author: SHAW, Judge.

text:
    Jason Larry ROBERTS v. STATE of Alabama.
    CR-00-2134.
    Court of Criminal Appeals of Alabama.
    Nov. 22, 2002.
    Rehearing Denied Jan. 24, 2003.
    Certiorari Denied May 2, 2003 Alabama Supreme Court 1020708.

      Steven Speakman, Auburn, for appellant.
    William H. Pryor, Jr., atty. gen., and Robin Blevins, asst. atty. gen., for appel-lee.
   SHAW, Judge.

Jason Larry Roberts appeals an order of the circuit court directing him to pay $12,166.25 in restitution to the parents of Andrea Michelle Danford. Roberts was convicted of criminally negligent homicide, a violation of § 13A-6^1, Ala.Code 1975, for the shooting death of Ms. Danford. The circuit court sentenced Roberts to one year in prison, imposed a $2,000 fine, and ordered him to pay restitution to Ms. Dan-ford’s parents (hereinafter “the parents”) for expenses they had incurred in cleaning their daughter’s automobile ($825) and for various funeral and funeral-related expenses ($11,341.25).

Roberts argues that the parents were not entitled to any restitution because they accepted a $100,000 payment from his insurance carrier in settlement of a potential wrongful-death action, see § 6-5-410, Ala. Code 1975, before the restitution hearing and they had agreed to release all of their claims against him. The circuit court rejected this argument, concluding that the release in the civil case was not a defense to restitution in the criminal case and that no portion of the settlement payment could be attributed to, and therefore credited against, the parents’ pecuniary damages that were proven at the restitution hearing. For the following reasons, we agree with the circuit court’s conclusion that a previous settlement in a civil case does not necessarily release a defendant from his or her obligation to pay restitution. We also conclude that under the particular circumstances of this case, a setoff of the civil settlement against the pecuniary damages established by the parents at the restitution hearing was not appropriate. Therefore, we affirm the restitution order.

As noted, the restitution order followed the settlement of a wrongful-death claim the parents had asserted against Roberts. Before trial, the parents settled with Roberts’s insurance carrier for $100,000 and signed a general release discharging Roberts from liability for

“any and all claims, demands, damages, costs, expenses, loss of services, actions, and causes of actions arising from any act or occurrence, up to the present time, and particularly [on] account of all personal injury, disability, property damage, loss of services and loss or damages of any kind sustained or that [they] hereafter may sustain in consequence of an accident that occurred on or about the 21st day of November, 1999....”

(Supp. C. 9.)

Roberts does not appeal his conviction. The dispositive issues on appeal concern the legal effect of the civil settlement and the release of the parents’ civil-damages claim. Roberts maintains that the circuit court erred in ordering any restitution. Specifically, he argues that, because his insurance carrier paid the parents an amount substantially in excess of what they actually claimed in expenses incurred in connection with their daughter’s death, the parents suffered no pecuniary loss for which restitution could be made. Stated differently, Roberts argues that the circuit court should have credited the insurance proceeds against the parents’ expense claims and, furthermore, that the release barred the court from ordering any restitution. The State contends that the civil settlement and the accompanying release had no effect on the court’s statutory authority to order the restitution as part of Roberts’s sentence.

The right of crime victims to receive restitution is set forth in the Restitution to Victims of Crimes Act, § 15-18-65 et seq., Ala.Code 1975 (“the Act”). Several sections of the Act are pertinent to our discussion of the issues presented here. Section 15-18-65, Ala.Code 1975, states:

“The Legislature hereby finds, declares and determines that it is essential to be fair and impartial in the administration of justice, that all perpetrators of criminal activity or conduct be required to fully compensate all victims of such conduct or activity for any pecuniary loss, damage or injury as a direct or indirect result thereof. The provisions of this article shall be construed so as to accomplish this purpose and to promote the same which shall be the public policy of this state.”

“Pecuniary damages” is defined in § 15-18-66(2), Ala.Code 1975, as follows:

“All special damages which a person shall recover against the defendant in a civil action arising out of the facts or events constituting the defendant’s criminal activities; the term shall include, but not be limited to the money or other equivalent of property taken, broken, destroyed, or otherwise used or harmed and losses such as travel, medical, dental or burial expenses and wages including but not limited to wages lost as a result of court appearances.”

“Victim” is defined in § 15-18-66(4), Ala. Code 1975, as:

“Any person whom the court determines has suffered a direct or indirect pecuniary damage as a result of the defendant’s criminal activities. “Victim’ shall not include any participant in the defendant’s criminal activities.”

Section 15-18-75, Ala.Code 1975, provides:

“Nothing in this article limits or impairs the right of a person injured by a defendant’s criminal activities to sue or recover damages from the defendant in a civil action. Evidence that the defendant has paid or has been ordered to pay restitution pursuant to this article may not be introduced in any civil action arising out of the facts or events which were the basis for the restitution. However, the court shall credit any restitution paid by the defendant to a victim against any judgment in favor of the victim in such civil action.
“If conviction in a criminal trial necessarily decides the issue of a defendant’s liability for pecuniary damages for a victim, that issue is conclusively determined as to the defendant, if it is involved in a subsequent civil action.”

Section 15-18-78, Ala.Code 1975, states:

“(a) A restitution order in a criminal case shall be a final judgment and have all the force and effect of a final judgment in a civil action under the laws of the State of Alabama. The victim on whose behalf restitution is ordered, the executor or administrator of the victim’s estate, or anyone else acting on behalf of the victim, shall be entitled to all the rights and remedies to which a plaintiff would be entitled in a civil action under the laws of this state as well as any other right or remedy pertaining to such restitution order as may be provided by law.
“(b) The provisions of this section shall be read and deemed in pari mate-ria with other provisions of law. Provided however, the provisions of this section are cumulative and shall not be construed so as to deprive any victim of any other remedy or relief to which a victim may now or hereafter be entitled pursuant to law.”

The legislative purpose underlying the Act, as evidenced by the plain language of § 15-18-65, was to fully compensate victims of crime for “any pecuniary loss, damage or injury” suffered as a direct or indirect result of a criminal act. See Butler v. State, 608 So.2d 773 (Ala.Crim.App.1992), and Gladden v. State, 644 So.2d 1267 (Ala. Crim.App.1993). In Ex parte Clare, 456 So.2d 357, 358 (Ala.1984), the Alabama Supreme Court stated:

“The Court of Criminal Appeals states that included in the concept of special damages is the right to receive punitive damages. This, however, is incorrect. The purpose of the above-cited statute, as announced by the legislature, is to ensure
“ ‘... that all perpetrators of criminal activity or conduct be required to fully compensate all victims of such conduct or activity for any pecuniary loss, damage or injury as a direct or indirect result thereof....’ (Emphasis added.)
“Code 1975, § 15-18-65 (1982 Repl.Vol.). These special damages, then, are based on the theory of compensation. In Birmingham Waterworks Co. v. Keileyl, 2 AlaApp. 629, 56 So. 838 (1911)], the Court of Appeals discussed the issue of damages, and stated:
‘Actual damages are recoverable at law, out of a wrongdoer by the injured party as a matter of right as compensation for the actual loss sustained by him by reason of such wrong. Punitive damages are damages over and above such sum as will compensate a person for his actual loss, and the law permits their imposition, in proper cases, at the discretion of the jury, not because the party injured is entitled to them as matter of right, but as punishment to the wrongdoer, and to deter him and others in similar businesses from such wrongdoing in the future.’
2 AlaApp. 629, 637, 2 AlaApp. 629, 56 So. 838, 841 (1911), citing Oliver v. Columbia, N. & L. R.R. Co., 65 S.C. 1, 43 S.E. 307 (1902). The legislative intent of the restitution statute is to compensate, and not to punish. We, therefore, hold that the special damages that the victim is entitled to in this case are limited to an amount which fully compensates the victim, and these damages may not be punitive in nature.”

Although the purpose of restitution is to effectuate the compensation of a crime victim and although a restitution order has all the force and effect of a final judgment in a civil action in Alabama, it is nonetheless clear that the Legislature intended that restitution remain an integral part of traditional criminal sentencing. Thus, this Court has held that the Legislature, in providing for civil enforcement of a restitution order, did not intend to make restitution a civil action. Restitution is not subject to the requirements of a civil adjudication merely because it is enforceable in the same manner as a civil judgment. See Rice v. State, 491 So.2d 1049 (Ala.Crim. App.1986).

