source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re AMENDMENTS TO THE FLORIDA FAMILY LAW RULES OF PROCEDURE.
    No. SC07-1160.
    Supreme Court of Florida.
    July 12, 2007.
    John Fraser Himes, Chair, Family Law Rules Committee, Tampa, FL, and John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, FL, for Petitioner.
   PER CURIAM.

The Florida Bar’s Family Law Rules Committee (Committee) has filed an out-of-cycle report proposing amendments to the Florida Family Law Rules of Procedure to conform the rules to recent legislation. We have jurisdiction. See art. V, § 2(a), Fla. Const.; Fla. R. Jud. Admin. 2.140(e).

Under the Committee’s “fast-track” procedure for considering new legislation, the Committee proposes new form 12.905(d) (Supplemental Petition for Temporary Modification/Amendment of Custody for Child(ren) of Custodial Parent Activated, Deployed, or Temporarily Assigned to Military Service) and an amendment to rule 12.070 (Process), with accompanying new form 12.913(c) (Affidavit of Diligent Search). The Executive Committee of The Florida Bar Board of Governors approved each of the Committee’s proposals by a vote of 8-0.

The Committee’s two proposals are in response to Chapters 2007-132 and 2007-85, Laws of Florida, respectively. Chapter 2007-132, section 1, Laws of Florida, creates new section 61.13002, Florida Statutes, prohibiting a court from modifying child custody during the time a parent is activated, deployed, or temporarily assigned to military service, except to issue a temporary modification order if it is in the best interests of the child. If a temporary order is issued, the statute requires that the court reinstate the previous custody judgment upon the parent’s return from active service, deployment, or temporary assignment. Ch. 2007-132, § 1, Laws of Fla. New form 12.905(d) is specifically tailored to a temporary modification necessitated by a parent’s military service.

Chapter 2007-85, section 1, Laws of Florida, amends section 49.011, Florida Statutes (2006) to allow service of process by publication on a legal father in a paternity action in which another man is alleged to be the biological father, in which case it is necessary to serve process on the legal father in order to establish paternity with regard to the alleged biological father. Chapter 2007-85, section 7 amends section 409.257, Florida Statutes (2006) to require that before such service of process may be made on a legal father in such a proceeding, the diligent search and inquiry requirements of section 63.088, Florida Statutes, must be satisfied by the petitioner, and the petitioner must “execute an affidavit of diligent search and file it with the court confirming each aspect of the diligent search enumerated in s[eetion] 63.088(5) and specifying the results.” However, chapter 409 applies only to actions brought by the Department of Revenue. Accordingly, the Committee states that an amendment to rule 12.070 (Process) is necessary to make the diligent search and inquiry requirements applicable to both the Department of Revenue and other petitioners who file actions to establish paternity when the proceedings may result in termination of the legal father’s parental rights. In conjunction with the amendment to rule 12.070, the Committee also proposes new form 12.913(c) (Affidavit of Diligent Search) to provide a form affidavit meeting the requirements of section 63.088, Florida Statutes.

After considering the Committee’s proposals and reviewing the relevant legislation, we amend Florida Family Law Rule 12.070 and adopt new forms 12.905(d) and 12.913(c) as reflected in the appendix to this opinion. As for amended rule 12.070, new language is underlined, and deleted language is struck-through. The new forms are fully engrossed and ready for use. New form 12.905(d) is adopted as a Florida Supreme Court Approved Family Law Form. New form 12.913(c) is adopted as a Florida Family Law Rules of Procedure Form.

These amendments shall become effective immediately upon the release of this opinion. However, because the Court did not publish the amendments for comment prior to their adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.

It is so ordered.

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

APPENDIX

RULE 12.070. PROCESS

(a)Service of Initial Process. Upon the commencement of all family law actions, including proceedings to modify a final judgment, service of process shall be as set forth in Florida Rule of Civil Procedure 1.070.

(b) Summons. The summons, cross-claim summons, and third-party summons in family law matters shall be patterned after Florida Family Law Rules of Procedure Form 12.910(a) and shall specifically contain the following language:

WARNING: Rule 12.285, Florida Family Law Rules of Procedure, requires certain automatic disclosure of documents and information. Failure to comply can result in sanctions, including dismissal or striking of pleadings.

(c) Constructive Service. (For constructive service of process, an affidavit of diligent-search and inquiry, in substantial conformity with Florida Family Law-Rules of Procedure Forim l&913(b),.must be filed.

(1) For constructive service of process on the legal father in any case or proceeding to establish paternity which would result in termination of the legal father’s parental rights, the petitioner shall file an affidavit of diligent search and inquiry that conforms with Florida Family Law Rules of Procedure Form 12.913(c). If the legal father cannot be located, he shall be served with process by publication in the manner provided by chapter 49, Florida Statutes. The notice shall be published in the county where the legal father was last known to have resided. The clerk of the circuit court shall mail a copy of the notice to the legal father at his last known address.

(2) For constructive service of process in all other cases, an affidavit of diligent search and inquiry in substantial conformity with Florida Family Law Rules of Procedure Form 12.913(b), must be filed.

(d) Domestic, Repeat, Dating, and Sexual Violence Proceedings. This rule does not govern service of process in domestic, repeat, dating, and sexual violence proceedings.

INSTRUCTIONS FOR FLORIDA SUPREME COURT APPROVED FAMILY LAW FORM 12.905(d), SUPPLEMENTAL PETITION FOR TEMPORARY MODIFICATION/AMENDMENT OF CUSTODY FOR CHILD(REN) OF CUSTODIAL PARENT ACTIVATED, DEPLOYED, OR TEMPORARILY ASSIGNED TO MILITARY SERVICE

When should this form be used?

This form should be used when a parent seeks a temporary modification of custody because the custodial parent is activated, deployed, or temporarily assigned to military service.

This form should be typed or printed in black ink. After completing this form, you should sign the form before a notary public or deputy clerk. You should file the original with the clerk of the circuit court in the county where you live and keep a copy for your records.

What should I do next?

For your case to proceed, you must properly notify the other party in your case of the supplemental petition. If you know where he or she lives, you should use personal service. If you absolutely do not know where he or she lives, you may use constructive service. You may also be able to use constructive service if the other party resides in another state or country. However, if constructive service is used, other than granting a divorce, the court may only grant limited relief. For more information on constructive service, see Notice of Action for Dissolution of Marriage, Florida Supreme Court Approved Family Law Form 12.913(a), and Affidavit of Diligent Search and Inquiry, Florida Family Law Rules of Procedure Form 12.913(b). If the other party is in the military service of the United States, additional steps for service may be required. See, for example, Memorandum for Certificate of Military Service, Florida Supreme Court Approved Family Law Form 12.912(a). In sum, the law regarding constructive service and service on an individual in the military service is very complex and you may wish to consult an attorney regarding these issues.

If personal service is used, the other party has 20 days to answer after being served with your supplemental petition. Your case will then generally proceed in one of the following three ways:

DEFAULT ... If after 20 days, no answer has been filed, you may file a Motion for Default, Florida Supreme Court Approved Family Law Form 12.922(a), with the clerk of court. Then, if you have filed all of the required papers, you may call the clerk, family law intake staff, or judicial assistant to set a final hearing. You must notify the other party of the hearing by using a Notice of Hearing (General), Florida Supreme Court Approved Family Law Form 12.923, or other appropriate notice of hearing form.

UNCONTESTED ... If the respondent files an answer that agrees with everything in your supplemental petition or an answer and waiver, and you have complied with mandatory disclosure and filed all of the required papers, you may call the clerk, family law intake staff, or judicial assistant to set a final hearing. You must notify the other party of the hearing by using a Notice of Hearing (General), Florida Supreme Court Approved Family Law Form 12.923, or other appropriate notice of hearing form.

CONTESTED ... If the respondent files an answer or an answer and counterpetition, which disagrees with or denies anything in your supplemental petition, and you are unable to settle the disputed issues, you should file a Notice for Trial, Florida Supreme Court Approved Family Law Form 12.924, after you have complied with mandatory disclosure and filed all of the required papers. Some circuits may require the completion of mediation before a final hearing may be set. Then you should contact the clerk, family law intake staff, or judicial assistant for instructions on how to set your case for trial (final hearing). If the respondent files an answer and counterpetition, you should answer the counterpetition within 20 days using an Answer to Counterpetition, Florida Supreme Court Approved Family Law Form 12.903(d).

Where can I look for more information?

Before proceeding, you should read “General Information for Self-Represented Litigants” found at the beginning of these forms. The words that are in “bold underline” in these instructions are defined there. For further information, see section 61.13002, Florida Statutes.

Special notes ...

If you do not have the money to pay the filing fee, you may obtain an Application for Determination of Civil Indigent Status from the clerk, fill it out, and the clerk will determine whether you are eligible to have filing fees deferred.

With this form, you must also file the following:

• Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) Affidavit, Florida Supreme Court Approved Family Law Form 12.902(d).
• Child Support Guidelines Worksheet, Florida Family Law Rules of Procedure Form 12.902(e). (If you do not know the other party’s income, you may file this worksheet after his or her financial affidavit has been served on you.)
• Settlement Agreement, if you have reached an agreement on any or all of the issues. Although there is no form for this in these Florida Family Law Forms, you may construct a settlement agreement using the pertinent sections contained in Marital Settlement Agreement for Dissolution of Marriage with Dependent or Minor Child(ren), Florida Supreme Court Approved Family Law Form 12.902(f)(1).
• Notice of Social Security Number, Florida Supreme Court Approved Family Law Form 12.902(j), if not previously filed.
• Family Law Financial Affidavit, Florida Family Law Rules of Procedure Form 12.902(b) or (c). (This must be filed within 45 days of service of the supplemental petition on the respondent, if not filed at the time of the supplemental petition.)
• Certificate of Compliance with Mandatory Disclosure, Florida Family Law Rules of Procedure Form 12.932. (This must be filed within 45 days of service of the supplemental petition on the respondent, if not filed at the time of the supplemental petition, unless you and the other party have agreed not to exchange these documents.)

