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    In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES— REPORT NO. 2011-03.
    No. SC11-1313.
    Supreme Court of Florida.
    May 17, 2012.
    As Revised on Denial of Rehearing July 12, 2012.
    Judge Jacqueline Hogan Scola, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Eleventh Judicial Circuit, Miami, FL, for Petitioner.
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted proposed changes to the standard jury instructions and asks that the Court approve both new and amended' standard instructions. We have jurisdiction. See art. V, § 2(a), Fla. Const.

On July 1, 2011, the Committee filed a report proposing amendments to the following five existing criminal instructions: 3.6(k) — Duress or Necessity; 3.9 — Weighing the Evidence; 3.10 — Rules for Deliberation; 6.4 — Attempted Second Degree Murder; and 28.5(a) — Racing on a Highway; proposing the following four new criminal jury instructions: 8.21 — Assault or Aggravated Assault, or Battery or Aggravated Battery, by a Detainee Upon Another Detainee or Upon a Visitor; 10.15(a) — Possession of a Firearm By a Person Under 24 Found Delinquent of Offense Which Would be a Felony if Committed by an Adult; 11.17 — Unlawful Residency of a Sex Offender; and 15.4— Resisting Recovery of Merchandise; and finally, proposing amendments to the criminal instructions for special proceedings, i.e., the involuntary civil commitment of sexually violent predators. Those proposals included two revised (1.01, Preliminary Instruction; and 2.08, Verdict and Submitting Case to Jury) and two new (Qualifications Instruction; and 1.001, Introduction) proposed instructions. The Committee’s proposals derived from recommendations by Committee members based upon changes in statutory and deci-sional law, and where no instruction existed for a particular criminal offense.

Except for those noted below, the Committee’s proposals are authorized for publication and use.

Proposed jury instruction 6.4, Attempted Second Degree Murder, raises the issue whether Attempted Voluntary Manslaughter is an offense by adding that crime to the table of Lesser Included Offenses to Attempted Second Degree Murder. The issue whether attempted voluntary manslaughter is an offense is presently under consideration in In re Standard Jury Instructions in Criminal Cases — Instruction 6.4- and Instruction 6.6, No. SC12 — 162 (Fla. petition filed Mar. 19, 2012). On March 19, 2012, the Court severed proposed instruction 6.4 from the instant case for consideration with proposed instruction 6.6 in Case No. SC12-462.

Proposed jury instruction 8.21 arose because there did not exist an instruction for the offense defined under section 784.082, Florida Statutes (2011) — “Assault or battery by a person who is being detained in a prison, jail, or other detention facility upon visitor or other detainee; reclassification of offenses.” In Hopkins v. State, No. SC10-2483 (Fla. order accepting jurisdiction filed June 1, 2011), the Court is considering whether that statute applies to juveniles held in juvenile facilities. For that reason, we sever proposed jury instruction 8.21 from the instant case for consideration under a new case number following the Court’s disposition in Hopkins.

Lastly, the Court rejects the Committee’s proposed new standard jury instruction 15.4, Resisting Recovery of Merchandise. The Committee sought to track the statutory language of section 812.015(6), Florida Statutes (2011), which provides as follows:

(6) An individual who, while committing or after committing theft of property, transit fare evasion, or trespass, resists the reasonable effort of a law enforcement officer, merchant, merchant’s employee, farmer, or a transit agency’s employee or agent to recover the property or cause the individual to pay the proper transit fare or vacate the transit facility which the law enforcement officer, merchant, merchant’s employee, farmer, or a transit agency’s employee or agent had probable cause to believe the individual had concealed or removed from its place of display or elsewhere or perpetrated a transit fare evasion or trespass commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, unless the individtial did not know, or did not have reason to know, that the person seeking to recover the property was a law enforcement officer, merchant, merchant’s employee, farmer, or a transit agency’s employee or agent. For purposes of this section the charge of theft and the charge of resisting may be tried concurrently.

(Emphasis added.) However, the Committee notes that neither the statute nor the case law is clear on whether knowledge or lack thereof is an element or an affirmative defense. Therefore, because the Court does not decide substantive issues in jury instruction cases, but rather allows the law to develop in actual cases and controversies, proposed instruction 15.4 is not authorized.

The new and revised instructions, as set forth in the appendix to this opinion, are authorized for publication and use. New language is indicated by underlining and deleted language is indicated by struck-through type. In authorizing the publication and use of these instructions, we express no opinion on the correctness of the instructions and remind all interested parties that this authorization forecloses neither requesting an additional or alternative instruction 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. The instructions shall be effective when this opinion becomes final.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

APPENDIX

3.6(k) DURESS OR NECESSITY

An issue in this case is whether (defendant) acted out of [duress] [necessity] in committing the crime of (crime charged) (lesser included offenses).