Furthermore, although compensation to the victim may have been the primary purpose of the Restitution Act, it was certainly not the sole purpose. Section 15-18-68(3), Ala.Code 1975, states that “[t]he anticipated rehabilitative effect on the defendant regarding the manner of restitution or the method of payment” is another important criterion for determining the manner, method, or amount of restitution. Thus, one of the practical objectives of the Act is to force a wrongdoer to recognize the consequences of his or her actions and to accept the financial responsibility for those consequences. It is significant, we think, that restitution is fundamentally different from civil damages. The Restitution Act authorizes restitution as an incident to criminal prosecution. See Piggly Wiggly No. 208, Inc. v. Dutton, 601 So.2d 907 (Ala.1992); see also § 15-18-67, Ala. Code 1975 (“the court shall hold a hearing to determine the amount or type of restitution due the victim or victims of such defendant’s criminal acts” and “the court shall order that the defendant make restitution or otherwise compensate such victim for any pecuniary damages”).

The statutes and cases referenced above, although informative, do not specifically instruct the courts with respect to how a payment to the victim by the defendant’s insurance carrier and a corresponding release should affect restitution, if at all. The Restitution Act does specifically permit awarding restitution to a crime victim in addition to any civil remedies that may exist. However, the Act provides that “the court shall credit any restitution paid by the defendant to a victim against any judgment in favor of the victim in such civil action.” § 15-18-75; see also § ■ 15-18 — 78(b), and Moore v. State, 706 So.2d 265 (Ala.Crim.App.1996). Of course, glaringly absent from § 15-18-75 is a provision authorizing the court to credit a civil settlement or a civil judgment against an amount of pecuniary damages that may be subsequently ascertained in a restitution hearing. This omission apparently prompted this Court in Patterson v. State, 518 "So.2d 809 (AIa.Crim.App.1987), to state:

“The appellant argues that the trial court improperly denied his trial motion to receive credit for insurance proceeds paid to the victim’s parents as a result of a civil settlement on this case citing § 15-18-75. The appellant has presented no evidence other than his allegation in brief that the insurance company paid the victim’s family any settlement. Under § 15-18-75 [the] appellant was not entitled to offset the amount of restitution by the amount of the settlement paid, and, furthermore, there was no proof of any civil settlement.”

518 So.2d at 816 (emphasis added).

Because the converse of the situation expressly addressed in § 15-18-75 is not discussed in that Code section, or in any other provision of the Act, Roberts argues that we should revisit our decision in Patterson v. State and hold § 15-18-75 to be ambiguous and that we should then construe that section as authorizing the setoff that he seeks. On the other hand, the State, arguing that the statute is clear on its face, takes the position that the apparent rationale underlying the aforementioned statement from Patterson v. State, supra, should control here.

Based on our examination of the Act, we conclude that restitution is not a claim that belongs to the victim; it is an important measure that the circuit court is statutorily obligated to employ as part of criminal sentencing — a measure that has both salutary remedial and rehabilitative characteristics. Restitution is a part of the criminal sentence rather than merely a debt between the defendant and the victim. Although one of the purposes of restitution is to make the victim whole, payment of restitution also advances the rehabilitative purposes of sentencing. For these reasons, and because the State was not a party to the release between Roberts and the parents, the release did not prevent the circuit court from ordering restitution to the parents. Private parties cannot settle a civil claim and thereby agree to waive the subsequent application of a criminal statute. Our conclusion in this respect is consistent with decisions from other jurisdictions that have considered this issue. See, e.g., State v. Iniguez, 169 Ariz. 533, 821 P.2d 194 (Ct.App.1991); State v. Walters, 224 Wis.2d 897, 591 N.W.2d 874 (Ct.App. 1999); State v. Applegate, 266 Kan. 1072, 976 P.2d 936 (1999); Abeyta v. State, 42 P.3d 1009 (Wyo.2002); People v. Maxich, 971 P.2d 268 (Colo.Ct.App.1998); and State v. Kirby, 818 So.2d 689 (Fla.Dist.Ct. App.2002). We find the following discussion in People v. Bernal, 101 Cal.App.4th 155, 160-63, 123 Cal.Rptr.2d 622, 625-28 (2002), to be particularly persuasive:

“Although the record is ambiguous, it appears that the trial court based its ruling that respondent had satisfied his restitution obligation on the probation report, which stated: ‘[T]he defendant may be relieved of any restitution owed through probation if the victim signed any waiver forms from defendant’s insurance.’ The trial court received a release signed by Russell ‘with respondent’s name on it.’
“We agree with appellant’s contention that the written release did not abrogate respondent’s restitution obligation because (1) a release by a victim cannot waive the People’s right to have a defendant pay restitution ordered as part of his sentence, [and] (2) the victim would be in an untenable position if he or she had to reject a settlement offer from a defendant’s insurance company that covers only a portion of the victim’s losses in order to preserve the uncertain possibility that the full amount might be recovered from the defendant....
“A restitution order has objectives beyond simply indemnifying the victim. It also seeks to rehabilitate the defendant and deter [the] defendant and others. (.People v. Crow (1993) 6 Cal.4th 952, 957, 26 Cal.Rptr.2d 1, 864 P.2d 80.) ‘Among other things, California’s restitution law ensures that amends are made to society for a breach of the law, serves a rehabilitative purpose, and acts as a deterrent to future criminality. [Citations.] Restitution “is an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his actions have caused. Such a penalty will affect the defendant differently than a traditional fine, paid to the State as an abstract and impersonal entity, and often calculated without regard to the harm the defendant has caused. Similarly, the direct relation between the harm and the punishment gives restitution a more precise deterrent effect than a traditional fine.” [Citations.]’ (People v. Moser (1996) 50 Cal.App.4th 130,135-136, 57 Cal.Rptr.2d 647.)
“While a settlement agreement with, and-release of, a defendant’s insurance company may reflect a victim’s willingness to accept the amount paid in full satisfaction for all civil liability, it does not reflect the willingness of- the People to accept that sum in satisfaction of the defendant’s rehabilitative and deterrent debt to society. A restitution order pursuant to a defendant’s plea is an agreement between the defendant and the state. (People v. Pitts (1990) .223 Cal. App.3d 606, 872, 273 Cal.Rptr. 757.) The victim is not party to the agreement, and a release by the victim cannot act to release a defendant from his financial debt to the state any more than it could terminate his prison sentence.
“Furthermore, the amount ordered as restitution need not mirror what a victim might obtain in a civil action. ‘There is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable, nor is there any requirement the order reflect the amount of damages that might be recoverable in a civil action.... ’ (People v. Carbajal (1995) 10 Cal.4th 1114, 1121, 43 Cal. Rptr.2d 681, 899 P.2d 67.) Since the categories of loss recoverable by restitution and the dollar amounts ordered are not identical to the defendant’s civil liability, there is no reason that a release of civil liability should release a restitution obligation, just as a satisfied restitution obligation does not bar a civil action for further damages....
“As appellant points out, even the statutory goal of fully reimbursing the victim’s losses might be undermined if a civil settlement with a defendant’s insurance carrier barred further restitution. A victim might rationally choose to accept an insurance settlement for substantially less than his or her losses rather than risk the uncertain, or even unlikely, possibility that the defendant will pay the entire restitution amount. If a settlement release automatically terminated a defendant’s restitution obligation, the victim would lose all possibility of ever being made whole.”

(Footnotes omitted.)