Final Judgment Form ... These family law forms contain a Supplemental Final Judgment Modifying Parental Responsibility/Visitation, Florida Supreme Court Approved Family Law Form 12.993(a), which the judge may use. You should check with the clerk, family law intake staff, or judicial assistant to see if you need to bring it with you to the hearing. If so, you should type or print the heading, including the circuit, county, case number, division, and the parties’ names, and leave the rest blank for the judge to complete at your hearing or trial. Nonlawyer ... Remember, a person who is NOT an attorney is called a nonlawyer. If a nonlawyer helps you fill out these forms, that person must give you a copy of a Disclosure from Nonlawyer, Florida Family Law Rules of Procedure Form 12.900(a), before he or she helps you. A nonlawyer helping you fill out these forms also must put his or her name, address, and telephone number on the bottom of the last page of every form he or she helps you complete.

INSTRUCTIONS FOR FLORIDA FAMILY LAW RULES OF PROCEDURE FORM 12.913(c) AFFIDAVIT OF DILIGENT SEARCH

When should this form be used?

This form is to be used with Notice of Action, Florida Supreme Court Approved Family Law Form 12.913(a), to obtain constructive service (also called service by publication) on the legal father in any action or proceeding to determine paternity which may result in termination of the legal father’s parental rights.

You must disclose the last known address of the legal father. A last known address cannot be unknown. This form includes a checklist of places you must look for information on the location of the legal father. You have to look in all of these places, and the court must believe that you have made a very serious effort to get information about the person’s location and that you have followed up on any information you received.

This form should be typed or printed in black ink. After completing this form, you should sign the form before a notary public or deputy clerk. You should file the original and a Notice of Action Florida Supreme Court Approved Family Law Form 12.913(a), with the clerk of the circuit court in the county where your petition for dissolution of marriage is filed. You should keep a copy for your records.

Where can I look for more information?

Before proceeding, you should read General Information for Self-Represented Litigants found at the beginning of these forms. For further information, see rule 12.070, Florida Family Law Rules of Procedure, rule 1.070(e) and (f), Florida Rules of Civil Procedure, and section 409.257, Florida Statutes.

Special notes...

Remember, a person who is NOT an attorney is called a nonlawyer. If a nonlawyer helps you fill out these forms, that person must give you a copy of Disclosure from Nonlawyer, Florida Family Law Rules of Procedure Form 12.900(a), before he or she helps you. A nonlawyer helping you fill out these forms also must put his or her name, address, and telephone number on the bottom of the last page of every form he or she helps you complete.

Address_ City-State-Zip -

Telephone No-Fax No-

His last known employment, as of {date}-, was:

Name of Employer -- — _---

Address_City-1-State-Zip-

Telephone No-Fax No-

2. The legal father is over the age of 18.

3. The legal father’s current residence is not known and cannot be determined, although I have made a diligent search and inquiry to locate him through the following:

You must search ALL of the following sources of information and state the results.

United States Post Office inquiry through the Freedom of Information Act for the person’s current address or any previous address.

Result of search: -

Last known employment of the other parent, including name and address of employer.

Result of search: _-.-

Regulatory agencies, including professional or occupational licensing, in the area where the other parent last resided. Result of search: -

Names and addresses of relatives to the extent such can be reasonably obtained from the petitioner or other sources, contacts with those relatives and inquiry as to the other parent’s last known address. You are to follow up any leads of any addresses where the other parent may have moved.

Result of search: _-.-

Information about the other parent’s possible death and, if dead, the date and location.

Result of search: _-

Telephone listings in the area where the other parent last resided.

Result of search: -----.-

Law enforcement agencies in the area where the other parent last resided.

Result of search: -------

Highway Patrol records in the state where the other parent last resided.

Result of search: ----

Department of Corrections records in the state where the other parent last resided.

Result of search: _______

Hospitals in the last known area of the other parent’s residence.

Result of search: ----

Records of utility companies, which include water, sewer, cable TV, and electric in the last known area of the other parent’s residence.

Result of search: -

Records of the Armed Forces of the U.S. and their response as to whether or not there is any information about the other parent. (See Florida Supreme Court Approved Family Law Form 12.912(a), Memorandum for Certificate of Military Service.)

Result of search: ---—

Records of the tax assessor’s and tax collector’s office in the area where the other parent last resided. Result of search: -

Search of one Internet databank locator service.

Result of search: -----—

Title IV-D (child support enforcement) agency records in the state of the other parent’s last known address. Result of search: -

I understand that I am swearing or affirming under oath to the truthfulness of the claims made in this affidavit and that the punishment for knowingly making a false statement includes fines and/or imprisonment.

      . An original and nine paper copies of all comments must be filed with the Court on or before September 10, 2007, with a certificate of service verifying that a copy has been served on the Committee Chair, Raymond T. McNeal, 2640 S.E. 45th Street, Ocala, FL 34480, as well as separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Chair has until October 1, 2007, to file a response to any comments filed with the Court. Electronic copies of all comments and responses also must be filed in accordance with the Court's administrative order In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004).


text:
    In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT NO. 2006-2.
    No. SC06-2303.
    Supreme Court of Florida.
    July 12, 2007.
    Honorable Terry David Terrell, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, First Judicial Circuit, Pensacola, FL, for Petitioner.
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has filed a report, proposing amendments to Standard Jury Instructions in Criminal Cases 8.4 — Aggravated Battery; 8.10 — Assault on Law Enforcement Officer or Firefighter; 8.11 — Battery on Law Enforcement Officer or Firefighter; 8.12 — Aggravated Assault on Law Enforcement Officer or Firefighter; 8.13— Aggravated Battery on Law Enforcement Officer or Firefighter; 8.14 — Aggravated Battery on Person 65 Years of Age or Older; 11.1 — Sexual Battery — Victim Less than 12 Years of Age; 13.1 — Burglary; 14.2 — Dealing in Stolen Property (Fencing); 14.3 — Dealing in Stolen Property (Organizing); and 27.1 — Escape. The Committee also proposes new instructions 6.3 — Attempted Felony Murder; 6.3(a)— Attempted Felony Murder — Injury Caused by Another; 8.4(a) — Aggravated Battery (Pregnant Victim); 10.16 — Use of a Firearm While Under the Influence; 13.5(a) — Trespass on School Grounds or Facilities; 13.5(b) — Trespass on School Grounds or Facilities after Warning by Principal or Designee; 20.13 — Fraudulent Use or Possession of Personal Identification Information; 20.14 — Harassment by Use of Personal Identification Information; 20.15 — Fraudulent Use of Personal Identification Information of a Minor; 20.16— Fraudulent Use of Personal Identification Information of a Minor by a Parent or Guardian; 20.17 — -Fraudulent Use or Possession of Personal Identification Information Concerning a Deceased Individual; and 20.18 — Fraudulent Creation, Use or Possession of Counterfeit Personal Identification Information. The Committee published the proposals for comment in The Florida Bar News prior to submission to the Court. We have jurisdiction. See art. V, § 2(a), Fla. Const.

We decline to authorize proposed new instructions 20.13 — Fraudulent Use or Possession of Personal Identification Information, and 20.17 — Fraudulent Use or Possession of Personal Identification Information Concerning a Deceased Individual. Unlike the other instructions pertaining to the unlawful use or possession of personal identification information, these proposed instructions include provisions for an enhanced penalty based upon the use of a public record to facilitate or further the identity theft, pursuant to sections 817.568(5) and (10), as well as based upon the pecuniary benefit, value of the services received, the payment sought to be avoided, or the amount of the injury or fraud perpetrated, or the number of individuals victimized. See §§ 817.568(2)(b) and (c); 817.568(8)(b) and (c), Fla. Stat. While the basis for the enhanced penalty under sections 817.568(2) and 817.568(8) is fraudulent use, an enhancement under section 817.568(5) or section 817.568(10) does not require fraudulent use. However, proposed new instructions 20.13 and 20.17 cite sections 817.568(5) and 817.568(10), and state “Give if applicable and Fraudulent Use is charged.” We are concerned that these proposed instructions fail to distinguish between the two distinct bases for application of an enhanced penalty, i.e., use of a public record to facilitate or further the identity theft, as distinguished from fraudulent use of personal identification information in respect to the pecuniary benefit, value of the services received, the payment sought to be avoided, or the amount of the injury or fraud perpetrated, or the number of individuals victimized. Therefore, we refer these proposed instructions back to the Committee to address this issue.

Having considered the Committee’s report and one comment filed, we hereby authorize the publication and use of the other proposals, as set forth in the appendix to this opinion, with minor modifications. In doing so, we express no opinion on the correctness of those instructions and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. We further caution all interested parties that any notes and comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. New language is indicated by underlining, and deleted language is struck-through. The instructions as set forth in the appendix shall be effective when this opinion becomes final.

It is so ordered.

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

APPENDIX

6.3 ATTEMPTED FELONY MURDER-FIRST DEGREECENUMER-ATED FELONY] [NON-ENUMERATED FELONY]

■§§ 782.0d(lXa-> and-777.0d § 782.051(1) and (2), Fla. Stat.

The instructions on attempted first and third degree felony murder- have been deleted. See State v. Gray, 654 So.Sd 552 (Fla.1965).

To prove the crime of Attempted Felony Murder, the State must prove the following three elements beyond a reasonable doubt:

L (Defendant) [committed] [attempted to commit] a (crime alleged).
2. While engaged in the [commission] [attempted commission] [escape from the immediate scene] of (crime alleged), the defendant [committed] [aided or abetted] an intentional act that is not an essential element of (crime alleged).
3. This intentional act could have but did not cause the death of (victim).

(Crime alleged) is defined by Florida law as (define the crime).