It is a defense to the (crime charged) (lesser included offenses) if the defendant acted out of [duress] [necessity]. In order to find the defendant committed the (crime charged) (lesser included offense) out of [duress] [necessity], you must find the following six elements:

1. The defendant reasonably believed [a danger] [an emergency] existed which was not intentionally caused by [himself] [herself].
2. a. The [danger] [emergency] threatened significant harm to [himself] [herself] [a third person].
Give 2b if escape charged.
b. The [danger] [emergency] threatened death or serious bodily injury.
3. The threatened harm must have been real, imminent, and impending.
Give ka if escape is not charged.
4. a. The defendant had no reasonable means to avoid the [danger] [emergency] except by committing the (crime charged) (lesser included offenses).

If escape is charged, the court must first determine whether the defendant has satisfied the conditions precedent enumerated in Muro v. State, kk5 So.2d 37k (Fla. 3d DCA 198k), and State v. Alcantaro, k07 So.2d 922 (Fla. 1st DCA 1981), and if so, give kb.

b. The defendant left [the place of [his] [her] confinement] [the vehicle in which [he] [she] was being transported] [to] [from] [his] [her] work on a public road because [he] [she] reasonably believed that escape was necessary to avoid the danger of death or serious injury, rather than with the intent to elude lawful authority.
5. The (crime charged) (lesser included offenses) must have been committed out of [duress] [necessity] to avoid the [danger] [emergency].
6. The harm that the defendant avoided must outweigh the harm caused by committing the (crime charged) (lesser included offenses).

Definitions.

“Imminent and impending” means the [danger] [emergency] is about to take place and cannot be avoided by using other means. A threat of future harm is not sufficient to prove this defense. Nor can the defendant use the defense of [duress] [necessity] if [he] [she] committed the crime after the danger from the threatened harm had passed.

The reasonableness of the defendant’s belief that [a danger] [an emergency] existed should be examined in the light of all the evidence.

In deciding whether it was necessary for the defendant to commit the (crime charged) (lesser included offenses), you must judge the defendant by the circumstances by which [he] [she] was surrounded at the time the crime was committed.

The [danger] [emergency] facing the defendant need not have been actual; however, to justify the commission of the (crime charged) (lesser included offenses), the appearance of the [danger] [emergency] must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the [danger] [emergency] could be avoided only by committing the (crime charged) (lesser included offenses). Based upon appearances, the defendant must have actually believed that the [danger] [emergency] was real.

If you have a reasonable doubt find from the-evidence that as to whether the defendant committed the (crime charged) (lesser included offenses) out of [duress] [necessity], you should find the defendant not guilty.

However, if you are convinced beyond a reasonable doubt find that the defendant did not commit the (crime charged) (lesser included offenses) out of [duress] [necessity], you should find the defendant guilty if all the elements of the charge have been proved.

Comment

Duress is not a defense an-intentional homicide to premeditated murder or attempted premeditated murder. See Wright v. State, 402 So.2d 498 (Fla. 3d DCA 1981) and Cawthon v. State, 382 So.2d 796 (Fla. 1st DCA 1980). It is unclear whether duress is a defense to other forms of homicide. Review Judge Ervin’s opinion in Chestnut v. State, 505 So.2d 1352 (Fla. 1st DCA 1987), and the language in Gahley v. State, 567 So.2d 456 (Fla. 1st DCA 1990), Corujo v. State, 424 So.2d 43 (Fla. 2d DCA 1982), and Hunt v. State, 753 So.2d 609 (Fla. 5th DCA 2000),

This instruction was adopted in July 1998 and amended in 2012.

3.9 WEIGHING THE EVIDENCE

It is up to you to decide what evidence is reliable. You should use your common sense in deciding which is the best evidence, and which evidence should not be relied upon in considering your verdict. You may find some of the evidence not reliable, or less reliable than other evidence.

You should consider how the witnesses acted, as well as what they said. Some things you should consider are:

1. Did the witness seem to have an opportunity to see and know the things about which the witness testified?
2. Did the witness seem to have an accurate memory?
3. Was the witness honest and straightforward in answering the attorneys’ questions?
4. Did the witness have some interest in how the case should be decided?
5. Does the witness’s testimony agree with the other testimony and other evidence in the case?

The instructions-emered-rmder 'paragraphs numbered 6-through 10¡ inclusive, are-not-common to all-eases. — These-numbered paragraphs should-be--included only as-required by the evidence.