As noted initially, the primary purpose of the Act is to effectuate the full compensation of the victim for certain pecuniary damages, as defined in § 15-18-66(2). Obviously the Legislature’s objective was to ensure that the victim could receive full compensation for certain losses as part of the criminal sentencing proceeding. However, in creating a procedure by which to “fully compensate” a victim, the Legislature arguably did not intend for the victim to receive more compensation from the defendant than would actually satisfy the stated goal of full compensation, at least within the limits defined in the Act. Another, and perhaps more difficult question courts in other jurisdictions that have similar restitution acts have recognized concerns the amount of restitution that is statutorily authorized when the victim has already received some compensation in a civil proceeding. By way of example only, we quote from State v. Walters, supra, in which the Wisconsin Court of Appeals addressed the issue thusly:

“In determining the amount of restitution, a court may require a defendant to pay only special damages sustained by the victim, which are substantiated by evidence in the record. A court is prohibited from ordering restitution for any general damages of the victim. Section 973.20(5)(a), Stats.; State v. Stowers, 177 Wis.2d 798, 804-05, 503 N.W.2d 8, 10 (Ct.App.1993). This limitation restrains the circuit court from assessing restitution for damages intended to generally compensate the victim for such things as pain and suffering, anguish or humiliation. Id. However, any readily ascertainable pecuniary expenditure paid out because of the crime is appropriate as special damages. Id. Medical expenses and lost earnings are types of special damages. Id. at 805, 503 N.W.2d at 10.
“A restitution order does not limit or impair the right of a victim to sue for civil damages; however, the amount of restitution paid to a victim in a criminal proceeding may be a setoff against a like amount in the judgment in a companion civil case. See § 973.20(8), Stats.; Olson v. Kaprelian, 202 Wis.2d 377, 383, 550 N.W.2d 712, 715 (Ct.App.1996). No Wisconsin appellate case has directly addressed whether a payment in a civil case can be a setoff against either the total amount of special damages found by the court or against the amount of restitution ordered at the conclusion of a restitution hearing. The supreme court indicated in [State v.J Sweat [, 208 Wis.2d 409, 561 N.W.2d 695 (1997),] that a setoff is appropriate for the circuit court to consider, but it did not discuss how to apply it. In addressing this choice, we consider where a setoff will best promote the State’s dual purposes of achieving its penal objectives and making the victim whole for the special damages sustained. We conclude that those legislative objectives will be best served by applying any setoff which a circuit court determines is appropriate to the total amount of special damages which the victim has sustained.
“But how does the circuit court determine whether a setoff of any amount is appropriate? In [State v.] Behnke [, 203 Wis.2d 43, 553 N.W.2d 265 (Ct.App. 1996)], we examined a defense raised to limit the amount of the victim’s medical expenses which the defendant could be ordered to pay. We declined to make the reduction Behnke requested because we determined he had the burden of establishing facts sufficient to justify the circuit court’s lowering the amount of medical expenses he should be required to pay, and he had failed to meet that burden. We explained that:
“ ‘[B]efore the trial court can accurately assess a defense recognized by our law of civil litigation, the defendant must present a tangible record with which the trial court can exercise its discretion. Here, while Behnke articulated his dual legal theories, he did not point to any specific facts from which the trial court could have grounded the downward adjustment he desired.’
“Behnke, 203 Wis.2d at 58-59, 553 N.W.2d at 272-73. The allocation of the burden of proof in a restitution proceeding because of payments made in a companion civil proceeding has not been addressed by a Wisconsin appellate court, but it has been addressed by federal courts under the Victim and Witness Protection Act (VWPA), on which Wisconsin’s restitution statute is based, in part. For example, in United States v. Sheinbaum, 136 F.3d 443 (5th Cir.1998), the court concluded that because the defendant had the strongest incentive to litigate whether a setoff should be afforded during a restitution proceeding, the burden of proof on that issue should lie with the defendant. Id. at 448. We find the reasoning of Sheinbaum persuasive. Therefore, based on Behnke and the reasoning from Sheinbaum, we conclude that Walters had the burden of proving facts sufficient to prevail on the defense she raised, that of setoff. Because Olivas suffered general, as well as special damages, that burden required Walters to prove what part, if any, of the $25,000 payment made to Olivas was paid for special damages.
“At the restitution hearing on February 6, 1998, the circuit court found that Olivas had proven $40,835.17 in special damages. In reasoning whether some part, or all of the $25,000 should be deducted from that amount, the circuit court stated:
“ ‘There is a second issue raised and that is whether the amount of settlement paid previously to the Olivases by Ms. Walters should be deducted in some manner from that total [special damages]....
“ ‘You could say that [settlement] money was all applied to the expenses, but it is really, it’s land of mixing apples and oranges.’
“The circuit court considered whether some of the $25,000 was paid for general damages, which the court found had been incurred, but for which damages the record was insufficient to determine their amount. It also considered whether a setoff of the $25,000 was due against the total amount of Olivas’s special damages; or whether a setoff of that payment against some combination of the two types of damages was warranted. It reasoned that because the testimony had established general damages of an indeterminate amount, it would be unfair to make a setoff of the $25,000 settlement entirely against Olivas’s special damages.
“We conclude the circuit court was correct in refusing to make a setoff. Walters had the burden of proving what portion of the $25,000 payment was made for special damages, because in this case the record before the court showed that Olivas had suffered both general and special damages. However, Walters provided no such proof; therefore, the circuit court had no choice but to conclude that none of the payment should be applied against special damages. Accordingly, we affirm the $24,000 of restitution ordered.”

224 Wis.2d at 905-09, 591 N.W.2d at 877-79 (footnote omitted). For other examples of how appellate courts have approached this issue, see State v. Iniguez, supra; State v. Applegate, supra; State v. Belfry, 416 N.W.2d 811 (Minn.App.1987); People v. Salas, 42 P.3d 68 (Colo.App.2001); but see People v. Clifton, 172 Cal.App.3d 1165, 219 CaLRptr. 904 (1985).

Roberts argues that his $100,000 settlement payment to Ms. Danford’s parents, which compromised the parents’ wrongful-death claim, must be deemed, as a matter of law, to have fully compensated the parents for the pecuniary loss found by the circuit court at the restitution hearing. However, we find it unnecessary to address in this case the application of cases like Walters to Alabama’s Restitution Act. As noted, those cases dealt, at least in part, with the problem that arises in determining the amount of restitution that is authorized by statute when the victim has already received some compensation in a civil proceeding. However, the Alabama Supreme Court has consistently held that the only damages that may be awarded by a jury under Alabama’s wrongful-death act are punitive damages. See generally the cases collected at 20 Ala. Digest 2d Death § 93 (1994). Unlike the remedial and rehabilitative purposes underlying restitution in criminal cases, civil damages for wrongful death serve only the purposes of punishing the wrongdoer and deterring others from engaging in similar conduct. In Alabama, damages awarded in a civil wrongful-death action do not compensate.

Because only punitive damages are recoverable in a wrongful-death action, it is reasonable to conclude that Roberts and Ms. Danford’s parents understood that the $100,000 payment made by Roberts’s insurance carrier was in satisfaction of, and therefore compromised, a claim that could have resulted in an award of only punitive damages. In fact, such a conclusion is dictated by the fact that society is viewed to be the true plaintiff in a wrongful-death action. Because there is no private interest involved with respect to the plaintiff, only a public interest, the only private interest is that of the defendant. Because punitive damages are not to compensate a victim for loss but to punish and deter, the State alone is considered the true plaintiff in a wrongful-death action, and in seeking punitive damages a plaintiff acts not as a victim, but as an agent of legislative appointment for declaring the public policy evidenced by the wrongful-death act. See Maryland Casualty Co. v. Tiffin, 537 So.2d 469 (Ala.1988); Geohagan v. General Motors Corp., 291 Ala. 167, 279 So.2d 436 (1973).

In Tatum v. Sobering Corp., 523 So.2d 1042 (Ala.1988), the Alabama Supreme Court recognized this and held, at least implicitly, that the monetary settlement of a wrongful-death claim is characteristically punitive in nature even though not characterized as such by the parties. Writing for the Court in Tatum, Justice Maddox stated:

“In this case, if the plaintiff proves to the jury that the total amount of the punitive damages that should be assessed against the joint tort-feasors exceeds the sum of $450,000, then the $450,000 that the plaintiff has received by way of pro tanto settlements would be a partial satisfaction of the total amount determined by the jury. On the other hand, if the jury determines that the total amount of the plaintiffs punitive damages for the homicide is an amount equal to or less than $450,000, then, in that event, the plaintiff is entitled to recover nothing from alleged joint tort-feasor Schering Corporation, because the plaintiff will have already had his recovery satisfied by the payment of the $450,000 pursuant to the pro tanto settlements.”

523 So.2d at 1045. Dissenting in Tatum, Justice Houston was more direct:

“Since wrongful death damages have been interpreted as being only punitive by prior decisions of this Court, it is evident that the parties to the releases intended for the $400,000 from Mrs. Tatum’s physician and the $50,000 from the drug manufacturer to be punitive damages. Therefore, this should have no effect on any compensatory damages or punitive damages that a jury may award against Schering in the trial of this case.”

523 So.2d at 1063 (Houston, J., dissenting). Former Chief Justice Torbert agreed in part with Justice Houston’s dissent, noting:

“I agree with Justice Houston’s dissent, except that if his view had prevailed, that is, if this Court had been persuaded to allow recovery of compensatory damages for wrongful death, I would not have applied that new holding to this case, but would have applied it only prospectively. I believe that a prospective only application would be necessary because two of the three defendants in this case have settled the claims against them based upon the rule that only punitive damages were recoverable. To change the rules in the middle of this litigation would unfairly place the burden of any award of compensatory damages solely on the shoulders of Schering Corporation, while still leaving that defendant liable for punitive damages.”