In order to convict (defendant) of Attempted Felony Murder, it is not necessary for the State to prove that [he] [she] had a premeditated design or intent to kill.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

Section 782,051(1), Fla. Stat., applies where the defendant is alleged to have committed or attempted to commit a felony enumerated in section 782.04(3). Section 782.051(2), Fla. Stat., applies where the defendant is alleged to have committed or attempted to commit a felony not enumerated in section 782.04(3), Fla. Stat.

This instruction was adopted in 2007. See Battle v. State, 911 So.2d 85 (Fla.2005).

6.3(a) ATTEMPTED FELONY MURDER — INJURY CAUSED BY ANOTHER

§ 782.051(3) Fla. Stat.

To prove the crime of Attempted Felony Murder, the State must prove the following two elements beyond a reasonable doubt:

L (Defendant) [committed] [attempted to commit] a (crime alleged).
2. (Victim) was injured during the [commission] [attempted commission] of an escape from the immediate scene of the (crime alleged) by an individual other than the person(s) [committing] [attempting to commit] [escaping from the immediate scene of] the (crime alleged).

(Crime alleged) is defined by Florida law as (define the crime).

In order to convict the defendant of attempted felony murder, it is not necessary for the state to prove that the defendant had a premeditated design or intent to kill.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

Section 782.051(3), Fla. Stat., applies only where the defendant was committing or attempting to commit a felony enumerated in section 782.04(3).

This instruction was adopted in 2007.

8.4 AGGRAVATED BATTERY

§ 784.045, Fla. Stat.

To prove the crime of Aggravated Battery, the State must prove the following two elements beyond a reasonable doubt. The first element is a definition of battery.

1. (Defendant)
[intentionally touched or struck (victim) against [his] [her] will]. [intentionally caused bodily harm to (victim) ].
Give 2a or 2b as applicable.
2. (Defendant) in committing the battery
a. [intentionally or knowingly caused
[great bodily harm to (victim) ]]. [permanent disability to (victim) ]].
[permanent disfigurement to (victim) ]].
b. [used a deadly weapon.]
e. — [knew or should have known that (victim] was pregnant,]
Definition. Give if 2b alleged.

A weapon is a “deadly weapon” if it is used or threatened to be used in a way likely to produce death or great bodily harm.

Comment

The lesser included offense of Felony Battery is only applicable if element 2a is charged and proved.

This instruction was approved in 1981 and amended in 1989 [543 So.2d 1205], and 2007.

8.4(a) AGGRAVATED BATTERY (Pregnant Victim)

§ 784.045, Fla. Stat.

To prove the crime of Aggravated Battery, the State must prove the following three elements beyond a reasonable doubt. The first element is a definition of battery.

1. (Defendant) [intentionally touched or struck (victim) against her will] [intentionally caused bodily harm to (victim) ].
2. (Victim) was pregnant at the time.
3. (Defendant) in committing the battery knew or should have known that (victim) was pregnant.

Comment

This instruction was approved in 2007. See Small v. State, 889 So.2d 862 (Fla. 1st DCA 2004).

8.10 ASSAULT ON A^LAW ENFORCEMENT OFFICER!, {FIREFIGHTER!, ETC. ’

§ 784.07(2)(a), Fla. Stat.

To prove the crime of Assault on a [Law Enforcement Officer] [Firefighter] [Emergency Medical Care Provider] [Traffic Accident Investigation Officer] [Traffic Infraction Enforcement Officer] [Parking Enforcement Specialist] [Security Officer employed by the Board of Trustees of a Community College], the State must prove the following six elements beyond a reasonable doubt:

1. (Defendant) intentionally and unlawfully threatened, either by word or act, to do violence to (victim).
2. At the time, (defendant) appeared to have the ability to carry out the threat.
3. The act of (defendant) created in the mind of (victim) a well-founded fear that the violence was about to take place.
4. (Victim) was at the time a [law enforcement officer] [firefighter] [emergency medical care provider] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [security officer employed by the board of trustees of a community college].
5. (Defendant) knew (victim) was a [law enforcement officer] [firefighter] [emergency medical care provider] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [security officer employed by the board of trustees of a community college].
6. At the time of the assault, (victim) was engaged in the lawful performance of [his] [her] duties.

The court now instructs you that (name of official position of victim designated in charge) is a [law enforcement officer] [firefighter] [emergency medical care provider] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [security officer employed by the board of trustees of a community college].

In giving this sentence, do not refer to the victim by name. The instruction must state the class of officers to which the victim belongs, e.g., probation officer, correctional officer. See Wright v. State, 586 So.2d 1024 (Fla.1991).

Comment

Several statutes have been added in recent years providing for reclassification of assaults and batteries on designated classes: §§ 784.074, 784.075, 784.076, 784.078, 784.081, 784.082, 784.083, and 784,085.

This instruction was adopted in 1981 and amended in 1992 [603 So.2d 1175], and 1995 [657 So.2d 1152], and 2007.

8.11 BATTERY ON [LAW ENFORCEMENT OFFICER], [FIREFIGHTER], ETC.

§ 784.07(2) (b), Fla. Stat.

To prove the crime of Battery on a [Law Enforcement Officer] [Firefighter] [Emergency Medical Care Provider] [Traffic Accident Investigation Officer] [Traffic Infraction Enforcement Officer] [Parking Enforcement Specialist] [Security Officer Employed by the Board of Trustees of a Community College], the State must prove the following four elements beyond a reasonable doubt:

1. (Defendant) intentionally
[touched or struck (victim) against [his] [her] will].
[caused bodily harm to (victim) ].
2. (Victim) was a [law enforcement officer] [firefighter] [emergency medical care provider] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [security officer employed by the board of trustees of a community college].
3. (Defendant) knew (victim) was a [law enforcement officer] [firefighter ]Jumergencyjnedicalj:m^jnmy^ er] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [security officer employed by the board of trustees of a community college],
4. (Victim) was engaged in the lawful performance of [his] [her] duties when the battery was committed.

The court now instructs you that (name of official position of victim designated in charge) is a [law enforcement officer] [firefighter] [emergency medical care provider] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [security officer employed by the board of trustees of a community college].

In giving this sentence, do not refer to the victim by name. The instruction must state the class of officers to which the victim belongs, e.g., probation officer, correctional officer. See Wright v. State, 586 So.2d 1024 (Fla.1991).

Comment

This instruction was adopted in 1981 and amended in 1992 [603 So.2d 1175], and 1995 [657 So.2d 1152], and 2007.

8.12 AGGRAVATED ASSAULT ON [LAW ENFORCEMENT OFFICER], [FIREFIGHTER], ETC.

§ 784.07(2)(e), Fla. Stat.

To prove the crime of Aggravated Assault on a [Law Enforcement Officer] [Firefighter] [Emergency Medical Care Provider] [Traffic Accident Investigation Officer] [Traffic Infraction Enforcement Officer] [Parking Enforcement Specialist] [Security Officer Employed by the Board of Trustees of a Community College], the State must prove the following seven elements beyond a reasonable doubt. The first three elements define assault.

1. (Defendant) intentionally and unlawfully threatened, either by word or act, to do violence to (victim).
2. At the time, (defendant) appeared to have the ability to carry out the threat.
3. The act of (defendant) created in the mind of (victim) a well-founded fear that the violence was about to take place.
Give la or 4-b as applicable.
4. a. [The assault was made with a deadly weapon.]
b. [The assault was made with a fully-formed, conscious intent to commit (crime charged) upon (victim)]

If fb is alleged, define the crime charged.

5. (Victim) was at the time a [law enforcement officer] [firefighter] [emergency medical care provider] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [security officer employed by the board of trustees of a community college].
6. (Defendant) knew (victim) was a [law enforcement officer] [firefighter ]J>mergencyjnedical_ca«ymoyuler] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [security officer employed by the board of trustees of a community college],
7. At the time of the assault, (victim) was engaged in the lawful performance of [his] [her] duties.

The court now instructs you that (name of official position of victim designated in charge) is a [law enforcement officer] [firefighter] [emergency medical care provider] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [security officer employed by the board of trustees of a community college].

In giving this sentence, do not refer to the victim, by name. The instruction must state the class of officers to which the victim belongs, e.g., probation officer, correctional officer. See Wright v. State, 586 So.2d 1024 (Fla.1991).

Definition. Give if la alleged.

A weapon is a “deadly weapon” if it is used or threatened to be used in a way likely to produce death or great bodily harm.

Give if ka alleged.

It is not necessary for the State to prove that the defendant had an intent to kill.

Comment

This instruction was approved in 1992 [603 So.2d 1175], and amended in 1995 [657 So.2d 1152], and 2007.

8.13 AGGRAVATED BATTERY ON [LAW ENFORCEMENT OFFICER], [FIREFIGHTER], ETC.

§ 784.07(2)(d), Fla. Stat.

To prove the crime of Aggravated Battery on a [Law Enforcement Officer] [Firefighter] [Emergency Medical Care Provider] [Traffic Accident Investigation Officer] [Traffic Infraction Enforcement Officer] [Parking Enforcement Specialist] [Security Officer Employed by the Board of Trustees of a Community College], the State must prove the following five elements beyond a reasonable doubt. The first element is a definition of battery.

1. (Defendant)
[intentionally touched or struck (victim) against [his] [her] will]
[intentionally caused bodily harm to (victim) ].
Give 2a or 2b as applicable.
2. (Defendant) in committing the battery
a. [intentionally or knowingly caused
[great bodily harm to (victim)]]
[permanent disability to (victim)]]
[permanent disfigurement to (victim)]]
b. [used a deadly weapon].
3. (Victim) was a [law enforcement officer] [firefighter] [emergency medical care provider] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [security officer employed by the board of trustees of a community college].
4. (Defendant) knew (victim) was a [law enforcement officer] [firefighter] Jbmei^uncyMnfMiicaljmMymoy^ er] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [security officer employed by the board of trustees of a community college].
5. (Victim) was engaged in the lawful performance of [his] [her] duties when the battery was committed against [him] [her].

The court now instructs you that (name of official position of victim designated in charge) is a [law enforcement officer] [firefighter] [emergency medical care provider] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [security officer employed by the board of trustees of a community college].