Give as applicable.
6. Has the witness been offered or received any money, preferred treatment, or other benefit in order to get the witness to testily?
7. Had any pressure or threat been used against the witness that affected the truth of the witness’s testimony?
8. Did the witness at some other time make a statement that is inconsistent with the testimony [he] [she] gave in court?
9. Has Was it proved that the witness been convicted of a €rime[felony] [misdemeanor involving [dishonesty] [false statement]]?
10.Does the witness have a general reputation for [dishonesty] [truthfulness]? Was — it—proved that the general reputation of the witness for telling the truth and being honest was bad?

It is entirely proper for a lawyer to talk to a witness about what testimony the witness would give if called to the courtroom. The witness should not be discredited by talking to a lawyer about [his] [her] testimony.

You may rely upon your own conclusion about the witness. A juror may believe or disbelieve all or any part of the evidence or the testimony of any witness.

Comment

The court also may wish to give as part of this instruction the instructions covered under 3.9(a) and (b), concerning expert witnesses and accomplices. If so, the Committee recommends that they be given as additional numbered paragraphs, which would precede the last two unnumbered paragraphs of this instruction.

This instruction was adopted in 1981 and amended in 2012.

3.10 RULES FOR DELIBERATION

These are some general rules that apply to your discussion. You must follow these rules in order to return a lawful verdict:

1. You must follow the law as it is set out in these instructions. If you fail to follow the law, your verdict will be a miscarriage of justice. There is no reason for failing to follow the law in this case. All of us are depending upon you to make a wise and legal decision in this matter.
2. This case must be decided only upon the evidence that you have heard from the testimony of the witnesses [and have seen in the form of the exhibits in evidence] and these instructions.
3. This case must not be decided for or against anyone because you feel sorry for anyone, or are angry at anyone.
4. Remember, the lawyers are not on trial. Your feelings about them should not influence your decision in this case.

When the jury is to be involved in a penalty phase, omit the second sentence of paragraph 5.

5. Your duty is to determine if the defendant has been proven guilty or not, in accord with the law. It is the judge’s job to determine a proper sentence if the defendant is found guilty.
6. Whatever verdict you render must be unanimous, that is, each juror must agree to the same verdict.
Give 7 if applicable.
It is entirely-proper for a lawyer to talk to a-w-itness about what testimony the witness — would give-if called to the-courtroom, — The witness- should-not be-discredited -by talking to a lawyer about [his] [her] testimony.
Give 7 if applicable.
7. The jury is not to discuss any question[s] that [a juror] [jurors] wrote that was [were] not asked by the court, and must not hold that against either party.
8. Your verdict should not be influenced by feelings of prejudice, bias, or sympathy. Your verdict must be based on the evidence, and on the law contained in these instructions.

Comment

This instruction was adopted in 1981 and was amended in 1995 and September 2005 and 2012.

10.15(a) POSSESSION OF [A FIREARM] [AN ELECTRIC WEAPON OR DEVICE] [AMMUNITION] OR [CARRYING A CONCEALED WEAPON] BY A PERSON UNDER THE AGE OF 24 WHO HAS BEEN FOUND DELINQUENT OF AN OFFENSE WHICH WOULD BE A FELONY IF COMMITTED BY AN ADULT

§ 790.23(l)(b) or (d), Fla. Stat.

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

L (Defendant) had been found by [a court of this state] [a court of another [state] [territory] [country]] to have committed a delinquent act that would be a felony if committed by an adult [and which was punishable by imprisonment for a term exceeding 1 year].
Give 2a or 2b as applicable.
2. After being found to have committed that delinquent act, (defendant)
a. [owned] [had in [his] [her] care, custody, possession, or control] [a firearm] [an electric weapon or device] [ammunition],
b. [carried a concealed weapon.]
3. (Defendant) was under 24 years of age at the time [he] [she] [[owned] [possessed] [the firearm] [the electric weapon or device] [the ammunition]] [carried the concealed weapon],

Note to Judge: “Found” refers to a finding of fact by a court of competent jurisdiction and does not require an adjudication of quilt. State v. Menuto, 912 So.2d 603 (Fla. 2d DCA 2005).

Definitions.

§ 985.03(8), Fla. Stat.

“Delinquent act” is a violation of law found by a court to have been committed by any married or unmarried child under 18 years of age.

Give as appropriate.

§ 790.001(6), Fla. Stat.

A “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 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.] [A destructive device is (insert definition in § 790.001(4), Fla. Stat.) ].

§ 790.001(19), Fla. Stat.