523 So.2d at 1046 (Torbert, C.J., concurring in part and dissenting in part).

It is clear that had the parents filed a wrongful-death action against Roberts and obtained a judgment based on a jury’s verdict of $100,000 in punitive damages for the wrongful death of their daughter, no portion of that judgment could be set off against the restitution ordered by the circuit court, even if § 15-18-75 were construed, as Roberts urges, to allow a civil judgment or civil settlement to offset against a subsequent restitution award. We see no logic in concluding, and, indeed, we can find no provision in the Act suggesting, that the Legislature could have intended to allow such a setoff merely because a defendant had the foresight to obtain liability insurance and was successful in negotiating the settlement of a claim for which only punitive damages were recoverable. We certainly appreciate the facial appeal of Roberts’s argument — that the parents could simply reimburse themselves for their pecuniary loss from the settlement proceeds. The $100,000 settlement paid by Roberts’s insurance carrier to the parents, as Roberts points out, was substantially in excess of the sum that would compensate them for their actual loss. In that sense, the settlement payment was fortuitously compensatory. However, the same can be said of all punitive-damages awards in civil cases. See Ex parte Clare, supra, at 358. That is inherent in the historic dichotomy between compensatory and punitive damages — the purpose of punitive damages is to punish and deter undesired conduct and the purpose of compensatory damages is to compensate the injured party for the injury incurred. This dichotomy is clearly evident in this case. In pursuing their wrongful-death claim to a successful settlement, the parents, acting ostensibly on behalf of the State in pursuing a wrongful-death claim, accomplished the policy goals underlying the wrongful-death act — Roberts, through his insurance carrier, was made to pay a substantial sum of money in recognition of, and as punishment for, his actions in causing the tragic death of Ms. Danford. Although that substantial sum may be fortuitously compensatory, in the sense that the parents may spend it as they wish, under Alabama law the payment of that settlement is not considered to have compensated the parents and, thus, it did not negate the mandatory requirement of the Act that the parents be fully compensated for their pecuniary damages. Under the Act the parents are by definition victims of Roberts’s criminal negligence. The circuit court was statutorily authorized to order restitution in an amount that would fully compensate them, as victims, for their pecuniary loss — compensation that, we note, id authorized only by virtue of the Act.

For the foregoing reasons, the circuit court’s restitution order is affirmed.

AFFIRMED.

McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ., concur.

      . The evidence adduced at trial indicated that late in the evening of November 20, 1999, Roberts shot and killed Ms. Danford while she was driving her automobile. Roberts, a backseat passenger in Ms. Danford's automobile at the time, testified in his defense that he was moving his gun from his lap when the gun accidentally discharged. Stacey Truitt was riding in the automobile with Ms. Danford and Roberts. Truitt testified that Ms. Dan-ford twice told Roberts to put the gun away and told him that ''[i]f you were a real man, you wouldn’t need a gun.” (R. 123.) Roberts also testified that Ms. Danford did not like his having the gun in her automobile and that he was putting the gun away when it discharged. He could not explain why the gun had discharged.

      . This Court has also held that a defendant is not entitled to offset the amount of restitution ordered by the amount that may have been paid to the victim by the victim’s insurance carrier. See Varner v. State, 497 So.2d 1135 (Ala.Crim.App.1986) (discussing the application of the collateral source rule to the law of criminal restitution); and Harris v. State, 542 So.2d 1312 (Ala.Crim.App.1989). In a similar vein, this Court has held that a defendant is not entitled to offset the amount of restitution ordered by the amount the victim may have received from the defendant’s accomplice in settlement of a civil action. Butler, 608 So.2d 773. In light of the collateral source rule, these cases stand for the proposition that a wrongdoer cannot benefit by offsetting the amount of his restitution obligation by the amount of a payment made to the victim, if the payment is not made by or on behalf of the wrongdoer.

      . In a dissenting opinion in Alabama Power Co. v. Turner, 575 So.2d 551, 560 (Ala. 1991), Justice Houston noted:
      "A commentator has correctly described the interpretation given our wrongful death act by a majority of this Court:
      'In Alabama an action for wrongful death, if successful, results in an award of punitive damages only. For this reason, the plaintiff may not argue, nor may the jury consider, evidence tending to show that the decedent had an expected lifetime income of any particular amount; that the decedent was exceptionally healthy or sickly; that the death caused someone to incur the expenses of an autopsy, a funeral, and a burial; that lost spousal, parental, or filial consortium had any value; or any other aspect of the decedent's life to which a value might be attached. Rather, the award serves only to further the avowed purposes of punitive damages generally — punishing the defendant, affording a measure of retribution, and deterring others from engaging in conduct similar to that which brought about the decedent's demise. In that sense, the plaintiff acts as the agent of the State, a private district attorney, to vindicate an interest of society and to seek retribution for a harm done to the people. Further, the plaintiff cannot seek, in any measure, compensation for the family or the estate of the decedent. Thus, any award received by the estate is fortuitously compensatory, not intended or designed to be that way. Because only society’s interests are sought to be vindicated in wrongful death actions, and because the victim's estate has no right to be compensated for its loss, the assumption that society reaps the benefit of the jury's award is theoretically sound.'
      "L. King, On Civil Punishment and Tort Reform in Alabama, 20 Cumb.L.Rev. 47, 49-51 (1989) (emphasis original).”
      In King v. National Spa & Pool Institute, Inc., 607 So.2d 1241, 1247 (Ala. 1992), the Alabama Supreme Court noted that "[pjunitive damages are not compensation, and our system should not be contorted to treat them as such.”

      . Although it is not argued otherwise, we note that under Alabama caselaw the parents are clearly "victims” within the meaning of § 15-18-66(4), and that the expenses they claimed fall within the definition of "pecuniary damages” contained in § 15-18-66(2). See. Butler v. State, supra; and Harris v. State, supra.


source: Caselaw Access Project

author: WELLS, J.

license: Public Domain

text:
    In re CONSTITUTIONALITY OF HOUSE JOINT RESOLUTION 25E.
    No. SC03-1912.
    Supreme Court of Florida.
    Dec. 4, 2003.
    Charles J. Crist, Jr., Attorney General, L. Clayton Roberts, Executive Deputy Attorney General, and George L. Waas, Senior Assistant Attorney General, Tallahassee, FL, for Petitioner.
    George N. Meros, Jr. and Jason L. Un-ger of Gray, Harris & Robinson, P.A., Tallahassee, FL; Steven G. Burton and Mark M. Barber of Broad and Cassel, Tampa, FL; and Miguel Degrandy and Stephen M. Cody of Miguel Degrandy, P.A., Miami, FL, for Honorable Johnnie Byrd, Speaker, Florida House of Representatives.
    James A. Scott and Edward J. Pozzuoli of Tripp Scott, P.A., Fort Lauderdale, FL, for Honorable James E. “Jim” King, Jr., President, Florida Senate.
   WELLS, J.

The Attorney General petitions this Court to determine the validity of House Joint Resolution 25E, which readopts and amends section 2 of House Joint Resolution 1987, and apportions three House of Representative districts. We have jurisdiction. See art. Ill, § 16, Fla. Const.

On March 22, 2002, the Florida Legislature passed House Joint Resolution 1987 (HJR 1987), which apportioned the Florida Senate and House of Representatives based on the population figures established in the United States Decennial Census of 2000. Pursuant to article III, section 16(c) of the Florida Constitution, the Attorney General filed a petition for declaratory judgment in this Court, requesting that this Court determine the validity of the redistricting plan. On May 3, 2002, this Court determined that HJR 1987 satisfied the equal protection one-person, one-vote requirement and the state constitutional geographic requirement that legislative districts be either contiguous, overlapping, or identical territory. Thus, this Court declared the resolution valid. In re Constitutionality of House Joint Resolution 1987, 817 So.2d 819 (Fla.2002).

HJR 1987 was also submitted to the United States Department' of Justice (DOJ) for preclearance pursuant to section 5 of the Voting Rights Act, 42 U.S.C. § 1973c (2000). The DOJ precleared the state Senate plan but interposed one objection to the state House plan. The DOJ concluded that proposed House- district 101 was retrogressive within the meaning of section 5 of the Voting Rights Act with respect to Hispanic voters.