In giving this sentence, do not refer to the victim by name. The instruction must state the class of officers to which the victim belongs, e.g., probation officer, correctional officer. See Wright v. State, 586 So.2d 1024 (Fla.1991).

Definition. Give if 2b alleged.

A weapon is a “deadly weapon” if it is used or threatened to be used in a way likely to produce death or great bodily harm.

Comment

The lesser included offense of Felony Battery is only applicable if element 2a is charged and proved.

This instruction was adopted in 1992 [603 So.2d 1175] and was amended in 1995 [657 So.2d 1152], and 2007.

8.14 AGGRAVATED BATTERY ON PERSON 65 YEARS OF AGE OR OLDER

§ 784.08(2)(a), Fla. Stat.

To prove the crime of Aggravated Battery on a Person 65 Years of Age or Older, the State must prove the following three elements beyond a reasonable doubt. The first element is a definition of battery.

1. (Defendant) intentionally
[touched or struck (victim) against [his] [her] will].
[caused bodily harm to (victim) ].
Give 2a or 2b as applicable.
2. (Defendant) in committing the battery
Give 3a, 2b, or Sc as applicable.
a. [intentionally or knowingly caused
[great bodily harm to (victim)!],
[permanent disability to (victim)!],
b. [used a deadly weapon!.
& — [knew or should have -known that (victim) was pregnant-],
3. (Victim) was at the time 65 years of age or older.
Definition. Give if 2b alleged.

A weapon is a “deadly weapon” if it is used or threatened to be used in a way likely to produce death or great bodily harm.

Comment

The lesser included offense of Felony Battery is only applicable if element 2a is charged and proved.

This instruction was adopted in 1997 [697 So.2d 84] and amended in 2007.

10.16 USING A FIREARM WHILE UNDER THE INFLUENCE

[§ 790.151, Fla. Stat. RESERVED]

To prove the crime of Using a Firearm While Under t he Influence, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) used a firearm.
2. (Defendant) was under the influence of [an alcoholic beverage] [any chemical substance] [any controlled substance] when affected to the extent that [his] [her] normal faculties were impaired, when using the firearm.

Definitions.

§ 790.001(6), Fla. Stat.

“Firearm” means any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; any destructive device; or any machine gun. The term “firearm” does not include an antique firearm unless the antique firearm is used in the commission of a crime.

“Use a firearm” means to discharge a firearm or to have a firearm readily accessible for immediate discharge.

“Readily accessible for immediate discharge” means loaded and in a person’s hand.

Give if applicable.

“Alcoholic beverages” are considered to be substances of any kind and description which contain alcohol.

§ 877.111, Fla. Stat

(Chemical substance) is a chemical substance under Florida law.

Ch. 89S, Fla. Stat

(Controlled substance) is a controlled substance under Florida law.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2007,

11.1 SEXUAL BATTERY — VICTIM LESS THAN 12 YEARS OF AGE

§ 794.011(2), Fla. Stat.

To prove the crime of Sexual Battery upon a Person Less Than 12 Years of Age, the State must prove the following two three elements beyond a reasonable doubt:

1. (Victim) was less than 12 years of age.
Give 2a, 2b, 2c, or 2d as applicable.
2. a. {(Defendant) committed an act [upon] [with] (victim) in which the sexual organ of the [ (defendant) ]
[ (victim) ] penetrated or had union with the [anus] [vagina]
[mouth] of the [ (victim) ] [ (defendant) ].
b. {(Defendant) committed an act upon (victim) in which the [anus] [vagina] of (victim) was penetrated by an object.!
c. {(Defendant) injured the sexual organ of (victim) in an attempt to commit an act [upon] [with] (victim) in which the sexual organ of the [ (defendant) ] [ (victim) ]
would have penetrated or would have had union with the [anus] [vagina] [mouth] of the [ (victim) ] [ (defendant) ].!
d. {(Defendant) injured the sexual organ of (victim) in an attempt to commit an act upon (victim) in which the [anus] [vagina] of (victim) would be penetrated by an object.!
Give 3a or 3b as applicable.
3. a. (Defendant) was 18 years of age or older at the time of the sexual battery.
b. (Defendant) was less than 18 years of age at the time of the sexual battery.

The-punishment provided by law- for sexual battery upon a person less than 1-2 years of age is greater depending upon the age of the defendant, — Therefore, if jmu find the defendant guilty of sexual battery upon a person less than -12 years of age and you further find that at the time of the sexual battery the defendant was 18-years of-age or older, you should find [him] [her] guilty of sexual batter}^ upon a person less than 12 years of age by- a person 18 years of age or older,

If you find that the defendant was not 18 years of-age or older but did commit the sexual — battery, you should find [him] [her] guilty-only of sexual battery-upon a- person-less than 12 years of age by a person under 18 years of-age.

Give if applicable.

However, any act done for bona fide medical purposes is not a sexual battery.

Definition. Give if applicable.

“Union” means contact.

In the event that multiple perpetrators is charged and proven, give instruction on enhancement. § 791.023, Fla. Stat.

The option of the word “[with] (victim)” in 2a and 2c is provided to reflect the manner in which the crime was committed. See Coleman v. State, 484 So.2d 624 (Fla. 1st DCA 1986), at pages 627, 628.

Comment

This instruction was adopted in 1981 and was amended in 1987 [508 So.2d 1221], and 1995 [657 So.2d 1152], and 2007, by adding 8(a) and 3(b) pursuant to Glover v. State, 863 So.2d 236 (Fla.2003).

13.1 BURGLARY

§ 810.02, Fla. Stat.

Give this statement of the elements if the charge is unlawful entryi._

To prove the crime of Burglary, the State must prove the following three [two] [three] elements beyond a reasonable doubt:

1. (Defendant) entered a [structure] [conveyance] owned by or in the possession of (person alleged).
2. (Defendant) did not have the permission or consent of (person alleged), or -anyone-authorized to act for him, -to [enter] [remain in] the [structure] — [conveyance]—at—the time.
3.2. At the time of entering the [structure] [conveyance], (defendant) had a fully-formed, conscious the intent to commit the offense of [an offense] [ (the crime alleged) ] in that [structure] [conveyance].

The offense intended cannot be trespass or burglary.

Give element 3 only if defendant meets his or her burden of production that he or she had an invitation or license to enter, or that the premises were open to the public. See State v. Hicks, 421 So.2d 510 (Fla.1982) and State v. Waters, 436 So.2d 66 (Fla.1983).

3. [ (Defendant) was not [licensed] [invited] to enter the [structure] [conveyance].] [The premises were not open to the public at the time of the entering.]

Give if applicable.

If the [license] [invitation] to enter was obtained by (defendant’s) trick or fraud or deceit, then the [license] [invitation] to enter was not valid.

Give if applicable.

If (defendant) entered premises that were open to the public, but then entered an area of the premises that [he] [she] knew was not open to the public, (defendant) committed a burglary if [he] [she] entered that non-public area with the intent to commit [an offense] [ (the crime alleged)] in that non-public area.

Give if applicable. § 810.07 Fla. Stat.

You may infer that (defendant) had the intent to commit a crime inside a [structure] [conveyance] if the [entering] [attempted entering] of the [structure] [conveyance] was done stealthily and without the consent of the owner or occupant.

The entry necessary need not be the whole body of the defendant. It is sufficient if the defendant extends any part of the body far enough into the [structure] [conveyance] to commit [an offense] [ (the exime alleged) ].

Give this statement of the elements if the charge is unlawfully remaining⅛

To prove the charge crime of Burglary, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) had permission or consent to enter a [structure] [conveyance] owned by or in the possession of (person alleged).
2. (Defendant), after entering the [structure] [conveyance], remained therein
Give 2a, 2b, or 2c, as applicable.
a. surreptitiously and with the fully-formed — conscious intent to commit the offense of (crime alleged) [an offense] [ (the crime alleged) ] inside the [structure] [conveyance],
b. after permission to remain had been withdrawn and with the fully-formed — conscious intent to commit the offense-of (crime alleged) [an offense] [ (the crime alleged) ] inside the [structure] [conveyance],
c.with the fully-formed conscious intent to commit or attempt to commit the offense of [a forcible felony] [ (the forcible felony alleged) ].

Define the crime or forcible felony alleged. The offense intended cannot be trespass or burglary.

Give whichever-bracketed language ap-W V uuu

A person may be-guilty of this offense [if he or she originally— entered the premises at a time when they were open to the public, but-remained there after he or she knew that the premises were closed to the public]

[if he or-she entered into or-remained in areas of the premises which he or-she knew or should have known were not open to the public],

if he or she had the intent to commit the crime described in- the charge.

Proof-of-the entering of-aN-str u ctur e ] [conveyance] stealthily and without the consent of-the owner or occupant may justify a finding -that the entering was with the-intent to commit-a crime if, from all the surrounding facts and-eir-cumstances, you are convinced beyond a reasonable-doubt-that the intent existed,

The entry necessary need not be the whole body- of the-defendant. It is sufficient if the-defendant extends any part of the body far enough into the [structure] [conveyance]-to commit (crime alleged)

Proof of intent.

The intent with which an act is done is an operation of the mind and, therefore, is not always capable of direct and positive proof. It may be established by circumstantial evidence like any other fact in a case.

Even though an unlawful [entering] [remaining in] a [structure] [conveyance] is proved, if the evidence does not establish that it was done with the intent to commit (crime alleged) [an offense] [ (the crime alleged) ], the defendant must be found not guilty of burglary.

Proof of possession of stolen property.

Proof of unexplained possession by an accused of property recently stolen by means of a burglary may justify a conviction of burglary with intent to steal that property if the circumstances of the burglary and of the possession of the stolen property, when considered in the light of all evidence in the case, convince you beyond a reasonable doubt that the defendant committed the burglary.

Definitions. Give as applicable.

§ 810.011(1), Fla. Stat.

“Structure” means any building of any kind, either temporary or permanent, that has a roof over it, and the enclosed space of ground and outbuildings immediately surrounding that structure.

