Davis v. State (485 So. 2d 490, 1986)

Scot Harding DAVIS, Appellant, v. The STATE of Florida, Appellee.

No. 85-1810.

District Court of Appeal of Florida, Third District.

March 25, 1986.

John P. Shevock, C. Edward McGee, Jr., Pompano Beach, for appellant.

Jim Smith, Atty. Gen. and Richard L. Kaplan, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, C.J., and HUB-BART and DANIEL S. PEARSON, JJ.

PER CURIAM.

Because the disputed and equivocal circumstantial evidence that Davis was driving the decedent’s vehicle at the time of the fatal accident was, as a matter of law, insufficient to overcome Davis’ direct testimony on the stand and other evidence that he was a passenger, Mayo v. State, 71 So.2d 899 (Fla.1954); see McArthur v. State, 351 So.2d 972 (Fla.1977); cf. State v. Allen, 335 So.2d 823 (Fla.1976), the conviction below of manslaughter under § 316.-1931, Fla.Stat. (1983) is reversed with directions to discharge the defendant.