In response to the DOJ’s objection, Tom Feeney, as Speaker of the Florida House of Representatives and on behalf of the House, filed a motion for emergency relief in Martinez v. Bush, Nos. 02-20244-JOR-DAN & 02-10028CPV-JORDAN (S.D. Fla. motion filed July 2, 2002), which was pending in the United States District Court for the Southern District of Florida. In his motion, Speaker Feeney requested that the court adopt an interim plan of apportionment for the Florida House of Representatives that would remedy the DOJ’s objection under section 5 of the Voting Rights Act. Speaker Feeney noted that the DOJ’s denial of preclearance rendered the House plan unenforceable as a matter of law. If the court did not exercise its authority to adopt an interim plan, then the 2002 election would be severely disrupted. Speaker Feeney attached a proposed interim plan reapportioning the Florida House so as to address the DOJ’s concerns.

The federal court held an emergency evidentiary hearing on the motion and thereafter granted the motion and enacted Speaker Feeney’s remedial plan, finding that the Speaker’s plan did in fact remedy the section 5 problem with respect to House district 101. Martinez v. Bush, Nos. 02-20244-CIV-JORDAN, 02-10028-CIV-JORDAN (S.D. Fla. order filed July 9, 2002). The plan, as approved, was effective only for the 2002 elections.

On October 20, 2003, the Legislature convened in a special session, during which the House of Representatives considered adopting the interim plan adopted by the federal court in Martinez as a permanent apportionment plan. The House passed House Joint Resolution 25E (HJR 25E) on October 21, 2003. The Senate passed the same resolution on October 24, 2003. This resolution is identical to the interim plan adopted by the federal court in Martinez. On November 4, 2003, the Attorney General filed a petition.for declaratory relief in this Court pursuant to article III, section 16(c) of the Florida Constitution, requesting this Court to determine the validity of HJR 25E.

On November 6, 2003, this Court issued an order inviting all those interested to submit briefs and comments in support of or ojoposition to the plan. This Court received only one comment, which was filed by the Florida Senate and House of Representatives in support of the plan. This Court received no comments in opposition to the plan.

As we recently stated in considering the validity of HJR 1987, the scope of this Court’s review of an apportionment plan created by the Legislature is extremely limited.

[Legislative reapportionment is primarily a matter for legislative consideration and determination. Judicial relief becomes appropriate only when a legislature fails to reapportion according to federal and state constitutional requisites. If these requisites are met, we must refrain, at this time, from injecting our personal views into the proposed reapportionment plan. Even though we may disagree with the legislative policy in certain areas, the fundamental doctrine of separation of powers and the constitutional provisions relating to reapportionment require that we act with judicial restraint so as not to usurp the primary responsibility for reapportionment, which rests with the Legislature.

In re Constitutionality of House Joint Resolution 1987, 817 So.2d at 824 (quoting In re Apportionment Law Senate Joint Resolution No. 1805, 1972 Regular Session, 263 So.2d 797, 799-800 (Fla.1972)). This Court’s review is thus limited to two considerations: (1) whether the plan satisfies the equal protection standard of one-person, one-vote; and (2) whether the plan satisfies the State constitutional requirement that the districts contain contiguous, overlapping, or identical territory. We find that HJR 25E satisfies both of these requirements.

We recently recognized that the Equal Protection Clause requires that state legislatures be apportioned in such a way that each person’s vote carries the same weight — that is, that each legislator represents the same number of voters. In re Constitutionality of House Joint Resolution 1987, 817 So.2d at 826. We make this determination by analyzing the population figures in each district.

HJR 25E differs from previously approved HJR 1987 only with respect to three House districts. In approving HJR 1987, we set forth the relevant population figures for Florida for an equal protection analysis:

Florida’s population is 15,982,378.[] Therefore, the ideal population per single-member House district is 133,186. The most populous House district is District 98, with a total population of 135,-093 — deviating from the ideal population by 1,857 persons, or 1.39%. The least populous House district is District 32, with a total population of 131,310 — deviating from the ideal population by 1,876 persons, or 1.4%. Therefore, the maximum percentage deviation between the largest and smallest number of people per representative (statistical overall range) is 2.79%.

In re Constitutionality of House Joint Resolution 1987, 817 So.2d at 825.

We further recognized in that case that “[e]ven though the districts do not comply precisely with the ideal population per district, ... ‘mathematical exactness is not a requirement in state apportionment plans.’ ” Id. at 826 (quoting In re Senate Joint Resolution 2G, Special Apportionment Session 1992, 597 So.2d 276, 279 (Fla.1992)). The United States Supreme Court has recognized that an apportionment plan with a maximum population deviation under 10% falls within the category of constitutional minor deviations. White v. Regester, 412 U.S. 755, 764, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973).

The changes made to House districts 76,101, and 112 in HJR 25E fall well under the 10% deviation that the Supreme Court recognized as constitutionally valid. District 76 consists of a total population of 132,709 — deviating from the ideal population by 477 persons, or 0.36%. District 101 consists of a total population of 133,642— deviating from the ideal population by 456 persons, or 0.34%. District 112 consists of a total population of 131,626 — deviating from the ideal population by 1560 persons, or 1.17%. We find that the Legislature continues to achieve a mathematical preciseness in the districts, as it accomplished in HJR 1987, and that the apportionment plan thus complies with the equal protection requirements of both the Florida and United States Constitutions. See In re Constitutionality of House Joint Resolution 1987, 817 So.2d at 827 (citing Reges-ter, 412 U.S. at 755, 93 S.Ct. 2332; Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973)).

Our final consideration with respect to the validity of HJR 25E is whether the legislative districts are either contiguous, overlapping, or identical territory. We recently explained this requirement as follows:

This Court has defined “contiguous” as “being in actual contact: touching along a boundary or at a point.” In re Apportionment Law, Senate Joint Resolution IE, 414 So.2d 1040, 1051 (Fla. 1982) (quoting Webster’s New Collegiate Dictionary 245 (1973)). A district lacks contiguity “when a part is isolated from the rest by the territory of another district” or when the lands “mutually touch only at a common corner or right angle.” Id.
Although a contiguous district has been defined as one in which a person can go from any point within the district to any other point without leaving the district, such definition does not impose a requirement of a paved, dry road connecting all parts of a district. Contiguity does not require convenience and ease of travel, or travel by terrestrial rather than marine forms of transportation ....
... [T]he presence in a district of a body of water without a connecting bridge, even if it necessitates land travel outside the district in order to reach other parts of the district, does not violate this Court’s standard for determining contiguity under the Florida Constitution.

In re Constitutionality of House Joint Resolution 1987, 817 So.2d at 827-28 (quoting In re Senate Joint Resolution 2G, 597 So.2d at 279-80). Upon reviewing the changes made to districts 76, 101, and 112, we find that HJR 25E satisfies this constitutional requirement.

Accordingly, we conclude that House Joint Resolution 25E is valid and hereby approve it as the 2004 apportionment of the Florida Legislature.

It is so ordered.

LEWIS, QUINCE, CANTERO, and BELL, JJ., concur. ANSTEAD, C.J., and PARIENTE, J., concur in result only.

      . This case had been filed in the federal court following the passage of HJR 1987. The plaintiffs and intervenors raised several issues challenging the validity of the redistricting legislation under federal law. The federal district court ultimately approved the legislation. See Martinez v. Bush, 234 F.Supp.2d 1275 (S.D.Fla.2002).

      . Population figures are those reported in the United States Decennial Census of 2000, upon which the Legislature based the apportionment plan.


author: BELL, J.

text:
    David BAUTISTA, Petitioner, v. STATE of Florida, Respondent.
    No. SC02-2121.
    Supreme Court of Florida.
    Dec. 4, 2003.

      Carey Haughwout, Public Defender, and David John MePherrin, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Celia Terenzio, Bureau Chief, West Palm Beach, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, FL, for Respondent.
   BELL, J.

We have for review Bautista v. State, 832 So.2d 122 (Fla. 4th DCA 2002), in which the Fourth District Court of Appeal certified the following question as one of great public importance:

DOES THE “A/ANY” TEST ADOPTED IN GRAPPIN V. STATE AND STATE V. WATTS AS THE METHOD FOR DETERMINING THE UNIT OF PROSECUTION FOR THE COMMISSION OF MULTIPLE PROSCRIBED ACTS IN THE COURSE OF A SINGLE EPISODE, PRECLUDE MULTIPLE CONVICTIONS FOR DUI MANSLAUGHTER WHERE MORE THAN ONE DEATH OCCURS IN A SINGLE ACCIDENT AS APPROVED IN MELBOURNE V. STATE?