§ 810.011(3), Fla. Stat.

“Conveyance” means any motor vehicle, ship, vessel, railroad car, trailer, aircraft, or sleeping car; and to enter a conveyance includes taking apart any portion of the conveyance.

Enhanced penalty. — Give-a& applieabler

The punishment provided by law for-the crime of burglary is greater if the burglary was committed-under certain aggravating circumstances. — Therefore, if you find the defendant- guilty-of burglary, you must then consider whether the State- has farther proved those-cire-umstanees.

With an assault.

If you find that in the course of committing the burglary If you find (defendant) guilty of burglary, you must also determine if the State has proved beyond a reasonable doubt whether, in the course of committing the burglary, (defendant) the defendant made an assault assaulted upon any person.^-you -should find [him] [her]- guilty-of burglary-during which an assault has been- committed* An assault is an intentional and unlawful threat either by word or act to do violence to another at a time when the defendant appeared to have the ability to carry out the threat and [his] [her] act created a well-founded fear in the other person that the violence was about to take place.

With a battery.

If you find (defendant) guilty of burglary, you must also determine if the State has proved beyond a reasonable doubt whether, in the course of committing the burglary, (defendant) battered any person. A battery is an actual and intentional touching or striking of another person against that person’s will or the intentional causing of bodily harm to another person.

WMe armed.

If you-find that in the course of committing — the -burglary, the If you find (defendant) guilty of burglary, you must also determine if the State has proved beyond a reasonable doubt whether, in the course of committing the burglary, (defendant) was armed or armed [himself] [herself] within the [structure] [conveyance] with [explosives] or [a dangerous weapon]., you-should find [him] [her] guilty of burglary while armed.

Definitions. Give as applicable. § 790.001(5), Fla. Stat. See exceptions § 790.001(5)(a)-(d), Fla. Stat.

“Explosive” means any chemical compound or mixture that has the property of yielding readily to combustion or oxidation upon application of heat, flame, or shock, including but not limited to dynamite, nitroglycerin, trinitrotoluene, or ammonium nitrate when combined with other ingredients to form an explosive mixture, blasting caps, and detonators.

A “dangerous weapon” is any weapon that, taking into account the manner in which it is used, is likely to produce death or great bodily harm.

Structure is a dwelling.

If you-find that while the defendant made no-assault -and was -unarmed, If you find (defendant) guilty of burglary, you must also determine if the State has proved beyond a reasonable doubt whether the structure [entered] [remained in] was a dwelIing:r-you should find [him] [her] guilty of burglary of a dwelling.

Definition. Give as applicable.

“Dwelling” means a building [or conveyance] of any kind, including any attached porch, whether such building [or conveyance] is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the enclosed space of ground and outbuildings immediately surrounding it.

Human being in structure or conveyance.

If-you find-that while the defendant made-no assault and was-unarmed, If you find (defendant) guilty of burglary, you must also determine if the State has proved beyond a reasonable doubt whether, in the course of committing the burglary, there was a human being in the [structure] [conveyance], at the time [he] [she] [entered] [remained in] the [structure] [conveyance],, you should find [him] [her] guilty of burglary of a [structure] [conveyance] with a human-being in the [structure] [conveyance-].

Dwelling or structure with use of motor vehicle or damage.

If you find (defendant) guilty of burglary, you must also determine if the State has proved beyond a reasonable doubt whether, in the course of committing the burglary, (defendant) entered a [dwelling] [structure] and

L used a motor vehicle as an instrumentality, other than merely as a getaway vehicle, to assist in committing the offense, and thereby damaged the [dwelling] [structure],
or
2. caused damage to the [dwelling] [structure] [property] within the [dwelling] [structure], in excess of $1,000.
In an area that is subject to a state of emergency, the definition of structure, dwelling, and conveyance may be different dunng a state of emergency. See § 810.011, Fla. Stat.
If you find (defendant) guilty of burglary, you must also determine if the State has proved beyond a reasonable doubt whether, in the course of committing the burglary, the [structure] [conveyance] was within an area that the governor had declared was subject to a state of emergency under Chapter 252, the “State Emergency Management Act.”

With no aggravating-G-mziimstcmees

If you find that the defendant committed-the burglary without any aggravating circumstances, you should find [him] [her] guilty only of burglary,

§ 810.011(4), Fla. Stat.

An act is committed “in the course of committing” if it occurs in the attempt to commit the offense or in flight after the attempt or commission.

§ 790.001(5), Fla. Stat,

“Explosive” means-any-chemical compound-or mixture that has the property of yielding readily to combustion or oxidation-upon application-of heat, flame, or shock, including but-not limited to dynamite^ nitroglycerin, trinitrotoluene, or ammonium nitrate-when combined with other ingredients to-form an explosive mixture, blasting caps,-and detona-

If necessary see exceptions- set otit in § 791.01-md-Qhapter 558, FlaStat.

A “dangerous weapon” is any weapon that» taking into account the manner -in which it is used» is likely--to produce death or great bodily harm,

“Dwelling” means a building [or conveyance] of any kind» including any attached-porch» whether such-building [or conveyance] is temporary-or-permanent, mobile or immobile» which-has a roof over it and is designed to -be-occupied-by people lodging therein at night» together with the enclosed space of ground and outbuildings- immediately surrounding ⅛

Therefore» it you find the defendant guilty of burglary» it-w-ifl-be necessary for you to-state in your verdict whether the defendant (insert aggravating circumstances charged).

Comment

This instruction was adopted in 1981 and amended in 1985 [477 So.2d 985], 1997 [697 So.2d 84], and 2003 [850 So.2d 1272], and 2007. It should be given for offenses committed after July 1, 2001. See § 810.02, Fla. Stat. (2002). For guidance on instructions for burglary offenses committed between February 2000 and before July 1, 2001, see State v. Ruiz, 863 So.2d 1205 (Fla.2003) and Burnes v. State, 861 So.2d 78 (Fla. 3d DCA 2003).

13.5 (a) TRESPASS ON SCHOOL GROUNDS OR FACILITIES

§ 810.097, Fla. Stat.

To prove the crime of Trespass on School Grounds or Facilities, the State must prove the following two elements beyond a reasonable doubt:

Give la or lb as applicable.
L a. (Defendant) entered or remained on the campus of (school name).
b. (Defendant) entered or remained on (facility name) owned by (school name).
Give 2a or 2b as applicable.
2. a. (Defendant) did not have any legitimate business on the campus or any other authorization, license, or invitation to enter or remain upon school property.
b. (Defendant) was a student under suspension or expulsion at the time he or she entered or remained on the campus or any other facility owned by a school.

Definition.

“School” means the grounds or any facility of any kindergarten, elementary school, middle school, junior high school, or secondary school, whether public or non-public.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2007.

13.5 (b) TRESPASS ON SCHOOL GROUNDS OR FACILITIES AFTER WARNING BY PRINCIPAL OR DESIGNEE

§ 810.097(2), Fla. Stat.

To prove the crime of Trespass on School Grounds or Facilities After Warning by Principal or Designee, the State must prove the following two elements beyond a reasonable doubt:

L (Defendant) entered or remained on the campus or any facility of (school name).
2. The principal or [his] [her] desig-nee [told or directed the defendant to leave the campus or facility] [told the defendant not to enter the campus or facility] of (school name).

Definition.

“School” means the grounds or any facility of any kindergarten, elementary school, middle school, junior high school, or secondary school, whether public or non-public.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2007.

14.2 DEALING IN STOLEN PROPERTY (FENCING)

§ 812.019(1), Fla. Stat.

To prove the crime of (crime charged) Dealing in Stolen Property (Fencing), the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) [trafficked in] [endeavored to traffic in] (property alleged).
2. (Defendant) knew or should have known that (property alleged) was stolen.

Inferences. Give if applicable. § 812.022(2), Fla. Stat.

Proof of possession of recently stolen property, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.

Inferences. Give if applicable. § 812.022(3), Fla. Stat.

Proof of the purchase or sale of stolen property at a price substantially below the fair market value, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property knew or should have known that the property had been stolen.

Inferences. Give if applicable. § 812.022(1), Fla. Stat.

Proof of the purchase or sale of stolen property by a dealer in property, out of the regular course of business or without the usual indicia of ownership other than mere possession, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property knew or should have known that it had been stolen.

Inferences. Give if applicable. § 812.022(5), Fla. Stat.

Proof that a dealer who regularly deals in used property possesses stolen property, upon which a name and phone number of a person other than the offer- or of the property are conspicuously displayed, gives rise to an inference that the dealer possessing the property knew or should have known that the property was stolen.

Inferences. Give if applicable. § 812.022(6), Fla. Stat.

Proof that a person was in possession of a stolen motor vehicle and that the ignition mechanism of the motor vehicle had been bypassed or the steering wheel locking mechanism had been broken or bypassed, unless satisfactorily explained, gives rise to an inference that the person in possession of the stolen motor vehicle knew or should have known that the motor vehicle had been stolen.

Definitions.

§ 812.012(8), Fla. Stat.

“Property” means anything of value, and includes:

real property, including things growing on, affixed to and found in land;
tangible or intangible personal property, including rights, privileges, interests, and claims; and services.

§§ 812.012(6), 812.028(8), Fla. Stat.

“Stolen property” means property that has been the subject of any criminally wrongful taking or if the property has not been stolen, that it was offered for sale to (defendant) as stolen property.

§ 812.012(7), Fla. Stat.

“Traffic” means:

to sell, transfer, distribute, dispense or otherwise dispose of property; and
to buy, receive, possess, obtain control of or use property with the intent to sell, transfer, distribute, dispense or otherwise dispose of that property.

Comment

This instruction was adopted in 1981 and amended in 1989 [543 So.2d 1205], and in 2007, by adding the Inferences in § 812.022(2)-(6), Fla. Stat.

14.3 DEALING IN STOLEN PROPERTY (ORGANIZING)

§ 812.019(2), Fla.Stat.

