one driving maneuver, with Hertzschuch’s vehicle coming to a stop a short distance from the last vehicle struck. Hertzschuch moved to dismiss the information, alleging a violation of his double jeopardy rights, contending that he would be punished multiple times for the same offense. The county court denied his motion to dismiss and he then petitioned the circuit court seeking the issuance of a writ prohibiting the county court from trying him on the four DUI counts. The circuit court dismissed his petition and he filed this appeal. While this appeal was pending, the Florida Supreme Court undertook to review Melbourne v. State, 655 So.2d 126 (Fla. 5th DCA 1995), a case in which Melbourne caused the death of two persons and injury of a third in a single driving episode and was convicted of multiple DUI counts. As does Hertzschuch here, Melbourne contended that the multiple convictions arising from one continuous driving episode violate double jeopardy. The district court rejected the contention. The Florida Supreme Court approved the result, holding that a DUI driver may receive multiple convictions arising from injury to each of multiple victims. Melbourne v. State, 679 So.2d 759 (Fla.1996). Although Hertzschuch is here charged with separate DUI property damage counts, we see no distinction that would lead us to conclude other than the Florida Supreme Court has done in relation to DUI injury to persons. Accordingly, the circuit court’s dismissal of Hertzschuch’s petition for writ of prohibition is affirmed.