Bautista^ 832 So.2d at 125. We have rephrased the question to be:

DOES THE “A/ANY” TEST ADOPTED IN GRAPPIN V. STATE AND STATE V. WATTS PRECLUDE MULTIPLE CONVICTIONS OF DUI MANSLAUGHTER WHERE MULTIPLE DEATHS OCCUR IN A SINGLE DUI CRASH?

For the reasons stated below, we answer the certified question in the negative and hold that multiple convictions of DUI manslaughter may arise from multiple deaths in a single DUI crash.

I. BACKGROUND

David Bautista was driving under the influence of alcohol when his vehicle collided with another car, fatally injuring its two occupants. He was convicted on two counts of DUI manslaughter. Bautista appealed, arguing that since the DUI manslaughter statute penalizes the killing of “any human being” rather than “a human being,” the statute does not authorize multiple convictions based on two deaths arising from a single DUI incident. Relying on Melbourne v. State, 679 So.2d 759 (Fla. 1996), where this Court held that multiple convictions arising from a single DUI incident did not violate double jeopardy principles, the Fourth District Court of Appeal affirmed the convictions. The district court concluded that Bautista’s claim, although not based on the principle of double jeopardy, was nonetheless foreclosed by this Court’s language in Melbourne.

II. DISCUSSION

The DUI manslaughter statute, section 316.193(3)(c)(3), Florida Statutes (2002), provides:

Any person:
(a) Who is in violation of subsection (1) [driving under the influence];
(b) Who operates a vehicle; and
(c) Who, by reason of such operation, causes or contributes to causing:
3.The death of any human being commits DUI manslaughter ....

Id. (emphasis added).

Relying on the “a/any” test developed in Grappin v. State, 450 So.2d 480 (Fla.1984), and State v. Watts, 462 So.2d 813 (Fla. 1985), Bautista argues that because the adjective “any” modifies “human being” in the statute, the killing of multiple persons in a single DUI incident constitutes a single offense of DUI manslaughter.

A. The “A/Any” Test

To properly resolve the certified question, we must first trace the history and purpose behind the “a/any” test. In Grap-pin, we were confronted with a decision of the Second District Court of Appeal that was in direct conflict with decisions from two other district courts of appeal. The issue presented was the Legislature’s intended unit of prosecution for the theft of a firearm under subsection (2)(b)(3) of Florida’s general theft statute. § 812.014, Fla. Stat. (1979). Employing what it called “a common sense reading of the plain language of section 812.014(2)(b),” the Second District determined that such a reading demonstrates “that the legislature unmistakably intended for the simultaneous unlawful taking of more than one firearm to be subject to a separate prosecution.” State v. Grappin, 427 So.2d 760, 763 (Fla. 2d DCA 1983) (emphasis added), approved, 450 So.2d 480 (Fla.1984).

Section 812.014(2)(b), Florida Statutes (1979), read as follows:

(b) It is grand theft of the second degree and a felony of the third degree ... if the property stolen is:
1. Valued at $100 or more, but less than $20,000.
2. A will, codicil, or other testamentary instrument.
3. A firearm.
4. A motor vehicle.
5. Any member of the genus Bos (cattle) or the genus Equus (horse), or any hybrid of the specified genera.
6. Any fire extinguisher.
7. Any amount of citrus fruit consisting of 2,000 or more individual pieces of fruit.

(Emphasis added.) The Second District noted that the Legislature’s enactment “prefaced the respective item of property in parts 2 through 4 of subsection (2)(b) with the article ‘a’.... In contrast, it prefaced the respective object of property in parts 5 through 7 with the article ‘any.’ ” Grappin, 427 So.2d at 762-63. The Second District believed the Legislature’s differing use of “a” and “any” was intentional. It stated:

We do not believe that the legislature inadvertently inserted different articles in parts 2 through 4 and 5 through 7. In our view, the legislature’s use of the article “a” in parts 2 through 4 reveals its recognition of the distinction in meaning between the articles “any” and “a” for purposes of establishing the permissible unit of prosecution. In other words, its use of different articles signifies its intent, with respect to simultaneously pilfered firearms ... to treat separately each stick in the bundle.

Grappin, 427 So.2d at 763 (footnote omitted)(emphasis added). The Second District buttressed its determination of legislative intent in two ways. First, it looked at the overall statutory scheme relative to firearms. It found that firearms are subject to strict, comprehensive statutory regulation and that in light of the “strong policy considerations” within this statutory scheme, “it is unreasonable to presume that the legislature intended to make simultaneously stolen firearms (or motor vehicles or testamentary instruments) cheaper by the dozen.” State v. Grappin, 427 So.2d at 763. Secondly, the Second District looked at related cases. It cited several federal cases interpreting the intended unit of prosecution under federal firearm statutes that used either “a” or “any.”

We acknowledged the Second District’s use of a common-sense approach in its interpretation of this statute and approved its decision. In fact, we employed the same common-sense approach in our own interpretation. We acknowledged that the Legislature must fix the punishment for violation of statutes clearly and without ambiguity. If there is ambiguity, we said that the rule of lenity applies to resolve the ambiguity against turning a single transaction into multiple offenses. But we also stated that “[w]here legislative intent as to punishment is clear ... the rule of lenity does not apply.” Grap-pin, 450 So.2d at 482. To reach a common sense interpretation of the legislatively intended unit of prosecution, we used the same basic analysis as the Second District. First, we looked at the various uses of “a” and “any” within the statute itself. Next, we looked at our prior interpretation of the same statute in State v. Getz, 435 So.2d 789 (Fla.1983). Lastly, we looked at decisions of other courts. We looked at federal court cases faced with similar questions of statutory interpretation. As did the Second District, we found that our construction was consistent with federal circuit court decisions construing similar federal statutes that used either “any” firearm or “a” firearm. Ultimately, by applying this common-sense approach to statutory interpretation, we found “that the use of the article ‘a’ in reference to ‘a firearm’ in section 812.014(2)(b)3 clearly shows that the legislature intended to make each firearm a separate unit of prosecution.” Grappin, 450 So.2d at 482.

Eight months after Grappin, we applied the a/any test in Watts and held that a prisoner could only be charged with one count of possession of contraband based on his possession of two prison-made knives discovered in his cell at the same time. Watts, 462 So.2d at 814. The contraband statute in Watts prohibited possession by an inmate of “[a]ny firearm or weapon of any kind.” 462 So.2d at 814 (quoting section 944.47, Florida Statutes (1981)). In the Watts opinion, even though a completely different statute was at issue, there is no discussion of the common-sense approach to statutory interpretation employed in Grappin to determine the legislatively intended unit of prosecution. The Watts opinion simply extrapolates the a/any distinction specifically derived from section 812.041 (2)(b) to a wholly unrelated statute. The prison contraband statute contained no variant uses of “a” or “any” before the prohibited items of property. Section 944.47 consistently used “any” before each item listed. So, unlike section 812.041(2)(b), within section 944.47 itself there was no clear expression of legislative intent as to the unit of prosecution. Unlike the Grappin decision, the Watts opinion does not discuss either the overall statutory scheme relative to contraband, the public policy behind the statute, or how other courts have interpreted similar statutes.

Therefore, when the Watts opinion stated that it was “applying the rationale of Grappin to” section 944.47, it actually was only applying a portion of the Grappin rationale. Watts, 462 So.2d at 814. There was no effort to find the legislatively intended unit of prosecution. Only the syntactical distinction between “a” and “any” was used to find ambiguity and thus apply the rule of lenity. Consequently, applying only the a/any rationale of Grappin, we held that the use of “any” created an ambiguity as to the intended unit of prosecution and this ambiguity precluded the State from charging multiple counts based on the defendant’s simultaneous possession of multiple items of contraband. Watts, 462 So.2d at 814.

Twelve years later in Wallace v. State, 724 So.2d 1176 (Fla.1998), we held that a defendant who resisted two officers during a single incident could be charged with only one crime because the statute prohibited resisting “any” officer. Id. at 1181. We analyzed the language of section 843.01, Florida Statutes (1993), which provides:

Whoever knowingly and willfully resists, obstructs, or opposes any officer ... in the lawful execution of any legal duty, by offering or doing violence to the person of such officer or legally authorized person, is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.088, or s. 775.084.