To prove the crime of (crime charged) Dealing in Stolen Property (Organizing), the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) [initiated] [organized] [planned] [financed] [directed] [managed] [supervised] the theft of (property alleged).
2. (Defendant) trafficked in the (property alleged).

Inferences. Give if applicable. § 812.022(2), Fla. Stat.

Proof of possession of recently stolen property, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.

Inferences. Give if applicable. § 812.022(3), Fla. Stat.

Proof of the purchase or sale of stolen property at a price substantially below the fair market value, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property knew or should have known that the property had been stolen.

Inferences. Give if applicable. § 812.022(1), Fla. Stat.

Proof of the purchase or sale of stolen property by a dealer in property, out of the regular course of business or without the usual indicia of ownership other than mere possession, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property knew or should have known that it had been stolen.

Inferences. Give if applicable. § 812.022(5), Fla. Stat.

Proof that a dealer who regularly deals in used property possesses stolen property, upon which a name and phone number of a person other than the offer- or of the property are conspicuously displayed, gives rise to an inference that the dealer possessing the property knew or should have known that the property was stolen.

Inferences. Give if applicable. § 812.022(6), Fla. Stat.

Proof that a person was in possession of a stolen motor vehicle and that the ignition mechanism of the motor vehicle had been bypassed or the steering wheel locking mechanism had been broken or bypassed, unless satisfactorily explained, gives rise to an inference that the person in possession of the stolen motor vehicle knew or should have known that the motor vehicle had been stolen.

Definitions.

§ 812.012(3), Fla.Stat.

“Property” means anything of value, and includes:

real property, including things growing on, affixed to and found in land;
tangible or intangible personal property, including rights, privileges, interests, and claims; and services.

§§ 812.012(6), 812.028(3), Fla. Stat.

“Stolen property” means property that has been the subject of any criminally wrongful taking or if the property has not been stolen, that it was offered for sale to (defendant) as stolen property.

§ 812.012(7), Fla. Stat.

“Traffic” means:

to sell, transfer, distribute, dispense or otherwise dispose of property; and
to buy, receive, possess, obtain control of or use property with the intent to sell, transfer, distribute, dispense or otherwise dispose of that property.

Comment

This instruction was adopted in 1981 and amended in 1989 [543 So.2d 1205], and in 2007, by adding the Inferences in § 812.022(2)-(6), Fla. Stat.

20.14 HARASSMENT BY USE OF PERSONAL IDENTIFICATION INFORMATION

§ 817.568(4), Fla. Stat.

To prove the crime of Harassment by Use o f Personal Identification Information, the State must prove the following three elements beyond a reasonable doubt:

L (Defendant) willfully and without authorization [possessed] [used] [attempted to use] personal identification information concerning (victim).
2. [He] [She] did so without first obtaining the consent of (victim).
3. [He] [She] did so with the purpose of harassing (victim).

Definitions.

“Willfully” means intentionally and purposely.

“Authorization” means empowerment, permission, or competence to act.

“Personal identification information” means any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual, including any name, postal or electronic mail address, telephone number, social security number, date of birth, mother’s maiden name, official state or United States issued driver’s license or identification number, alien registration number, government passport number, employer or taxpayer’s identification number, Medicaid or food stamp account number, bank account number, credit or debit card number or personal identification number or code assigned to the holder of a debit card by the issuer to permit authorized use of such card, unique biometric data such as fingerprint, voice print, retina or iris image, or other unique physical representation, unique electronic identification number, address, or routing code, medical record, telecommunication identifying information or access device, or other number or information that can be used to access a person’s financial resources.

“Harass” means to engage in conduct directed at a specific person that is intended to cause substantial emotional distress to such person and serves no legitimate purpose. “Harass” does not mean to use personal identification information for accepted commercial purposes and does not include constitutionally protected conduct such as organized protests.

Enhanced penalty. Give if applicable. See § 817.568(5) and (10), Fla. Stat., which if alleged will require an interrogatory.

Comment

This instruction was adopted in 2007.

20.15 FRAUDULENT USE OF PERSONAL IDENTIFICATION INFORMATION OF A MINOR

§ 817.568(6), Fla. Stat.

To prove the crime of Fraudulent Use of Personal Identification Information of a Minor, the State must prove the

following three elements beyond a reasonable doubt:

L (Defendant) willfully and without authorization fraudulently used personal identification information concerning (victim).
2. (Victim) was less than 18 years of age.
3. (Defendant) did so without first obtaining the consent of (victim) or [his] [her] legal guardian.

Definitions.

“Willfully” means intentionally and purposely.

“Fraudulently” means purposely or intentionally suppressing the truth or perpetrating a deception.

“Authorization” means empowerment, permission, or competence to act.

“Personal identification information” means any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual, including any name, postal or electronic mail address, telephone number, social security number, date of birth, mother’s maiden name, official state or United States issued driver’s license or identification number, alien registration number, government passport number, employer or taxpayer’s identification number, Medicaid or food stamp account number, bank account number, credit or debit card number or personal identification number or code assigned to the holder of a debit card by the issuer to permit authorized use of such card, unique biometric data such as fingerprint, voice print, retina or iris image, or other unique physical representation, unique electronic identification number, address, or routing code, medical record, telecommunication identifying information or access device, or other number or information that can be used to access a person’s financial resources.

Enhanced penalty. Give if applicable. See § 817.568(5) and (10), Fla. Stat, which if alleged will require an interrogatory.

Comment

This instruction was adopted in 2007.

20.16 FRAUDULENT USE OF PERSONAL IDENTIFICATION INFORMATION OF A MINOR BY A PARENT OR GUARDIAN

§ 817.568(7), Fla. Stat.

To prove the crime of Fraudulent Use of Personal Identification Information of a Minor by a [Parent] [Guardian], the State must prove the following three elements beyond a reasonable doubt:

L (Defendant) willfully and fraudulently used personal identification information concerning (victim).
2. (Victim) was less than 18 years of age
3. (Defendant) was [the parent of] [the legal guardian of] [exercised custodial authority over] (victim) at the time.

Definitions.

“Willfully” means intentionally and purposely.

“Fraudulently” means purposely or intentionally suppressing the truth or perpetrating a deception.

“Personal identification information” means any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual, including any name, postal or electronic mail address, telephone number, social security number, date of birth, mother’s maiden name, official state or United States issued driver’s license or identification number, alien registration number, government passport number, employer or taxpayer’s identification number, Medicaid or food stamp account number, bank account number, credit or debit card number or personal identification number or code assigned to the holder of a debit card by the issuer to permit authorized use of such card, unique biometric data such as fingerprint, voice print, retina or iris image, or other unique physical representation, unique electronic identification number, address, or routing code, medical record, telecommunication identifying information or access device, or other number or information that can be used to access a person’s financial resources.

Enhanced penalty. Give if applicable. See § 817.568(5) and (10), Fla. Stat., which if alleged will require an interrogatory.

Comment

This instruction was adopted in 2007. 20.18 FRAUDULENT CREATION, USE OR POSSESSION OF COUNTERFEIT PERSONAL IDENTIFICATION INFORMATION

§ 817.568(9), Fla. Stat.

To prove the crime of Fraudulent [Creation] [Use] [Possession] of Counterfeit Personal Identification Information, the State must prove the following three elements beyond a reasonable doubt: .

L (Defendant) willfully and fraudulently [created] [used] [possessed with intent to use] counterfeit or fictitious personal identification information.
Give 2a or 2b as applicable.
2. a. The personal identification information concerned a fictitious individual.
b. The personal identification information concerned a real individual whose consent had not first been obtained.
3. [He] [She] did so with intent to commit or facilitate the commission of a fraud on another person.

Definitions.

“Willfully” means intentionally and purposely.

“Fraudulently” means purposely or intentionally suppressing the truth or perpetrating a deception.

“Authorization” means empowerment, permission, or competence to act. “Personal identification information” means any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual, including any name, postal or electronic mail address, telephone number, social security number, date of birth, mother’s maiden name, official state or United States issued driver’s license or identification number, alien registration number, government passport number, employer or taxpayer’s identification number, Medicaid or food stamp account number, bank account number, credit or debit card number or personal identification number or code assigned to the holder of a debit card by the issuer to permit authorized use of such card, unique biometric data such as fingerprint, voice print, retina or iris image, or other unique physical representation, unique electronic identification number, address, or routing code, medical record, telecommunication identifying information or access device, or other number or information that can be used to access a person’s financial resources.

“Counterfeit or fictitious personal identification information” means any counterfeit, fictitious or fabricated information in the similitude of the data .just defined to you that, although not truthful or accurate, would in context lead a reasonably prudent person to credit its truthfulness and accuracy.

Enhanced 'penalty. Give if applicable. See § 817.568(5) and (10), Fla. Stat, which if alleged will require an interrogatory.

Comment

This instruction was adopted in 2007.

27.1 ESCAPE

§ 944.40, Fla. Stat.

To prove the crime of Escape, the State must prove the following three elements beyond a reasonable doubt:

Give la or lb as applicable.
1. (Defendant) was
a. funder arrest and in the lawful custody of a law enforcement official}.
b. fconvicted of a crime and sentenced to a term of imprisonment and committed to (institution alleged) by a court}.
Give 2a, 2b, or 2c as applicable.
2. While a prisoner, (defendant) was
a. {confined at (name of institution)}.
b. {being transported to or from a place of confinement}.
c. {working on a public road}.
3. (Defendant) escaped or attempted to escape by (read overt act from charge), intending to avoid lawful confinement.

Give if requested and applicable. See Kearse v. State, 662 So.2d 677 (Fla.1995) and Applewhite v. State, 874 So.2d 1276 (Fla. 5th DCA 2004).

Definitions.

“Transportation to a place of confinement” begins at the time an individual is placed under arrest.

