Mastro v. State

LEHAN, Judge.

The issue in this case is whether vehicular homicide is a lesser included offense of DWI manslaughter. We find that vehicular homicide is not a Category 1 lesser included offense notwithstanding its designation as such in the Florida Standard Jury Instructions. The list of lesser included offenses in that publication is not binding. See Linehan v. State, 442 So.2d 244 (Fla. 2d DCA 1983); Bragg v. State, 433 So.2d 1375 (Fla. 2d DCA 1983). We also find that under the facts of this case vehicular homicide was not a Category 2 lesser included offense of DWI manslaughter.

The defendant…