Id. (emphasis added). We ultimately determined that the case should be resolved in accordance with our decisions in Grap-pin and Watts. In reaching this conclusion, we relied in part on the United States Supreme Court’s analysis of a similar federal resisting arrest statute. Wallace, 724 So.2d at 1179 (citing Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958)). Ladner had permitted only one offense regardless of the number of officers affected. We explained the Court’s conclusion in Ladner as follows: “Because the meaning of the statute could not be discerned from the wording of the statute or its legislative history, the Court construed the statute in favor of the accused individual.” Wallace, 724 So.2d at 1180. We also noted that Ladner reached its result because the Court concluded that the statute’s “primary purpose was to prevent the hindrance of government duty, and not to prevent assault upon federal officers.” Id. at 1179. We found that the Florida Legislature had a similar purpose in enacting section 843.01. Noting that chapter 843 is entitled “Obstructing Justice,” we concluded that this context indicated a legislative focus on the obstruction of justice by resisting arrest and not just the physical protection of law enforcement officers. Wallace, 724 So.2d at 1180. Essentially, our analysis of the statutory language and related case law in Wallace led us to conclude that “[a]t the very least, under the analysis in the cases set out above, the language and purpose of the statute is ambiguous and susceptible to different interpretations.” Wallace, 724 So.2d at 1180 (emphasis added). Within this context, we held that a continuous resistance to an ongoing attempt to effect an arrest constitutes only a single “instance of obstruction” under section 843.01, Florida Statutes. Wallace, 724 So.2d at 1180-81. We applied the rule of lenity because the language and the purpose of the statute did not indicate a clear legislative intent to permit separate prosecutions of resisting separate police officers during one episode.

B. DUI Manslaughter— A Homicide Offense

Applying the same common-sense approach to statutory interpretation that we used in Grappin to the DUI manslaughter statute at issue in this case, we believe that the Legislature clearly intended to permit multiple convictions based on multiple deaths arising from a single DUI incident.

Our purpose in construing a statutory provision is to give effect to legislative intent. Legislative intent is the polestar that guides a court’s statutory construction analysis. State v. J.M., 824 So.2d 105, 109 (Fla.2002). In attempting to discern legislative intent, we first look to the actual language used in the statute. Joshua v. City of Gainesville, 768 So.2d 432, 435 (Fla.2000). If the statutory language is unclear, we apply rules of statutory construction and explore legislative history to determine legislative intent. Id.; Weber v. Dobbins, 616 So.2d 956, 958 (Fla.1993). “To discern legislative intent, courts must consider the statute as a whole, including the evil to be corrected, the language, title, and history of its enactment, and the state of law already in existence on the statute.” State v. Anderson, 764 So.2d 848, 849 (Fla. 3d DCA 2000) (citing McKibben v. Mallory, 293 So.2d 48, 52 (Fla.1974)).

Despite its inclusion in chapter 316 with motor vehicle offenses, DUI manslaughter falls within the general category of homicide offenses. See Houser v. State, 474 So.2d 1193, 1196 (Fla.1985) (stating that the statutory element of the death of a victim places DUI manslaughter “squarely within the scope of this state’s regulation of homicide”); McHugh v. State, 160 Fla. 823, 36 So.2d 786, 787 (1948) (stating that the “gist” of the DUI manslaughter offense is “unlawful homicide”). The first enactment of the DUI manslaughter statute in 1923 provided that violations of the statute were to “be punished as provided by existing law relating to manslaughter.” Ch. 9269, § 1, Laws of Fla. (1923). Prior to the 1923 legislation, there was no specific Florida statute dealing with manslaughter arising from the operation of motor vehicles, and these cases were prosecuted under the general manslaughter statute, which has existed, essentially in its present form, since 1868. The first manslaughter statute was enacted in 1868. It defined the offense as the killing of “one human being.” When the homicide statute was revised in 1892, manslaughter was defined as the killing of “a human being.” This statutory language, which has remained unchanged since 1892, indicates a clear legislative intent that the offense of manslaughter should be punished based on the number of victims rather than by reference to the particular act leading to the deaths.

Homicide statutes traditionally and uniformly impose punishment for each death caused by a defendant’s criminal conduct. See, e.g., Lovette v. State, 636 So.2d 1304, 1305-06 (Fla.1994) (affirming three first-degree murder convictions where codefendants killed three people during a robbery); Rosier v. State, 343 So.2d 972, 973 (Fla. 1st DCA 1977) (permitting five counts of manslaughter by culpable negligence where five victims were killed in a single automobile crash). Homicides are punished based on the number of victims because the legislative purpose behind homicide statutes is to safeguard the lives of individuals. The Florida Legislature was guided by this purpose in enacting the DUI manslaughter statute; the unambiguous aim of the statute is to ensure the safety of individual citizens. Therefore, the gravamen of the offense of DUI manslaughter is not a traffic violation, but the killing of a human being. See Cannon v. State, 91 Fla. 214, 107 So. 360, 362 (1926) (stating that the felony of DUI manslaughter “lies not in driving of an automobile negligently while intoxicated ... but in the killing of a person”).

Our understanding of the Legislature’s intent is buttressed by our decision in Melbourne where we rejected a double jeopardy challenge to multiple convictions for DUI manslaughter arising out of a single DUI incident. Melbourne, 679 So.2d at 765. The defendant in Melbourne killed two people and injured a third while driving under the influence. Id. Based on these facts, we upheld the defendant’s convictions on two counts of DUI manslaughter and one count of DUI with serious bodily injury. Id. We reasoned that a “DUI driver may sustain multiple convictions because the violation causes injury to each victim.” Id.

Our decision today is controlled by the same understanding of legislative intent reflected in our decision in Melbourne. As stated above, we believe that the Legislature clearly intended to allow separate convictions of DUI manslaughter for each death that occurs in a single DUI episode. It was this same understanding that enabled us to reject the double jeopardy challenge raised in Melbourne. See Boler v. State, 678 So.2d 319, 321 (Fla.1996) (explaining that the dispositive question in a double jeopardy analysis is the determination of legislative intent).

Our understanding of legislative intent regarding DUI manslaughter has not changed since Melbourne. The legislative intent is to allow separate convictions for each victim. This understanding comports with the uniform authority of Florida case law interpreting the DUI manslaughter statute. See McHugh v. State, 160 Fla. 823, 36 So.2d 786, 787 (1948) (stating that the great weight of authority supports the view that under the DUI manslaughter statute “[tjhere is an offense for each unlawful homicide”); State v. Wright, 546 So.2d 798, 799 n. 2 (Fla. 1st DCA 1989) (stating that the prosecution of multiple counts of DUI manslaughter arising from a single DUI incident is commonplace and not open to serious question); Pulaski v. State, 540 So.2d 193, 194 (Fla. 2d DCA 1989) (stating that “one count of manslaughter is permissible for each death sustained during a drunk driving episode”); State v. Naumowicz, 535 So.2d 702, 702 (Fla. 1st DCA 1988) (permitting separate counts of DUI manslaughter based on separate deaths in a single DUI incident); State v. Lowe, 130 So.2d 288, 289 (Fla. 2d DCA 1961) (holding that “where two or more persons are killed by a single [DUI crash], there are as many separate and distinct offenses as there are persons killed by the unlawful act”).

Applying a common-sense approach to the DUI manslaughter statute leads to one inexorable conclusion. Any reasonable consideration of the language of the statute, the history of its enactment, the uniform statutory treatment of manslaughter offenses, and the case law in existence makes it clear that the legislative intent is that each death caused in a DUI crash is to be charged and punished as a separate offense.

C. DUI Manslaughter and the A/Any Test

The a/any test does not compel a contrary determination of the Legislature’s intended unit of prosecution for the offense of DUI manslaughter. Bautista’s argument based on the a/any test succeeds only if we were to apply the test as a simple syntactical rule in isolation from the context in which the test arose. However, it would be improper to so isolate this distinction. As discussed earlier, the a/any distinction was used in Grappin as one part of a common sense application of well-established rules of statutory interpretation, including reference to the overall statutory scheme and purpose as well as to related cases. Within this context, the a/any test is a valid linguistic tool that is helpful in establishing the Legislature’s intended unit of prosecution. However, the a/any test is not an infallible or exclusive indicator of legislative intent. Rather, absent clear legislative intent to the contrary, the a/any test serves as a valuable but nonexclusive means to assist courts in determining the intended unit of prosecution.

We acknowledge that our decision in Watts, while reaching the correct result, might appear to apply the a/any test mechanistically. We applied the a/any test in that case because there was no clear evidence of legislative intent to permit multiple units of prosecution. However, Grappin and its progeny should not be interpreted to suggest that the intended unit of prosecution is automatically rendered ambiguous whenever a statute uses the word “any.” In the DUI manslaughter statute, the intent of the Legislature is clear. And since our purpose in construing a statutory provision is to give effect to legislative intent, the unit of prosecution in DUI manslaughter cases must be the number of victims killed-not the number of DUI traffic violations. The a/any test should not be applied to create an ambiguity where none exists and then to reach a result contrary to clear legislative intent.