An “arrest” takes place when the arresting officer intends to arrest; the arresting officer actually or constructively seizes the person to be arrested; the officer’s intent to arrest is communicated by the arresting officer to the person to be arrested; and the person to be arrested understands that communication. An “arrest” does not require that the law enforcement officer complete the act of acquiring total physical control over the person to be arrested.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 1981 and amended in 1989 and 2007.

      . The amendments to instructions 14.2— Dealing in Stolen Property (Fencing) and 14.3 — Dealing in Stolen Property (Organizing), add the four inferences enacted under sections 812.022(2)-(5), Florida Statutes, pertaining to evidence of dealing in stolen property. Subsequent to the Committee’s approval of its proposed changes to instructions 14.2 and 14.3, on June 7, 2006, Chapter 2006-107, section 1, Laws of Florida, was signed into law, creating an additional inference in respect to evidence of dealing in stolen property, i.e., specific to possession of a stolen motor vehicle. See § 812.022(6), Fla. Stat. (2006). Because it appears that the Committee intended to incorporate all inferences created by section 812.022, Florida Statutes, relating to dealing in stolen property, instructions 14.2 and 14.3 are modified to include the inference under section 812.022(6), Florida Statutes (2006).
      In addition, new instructions 20.14'— Harassment by Use of Personal Identification Information; 20.15 — Fraudulent Use of Personal Identification Information of a Minor; 20.16 — Fraudulent Use of Personal Identification Information of a Minor by a Parent or Guardian; and 20.18 — Fraudulent Creation, Use or Possession of Counterfeit Personal Identification Information, are modified to include the term "telephone number” under "Personal identification information” at the beginning of the fourth line, to bring the definition into accord with section 817.568(l)(f)l, Florida Statutes (2006).


text:
    Tracy Lynn SMITH, Personal Representative, Appellant, v. Matthew Wayne COLE, Deceased, Appellee.
    No. 1D07-0710.
    District Court of Appeal of Florida, First District.
    June 5, 2007.
    Rehearing Denied Aug. 23, 2007.
    Lester Makofka of Makofka and Makof-ka, Jacksonville, for Appellant.
    Mark Usdin, Jacksonville; Moses Meide, Jr., Jacksonville, for Appellee.
   PER CURIAM.

The appellant has sought review of the circuit court’s “Order on Motion for Leave to Amend Statement of Claim Against Estate Originally Filed by Maria Cole.” Upon consideration of the response to the Court’s order of February 14, 2007, directing the appellant to show cause why the appeal should not be dismissed for lack of jurisdiction, the Court has concluded that the order is not an appealable order. Cf. In re: Estate of Elliott, 798 So.2d 13 (Fla. 1st DCA 2001). Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

BROWNING, CJ., VAN NORTWICK, and HAWKES, JJ., concur.


author: ORFINGER, J.

text:
    Pat CRITELLI, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1042.
    District Court of Appeal of Florida, Fifth District.
    June 22, 2007.
    Rehearing Denied Aug. 10, 2007.

      James S. Purdy, Public Defender, and Rebecca M. Becker and Michael S. Becker, Assistant Public Defenders, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr. and Bright E. Collins, Assistant Attorney Generals, Daytona Beach, for Appellee.
   ORFINGER, J.

In 1989, Pat Critelli pled nolo contende-re to four counts of sexual activity with a minor, was adjudicated guilty, and then sentenced to prison followed by probation. Upon Mr. Critelli’s release from prison, at his request, his probation was transferred from Florida to Colorado under the Interstate Compact for Adult Offender Supervision (the “Interstate Compact”), sections 949.07 and 949.08, Florida Statutes (2005). In his application for transfer to Colorado, Mr. Critelli agreed in relevant part:

I understand that the fact that supervision will be in another state makes it likely that there will be certain differences between the supervision I would receive in Florida and the supervision which I will receive in any state to which I am asking to go.... I do hereby accept such differences in the course and character of supervision as may be provided, and I do state that I consider the benefits of supervision under the Compact to be worth any adjustments in my situation which may be occasioned.
6. Failure to comply with the above will be deemed to be a violation of the terms and conditions of supervision for which I may be returned to the State of Florida.

As a condition of accepting Mr. Critelli’s application, Colorado required, and Mr. Critelli accepted, several additional conditions not included in his Florida probation order (the “Colorado conditions”). The Colorado conditions included the requirement that Mr. Critelli “submit ... to any program of psychological or physiological assessment and monitoring at the direction of the probation officer or treatment provider. This includes the polygraph, pleth-ysmograph [“PPG”] and/or the Abel Screen to assist in treatment, planning and case monitoring.” Mr. Critelli was also required to submit a DNA sample.

Near the end of his probationary term, the Colorado authorities, believing that Mr. Critelli had failed to abide by the Colorado conditions, submitted a violation report to the Florida court, and a violation of probation proceeding commenced. After the trial court concluded that Mr. Cri-telli had violated his probation by failing to abide by the Colorado conditions, his probation was revoked and he was resen-tenced to prison.

On appeal, Mr. Critelli contends that (1) because the Colorado conditions were not a part of his original probation order, he could not be violated based on those conditions; (2) alternatively, the only penalty for violating the Colorado conditions was to be returned to Florida; and (3) there was no evidence that he willfully and substantially violated his probation. Finding no merit to Mr. Critelli’s claims, we affirm.

Mr. Critelli first argues that while Colorado was entitled to place additional conditions on him under the Interstate Compact, because those additional conditions were not orally pronounced at sentencing and made a part of his Florida probation order, his violation of the Colorado conditions is simply a breach of contract with Colorado, not a violation of his probation. We agree that generally, every sentence that imposes conditions of probation must be orally pronounced in open court. State v. Hart, 668 So.2d 589, 591-92 (Fla.1996); see Fla. R.Crim. P. 3.700(b). However, in this case, Mr. Critelli asked to have his probation transferred to Colorado. Colorado conditioned its acceptance on his agreement to the Colorado conditions. We view this as a voluntary modification of his probation. Mr. Critelli signed an Interstate Compact application under which he agreed to abide by both Florida’s and Colorado’s conditions of probation. There can be no doubt that Mr. Critelli was fully aware of the conditions of his probation added by Colorado and had the opportunity to object to those conditions. If Mr. Critelli did not wish to abide by the Colorado conditions, he did not have to sign the Interstate Compact and could have remained in Florida.

More significantly, Mr. Critelli contends that the only penalty for a violation of the Colorado conditions was to return him to Florida, not the revocation of his probation. Mr. Critelli points to his application for transfer of probation to Colorado; which states, “Failure to comply with the above will be deemed to be a violation of the terms and conditions of supervision for which I may be returned to the State of Florida.”

Section 949.07, Article XIV(2)(a), Florida Statutes (2005), provides: “All lawful actions of the Interstate Commission, including all rules and by-laws adopted by the Interstate Commission, are binding on the compacting states.” The Interstate Commission for Adult Offender Supervision Rules state:

RULE 4.103-1 Effect of special conditions or requirements
For purposes of revocation or other punitive action against an offender, the probation or paroling authority of a sending state shall give the same effect to a violation of special conditions or requirement imposed by a receiving state as if those conditions or requirement had been imposed by the sending state. Failure of an offender to comply with special conditions or additional requirements imposed by a receiving state shall form the basis of punitive action in the sending state notwithstanding the absence of such conditions or requirements in the original plan of supervision issued by the sending state. For purposes of this rule, the original plan of supervision shall include, but not be limited to, any court orders setting forth the terms and conditions of probation, any orders incorporating a plan of supervision by reference, or any orders or directives of the paroling or probation authority.

Interstate Comm’n for Adult Offender Supervision (Jan. 1, 2007) at 37, available at http://www. interstateeompact.org /about/history/ historicaVTCAOS_Rules.pdf (emphasis added). This rule clearly refutes Mr. Critelli’s argument. Further, Mr. Critelli should not be able to accept the benefits of his transfer to Colorado, and then fail to carry out the required conditions. See Bashlor v. State, 586 So.2d 488, 489 (Fla. 1st DCA 1991) (“Absent some jurisdictional flaw, Florida courts have repeatedly held that sentences imposed in violation of statutory requirements, which are to the benefit of the defendant and to which he agreed, may not be challenged after the defendant has accepted the benefits flowing from the plea, but has failed to carry out the conditions imposed on him.”).

Finally, Mr. Critelli argues that the evidence failed to show that he willfully and substantially violated his probation. Having carefully reviewed the record, we disagree. The record contains competent substantial evidence that Mr. Critelli violated the Colorado conditions, which resulted in a violation of his Florida probation.

AFFIRMED.

MONACO and EVANDER, JJ., concur.

      . We note that Mr. Critelli's argument that the Colorado conditions were not a part of his original probation order, and therefore, the only penalty for violating those conditions was to be returned to Florida, was not raised below. Hence, it was not preserved and generally cannot be addressed for the first time on appeal. Farinas v. State, 569 So.2d 425, 429 (Fla.1990) (holding "absent fundamental error, an issue will not be considered for the first time on appeal”). We elect not to do a fundamental error analysis because for the reasons explained hereafter, Mr. Critelli's argument fails on the merits.

      . Florida is a participant of the Interstate Commission for Adult Offender Supervision. § 949.07, Fla. Stat. (2005). Florida Administrative Code, Chapter 23-4, contains general terms outlining Florida’s participation in the Interstate Compact for Parole and Probation Supervision.


author: GROSS, J.

text:
    Larry LINER, individually and on behalf of all others similarly situated, Appellant, v. WORKERS TEMPORARY STAFFING, INC., Appellee.
    No. 4D05-4729.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2007.

      John G. Crabtree of the Florida Appellate Alliance, PLC, Key Biscayne, David J. George and Stuart A. Davidson, Lerach Coughlin Stoia Geller Rudman & Robbins, LLP, Boca Raton, Gregg I. Shavitz and Perry Tanksley of the Shavitz Labor Pool Law Firm, PLC, Boca Raton, and Shannon McLin Carlyle of the Florida Appellate Alliance, PLC, The Villages, for appellant.
    T. Todd Pittenger of Lowndes, Dros-dick, Doster, Kantor & Reed, P.A., Orlando, and Thomas R. Tatum of Brinkley, Morgan, Solomon & Tatum, Stanley, Lun-ny & Crosby, LLP, Fort Lauderdale, for appellee.
    James G. Brown of Ford & Harrison, LLP, Orlando, and Allen J. McKenna of Ford & Harrison, LLP, Orlando for ami-cus curiae Florida Management Attorneys, Inc.
   GROSS, J.

