Velazquez v. State

561 So.2d 347 (1990)


D met the deceased Adalberto Alvarez at a Hardee's restaurant in Hialeah, Florida. The two had never previously met, but in the course of their conversation agreed to race each other in a 'drag race' with their respective automobiles. They left the restaurant and proceeded to set up a quarter-mile 'drag race' course on a nearby public road which ran perpendicular to a canal alongside the Palmetto Expressway in Hialeah; a guardrail and a visible stop sign stood between the end of this road and the canal. The two men began their 'drag race' at the end of this road and proceeded away from the canal in a westerly direction for one-quarter mile. Upon completing the course without incident, the deceased suddenly turned his automobile 180 degrees around and proceeded east toward the starting line and the canal; D did the same and followed behind. Alvarez attained an estimated speed of 123 m.p.h.; he was not wearing a seat belt, and subsequent investigation revealed that he had a blood-alcohol level between .11 and .12. D who had not been drinking, trailed Alvarez the entire distance back to the starting line and attained an estimated speed of 98 m.p.h. As both drivers approached the end of the road, they applied their brakes, but neither could stop. Alvarez, who was about a car length ahead of D, crashed through the guardrail first and was propelled over the entire canal, landing on its far bank; he was thrown from his car upon impact, was pinned under his vehicle when it landed on him and died instantly from the resulting injuries. D also crashed through the guardrail but landed in the canal where he was able to escape from his vehicle and swim to safety uninjured. D was charged by information with the crime of vehicular homicide. D filed a motion to dismiss this information under Fla.R.Crim.P. 3.190(c)(4) on the ground that the undisputed material facts in the case demonstrated that the state did not, as a matter of law, have a prima facie case of vehicular homicide against D. The trial court denied the motion to dismiss. D subsequently entered a plea of nolo contendere and reserved for appeal the denial of his motion to dismiss; the trial court then placed D on four years probation. This appeal followed.