We therefore hold that the a/any test adopted in Grappin does not preclude multiple convictions of DUI manslaughter where multiple deaths occur in a single DUI crash.

We decline to address Bautista’s collateral argument regarding the enhancement of his convictions for failure to render aid because this issue is outside the scope of the certified question and the Fourth District Court of Appeal did not rule on the issue. See Major League Baseball v. Morsani, 790 So.2d 1071, 1080 n. 26 (Fla.2001) (stating that this Court generally declines to review issues which are outside the scope of a certified question and which have not passed jurisdictional muster).

III. CONCLUSION

For the reasons stated above, we answer the certified question in the negative and approve the decision of the Fourth District Court of Appeal.

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, QUINCE, and CANTERO, JJ., concur.

      . We have jurisdiction under article V, section 3(b)(4) of the Florida Constitution.

      . Bautista also fled the scene of the accident without rendering aid to the passengers or providing information to the responding police officers. Both counts of DUI manslaughter were charged as first-degree felony DUI manslaughter under section 316.193(3)(c)(3)(b), Florida Statutes (2002).

      . 944.47 Introduction, removal, or possession of certain articles unlawful; penalty.—
      (l)(a) Except through regular channels as authorized by the officer in charge of the correctional institution, it is unlawful to introduce into or upon the grounds of any state correctional institution, or to take or attempt to take or send therefrom, any of the following articles which are hereby declared to be contraband for the purposes of this section, to wit:

        1. Any written or recorded communication or any currency or coin given or transmitted, or intended to be given or transmitted, to any inmate of any state correctional institution.
      2. Any article of food or clothing given or transmitted, or intended to be given or transmitted, to any inmate of any state correctional institution.
      3. Any intoxicating beverage or beverage which causes or may cause an intoxicating effect.
      4. Any narcotic, hypnotic, or excitative drug or any drug of whatever kind or nature including, but not limited to, a nasal inhalator of any variety, a sleeping pill, a barbiturate of any variety, and a controlled substance as defined in s. 893.02(3).
      5. Any firearm or weapon of any kind or any explosive substance.
      (b) It is unlawful to transmit or attempt to transmit to, or cause or attempt to cause to be transmitted to or received by, any inmate of any state correctional institution any article or thing declared by this subsection to be contraband, at any place which is outside the grounds of such institution, except through regular channels as authorized by the officer in charge of such correctional institution.
      (c) It is unlawful for any inmate of any state correctional institution or any person while upon the grounds of any state correctional institution to be in actual or constructive possession of any article or thing declared by this section to be contraband, except as authorized by the officer in charge of such correctional institution.
      (2) Whoever violates any provision of this section is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

      . As stated earlier, the rule of lenity does not apply where legislative intent as to punishment is clear. Grappin, 450 So.2d at 482 (citing Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958)). The following discussion explains that we find the legislatively intended unit of prosecution for DUI manslaughter clear.

      . In 1868, the Florida Legislature codified the common, law of homicide. Ch. 1637, Laws of Fla. (1868). The statute set out a general definition of manslaughter: “The killing of one human being, by the act, procurement, or omission of another, in cases where such killing shall not be murder, according to the provisions of this chapter, is either justifiable or excusable homicide or manslaughter.” Id. ch. Ill, § 3.

      . In 1892, the Legislature revised and consolidated the homicide statute. Degrees of manslaughter were eliminated, and • certain common-law manslaughters (misdemeanor manslaughter, heat of passion killings, involuntary killing of a trespasser, and killing through negligence) were no longer specifically listed in the statute but became subsumed within the general definition of manslaughter. The general definition was amended to read: "The killing of a human being by the act, procurement, or culpable negligence of another, in cases where such killing shall not be justifiable or excusable homicide or murder ... shall be deemed manslaughter....” § 2384, Fla.Rev.Stat. (1892).

        .See § 782.07, Fla. Stat. (2002).

      . In attempting to discern the intent behind a statutory term, courts should not mechanistically rely on a single tool but must use all available tools of interpretation. See United States v. Dickerson, 310 U.S. 554, 562, 60 S.Ct. 1034, 84 L.Ed. 1356 (1940) (stating that "[t]he meaning to be ascribed to [a legislative act] can only be derived from a considered weighing of every relevant aid to construction”).

      . In fact, only if the criminal statute in question uses the article "a” is the legislative intent as to the intended unit of prosecution actually determined by the a/any test. This is because the use of the article “a” is unambiguous. If the adjective "any” is used, an ambiguity of legislative intent arises. Instead of using the traditional tools for determining legislative intent, the a/any test simply applies the rule of lenity to this ambiguity and precludes more than one unit of prosecution. This latter result avoids determining legislative intent rather than ascertaining that intent.


author: PARIENTE, J. WELLS, J.,

text:
    Nathaniel WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. SC03-139.
    Supreme Court of Florida.
    Dec. 11, 2003.
    Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Celia Terenzio, Bureau Chief, West Palm Beach, and Richard Valuntas, Assistant Attorney General, West Palm Beach, FL, for Respondent.
   PARIENTE, J.

We have for review the Third District Court of Appeal’s decision in Williams v. State, 834 So.2d 923 (Fla. 3d DCA 2003), which expressly and directly conflicts with our decisions in Goodwin v. State, 751 So.2d 537 (Fla.1999), and State v. DiGui-lio, 491 So.2d 1129 (Fla.1986), on the harmless error standard of review. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

In DiGuilio, this Court set out the test to be applied in determining whether an error is harmful:

The test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convine-ing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing . the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.

491 So.2d at 1139. We reaffirmed this harmless error standard in Goodwin, holding that the enactment of section 924.051(7), Florida Statutes (Supp.1996), did not alter the obligation of the appellate courts to independently review both constitutional and nonconstitutional errors for harmlessness under the DiGuilio standard. See Goodwin, 751 So.2d at 542-43.

In this ease, the Third District departed from the DiGuilio standard in holding that a preserved trial court error did not warrant reversal because “given all of the other evidence as to William’s [sic] guilt, we cannot conclude that this error necessarily deprived Williams of a fair trial.” Williams, 834 So.2d at 925 (emphasis supplied). We recently quashed and remanded for reconsideration a decision of the Second District Court of Appeal in which that court used an incorrect harmless error test. See Knowles v. State, 848 So.2d 1055, 1058-59 (Fla.2003). Consistent with Knowles, as well as with our decisions in DiGuilio and Goodwin, we quash in part the Third District’s decision in this case and remand for reconsideration under the correct harmless error standard. We decline to address the additional issue raised by Williams that is beyond the scope of the conflict issue. See Asbell v. State, 715 So.2d 258, 258 (Fla.1998).

It is so ordered.

ANSTEAD, C.J., and LEWIS, QUINCE, and CANTERO, JJ., concur.

BELL, J., concurs in result only.

WELLS, J., dissents with an opinion.

WELLS, J.,

dissenting.

I would discharge jurisdiction. I believe the majority gives to the Third District’s opinion tod cramped a reading. I do not read the opinion to conflict with State v. DiGuilio, 491 So.2d 1129 (Fla.1986). The Third District’s decision as to the merits is correct.


text:
    POST-NEWSWEEK STATIONS FLORIDA, INC., Petitioner, v. CITY OF MIAMI, et al., Respondents.
    No. SC03-530.
    Supreme Court of Florida.
    Dec. 18, 2003.
    Karen Williams Kammer of Mitrani, Ry-nor, Adamsky & McCaulay, P.A., Miami, FL, for Petitioner.
    Alejandro Vilarello, City Attorney, and Charles C. Mays and Regine Monestime, Assistant City Attorneys, Miami, FL; Katherine Fernandez Rundle, State Attorney, and Angelica D. Zayas, Assistant State Attorney, Eleventh Judicial Circuit, Miami, FL; and Benedict P. Kuehne and Susan Dmitrovsky of Sale & Kuehne, P.A., Miami, FL, for Respondents.
   WELLS, J.

We initially accepted jurisdiction to review City of Miami v. PosF-Neiusweek Stations Florida, Inc., 837 So.2d 1002 (Fla. 3d DCA 2002), a decision of the district court of appeal certifying a question to be of great public importance pursuant to article V, section 3(b)(4) of the Florida Constitution. Upon further consideration, we have now determined that we should exercise our discretion and discharge jurisdiction. Accordingly, this review proceeding is hereby dismissed.

It is so ordered.

ANSTEAD, C.J., and PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.