This case concerns the constitutionality of a section of the Labor Pool Act, Sections 448.20-448.25, Florida Statutes (2003). We affirm the circuit court’s finding that section 448.24(1)(b) is unconstitutionally vague.

The purpose of the Act is to “provide for the health, safety, and well-being of day laborers throughout the state and to establish uniform standards of conduct and practice for labor pools in the state.... ” § 448.21, Fla. Stat. (2003). Section 448.24(1)(b), which is central to this appeal, limits the amount that a labor pool may charge a day laborer for transportation:

(1) No labor pool shall charge a day laborer:
(b) More than a reasonable amount to transport a worker to or from the designated worksite, but in no event shall the amount exceed the prevailing rate for public transportation in the geographic area[.]

For each violation of the Act, a worker is entitled to recover the greater of “actual and consequential damages” or $1,000, and “costs.” § 448.25(1), Fla. Stat. (2003). The $1,000 fine provision makes the statute penal in nature; in almost all instances where there might be a statutory violation for overcharging, the $1,000 fine will exceed actual damages. The fine is the statutory hammer designed to deter noncompliance with the statute, just as one purpose of a prison sentence is to deter violations of a criminal law.

Larry Liner worked as a day laborer at a labor hall operated by appellee Workers Temporary Staffing, Inc., which employs 1,500 workers at its Fort Lauderdale branch. WTS charged day laborers $1.50 for a one way trip and $3.00 round trip for transportation to job sites in the Palm Beach, Broward, and Dade County area.

Liner filed a class action complaint against WTS alleging that the labor pool company had violated section 448.24(l)(b) by overcharging day laborers for transportation between WTS labor halls and work-sites in southeast Florida. WTS counterclaimed for declaratory relief, contending that section 448.24(l)(b) was unconstitutional.

Pursuant to a case management order, the trial court heard testimony on Liner’s individual claim and WTS’s declaratory judgment counterclaim. Much of the evidence went to the difficult issue of how to define the terms “reasonable amount,” “prevailing rate,” and “geographic area” contained in section 448.24(l)(b). Because we hold that the statute is unconstitutional, we do not address the circuit court’s rulings on these issues.

Liner contended that he was overcharged 50 cents for each trip and that he incurred $265 in actual damages; Liner sought statutory damages of $177,000 under section 448.25(1).

The circuit court held that section 448.24(1)(b) was unconstitutional under the Due Process Clause of the Federal and Florida Constitutions because the statute failed “to give persons of common intelligence and understanding adequate warning or fair notice of the proscribed conduct.” We agree with the analysis of the circuit court.

A statute is “void for vagueness,” and thus violates due process, when “its prohibitions are not clearly defined.” Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). As the United States Supreme Court has explained:

Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.

Id. at 108-09, 92 S.Ct. 2294 (footnotes omitted).

Due process is violated when a statute “forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning.” See D’Alemberte v. Anderson, 349 So.2d 164, 166 (Fla.1977) (quoting Cline v. Frink Dairy Co., 274 U.S. 445, 47 S.Ct. 681, 71 L.Ed. 1146 (1927)). A statute is unconstitutional if its “language does not sufficiently convey definite warnings of the proscribed conduct when measured by common understanding and practice.” Id.; see also Grayned, 408 U.S. at 108-09, 92 S.Ct. 2294.

In Brown v. State, 629 So.2d 841 (Fla.1994), the supreme court held that the term “public housing facility” in section 893.13(1)(i), Florida Statutes (Supp.1990), violated the Due Process Clause because it did “not give adequate notice of what conduct [was] prohibited” and because its “imprecision” invited “arbitrary and discriminatory enforcement.” Id. at 842. Section 893.13(l)(i) imposed enhanced penalties upon those who sold, purchased, manufactured, delivered, or possessed controlled substances within 200 feet of a public housing facility. The supreme court wrote that the statute did not define a “public housing facility,” so that the phrase did not “give citizens fair warning about what conduct is forbidden.” Id. at 843. The court declined to consult dictionaries or imagine “a parade of hypothetical horribles” to discern the meaning of the term. Id.; see also Whitaker v. Dep’t of Ins. and Treasurer, 680 So.2d 528, 532 (Fla. 1st DCA 1996) (holding section 626.621(6), Florida Statutes, to be unconstitutionally vague because the phrase “ ‘detrimental to the public interest’ is subject to many interpretations” and the phrase “ ‘public interest’ is left to the fancy of the enforcing agency”).

Three terms in section 448.24(l)(b) have the same constitutional deficiency as the phrase “public housing facility” in Brown.

The first problematic term is the concept of a “reasonable amount.” A statute criminalizing drug possession would not stand constitutional muster if it allowed possession of a “reasonable amount” of a drug, but subjected the possessor of more than a reasonable amount of the drug to jail time. The concept of “reasonable amount” is not a precise enough standard to give a “person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Grayned, 408 U.S. at 108, 92 S.Ct. 2294. A judge or jury might find that a labor pool that charged $1.10 exceeded a reasonable charge by ten cents, so that it was responsible for a $1,000 fine for each overcharge; another fact finder might find the same charge to be reasonable. Thus, the statute “impermissibly delegates basic policy matters” to judges and juries “for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” Id. at 109, 92 S.Ct. 2294.

As the circuit court observed, a second vagueness problem concerns “public transportation,” another term not defined by the Labor Pool Act. The legislature has given the term various meanings in different statutes. See § 163.566(8), Fla. Stat. (2006); § 343.62(5), Fla. Stat. (2006). Although Liner contended that the meaning of “public transportation” is limited to bus service, such a limitation is not apparent from the context. Why should the ceiling on charges be limited to bus service, if transportation is to a job site far away from any bus line? As the circuit court observed, the meaning of “public transportation” was “significant because about 60% of Mr. Liner’s jobsites were not serviced by a bus route. In order to get to work, he would have had to utilize other forms of public transportation that would have greatly exceeded the $3.00 charged by WTS.”

A third vagueness problem identified by the circuit court is the imprecision of the term “geographic area,” which is important because it is used to determine the ceiling on permissible charges. WTS charged $3.00 round trip for job sites as far south as Coral Gables and as far north as Boynton Beach. This charge was below the cost of any available public transportation in the tri-county area. Liner amended his complaint to limit his claim to Broward County and contended that “geographic area” meant only one thing — county boundaries. The trial court succinctly summarized the vagueness problem:

While geographic area could mean the area serviced by WTS, or it could mean the worksites worked by Mr. Liner, [Liner] chose neither since either one would result in a decision favoring WTS.... Area serviced? A win for WTS. Jobsites worked? A win for WTS. County boundaries? A win for Mr. Liner. Once again, a wrong guess and WTS is liable for $177,000 in civil penalties plus costs ... to Mr. Liner alone.

For these reasons, we affirm the order of the circuit court.

WARNER and TAYLOR, JJ., concur.

      . Section 448.24(l)(b) was amended in 2006 to state:
      (1) No labor pool shall charge a day laborer:

      (b) More than a reasonable amount to transport a worker to or from the designated worksite, but in no event shall the amount exceed $1.50 each way[.]

      . The circuit court also held that section 448.25 is unconstitutional. We do not agree that the section is unconstitutionally vague.


author: SUAREZ, J.

text:
    Earl Lorenzo BULLARD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-3167.
    District Court of Appeal of Florida, Third District.
    July 5, 2007.
    Earl Lorenzo Bullard, in proper person.
    Bill McCollum, Attorney General, and Olga L. Villa, Assistant Attorney General, for appellee.
    Before RAMIREZ, SUAREZ, and CORTINAS, JJ.
   SUAREZ, J.

This motion arises out of an appeal of the trial court’s denial of the appellant’s Rule 3.800 motion. We find no merit as to appellant’s first claim of involuntary plea and therefore affirm the trial court’s denial. As to appellant’s claim that he was illegally sentenced as a habitual felony offender and as a habitual violent felony offender, the record now before us fails to make the required showing. See Fla. R.App. P. 9.141(b)(2)(A). Therefore, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the points on this post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed in part and remanded for further proceedings.


text:
    Daniel LLANES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-782.
    District Court of Appeal of Florida, Third District.
    July 5, 2007.
    Daniel Llanes, in proper person.
    Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before RAMIREZ, SHEPHERD, and CORTIÑAS, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this court must reverse unless the post-conviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


author: FLETCHER, J.

text:
    A2 GROUP, INC., Appellant, v. The CITY OF MIAMI BEACH, et al., Appellee.
    No. 3D07-1094.
    District Court of Appeal of Florida, Third District.
    July 5, 2007.
    Berger Singerman and Gabriel E. Nieto and John C. Shawde, Miami, for appellant.
    Jose Smith, North Miami Beach, and Jean Olin, Miami Beach; Alvarez, Armas Borron, for appellee.
    Before GERSTEN, C.J., and FLETCHER and SUAREZ, JJ.
   FLETCHER, J.

This is an appeal from a non-final order of the trial court denying A2 Group, Inc.’s emergency motion for temporary injunction. A2 seeks to restrain the City of Miami Beach from going forward with a contract awarded to Magnum Construction Management Corporation. The trial court denied A2’s motion for temporary injunction on the basis that A2 failed to carry its burden of likelihood of success on the merits of its claims against the City. Finding that the trial court was correct in its conclusion, we affirm.

Affirmed.


text:
    Ricky HOWARD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1333.
    District Court of Appeal of Florida, Third District.
    July 5, 2007.
    Rickey Howard, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and ROTHENBERG and LAGOA, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this Court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.