“Ammunition” means an object consisting of all of the following:

a. A fixed metallic or nonmetal hull or casing containing a primer.
b. One or more projectiles, one or more bullets, or shot.
c. Gunpowder.

§ 790.001 (U), Fla. Stat.

An “electric weapon or device” means any device which, through the application or use of electrical current, is designed, redesigned, used, or intended to be used for offensive or defensive purposes, the destruction of life, or the infliction of injury.

§ 790.001(3), Fla. Stat.

A “concealed weapon” is legally defined as any dirk, metallic knuckles, slingshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon carried on or about a person in such a manner as to conceal the weapon from the ordinary sight of another person.

Ensor v. State, ⅛03 So.2d 3⅛9 (Fla.1981).

The term “on or about a person” means physically on the person or readily accessible to [him] [her].

The term “ordinary sight of another person” means the casual and ordinary observation of another in the normal associations of life. Absolute invisibility is not a necessary element to a finding of concealment.

Give if appropriate.

Robinson v. State, 5⅛7 So.2d 321 (Fla. 5th DCA 1989); Cook v. Crosby, 9U So.2d m (Fla. 1st DCA 2005).

A “deadly weapon” is any instrument which will likely cause death or great bodily harm when used in the ordinary and usual manner contemplated by its design and construction. An object can be a deadly weapon if its sole modern use is to cause great bodily harm. An object can also be a deadly weapon because of the way it is used or intended to be used or threatened to be used.

Give if 2a alleged.

“Care” and “custody” mean immediate charge and control exercised by a person over the named object. The terms care, custody, and control may be used interchangeably.

Possession.

To “possess” means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed.

Possession may be actual or constructive.

Actual possession means

a. the object is in the hand of or on the person, or
b. the object is in a container in the hand of or on the person, or
c. the object is so close as to be within ready reach and is under the control of the person.

Give if applicable.

Mere proximity to an object is not sufficient to establish control over the object when the object is not in a place over which the person has control.

Constructive possession means the object is in a place over which (defendant) has control, or in which (defendant) has concealed it.

In order to establish constructive possession of an object if the object is in a place over which the defendant does not have control, the State must prove the defendant’s (1) control over the object and (2) knowledge that the object was within the defendant’s presence.

Possession may be joint, that is, two or more persons may jointly possess an object, exercising control over it. In that case, each of those persons is considered to be in possession of that object.

If a person has exclusive possession of an object, knowledge of its presence may be inferred or assumed.

A special instruction may be given if the premises are jointly occupied and the object is located in a common area, in plain view, and in the presence of the owner or occupant. See Duncan v. State, 986 SoM 653 (Fla, pth DCA 2008).

If a person does not have exclusive possession of an object, knowledge of its presence may not be inferred or assumed.

Comment

This instruction was adopted in 2012,

The 3-year minimum mandatory sentence for actual possession of a firearm does not apply because this crime is not listed in § 775.087(2) Fla. Stat. Potter v. State, 997 So.2d 1215 (Fla. 1st DCA 2008).

11.17 UNLAWFUL RESIDENCY BY A SEX OFFENDER

§ 775.215(2) & (3), Fla. Stat:

To prove the crime of Unlawful Residency by a Sex Offender, the State must prove the following elements beyond a reasonable doubt:

L (Defendant) was convicted of Give a orb as applicable.
a. [Florida Statute 794.011] [Florida Statute 800.04] [Florida Statute 827.071] [Florida Statute 847.0135(5) ] [Florida Statute 847.0145]
b. a crime in another jurisdiction other than the State of Florida that is similar to Florida Statute [794.011] [800.04] [827.071] [847.0135(5) ] [847.0145]
2. The victim of that crime was less than 16 years of age when the crime was committed.
3. Give a orb as applicable.
a. The date that the crime occurred for the defendant’s conviction of Florida Statute [794.011] [800.04] [827.071] [847.0135(5) ] [847.071] was on or after October 1. 2004.
b. The date that the crime occurred for the defendant’s conviction in another jurisdiction that is similar to Florida Statute [794.011] [800.04] [827.071] [847.0135(5) ] [847.071] was on or after May 26, 2010.
4. After the conviction, (defendant) resided within 1,000 feet of a [school] [child care facility] [park] [playground].

It is not a crime for (defendant) to have lived within 1,000 feet of a [school] [child care facility] [park] [playground], if you find that (defendant) resided there before the [school] [child care facility] [park] [playground] was established. (Insert appropriate burden of persuasion allocated to appropriate party).

It is undetermined whether residence before establishment is an a,ffirmative defense or whether residence after establishment is an element of the offense. If an affirmative defense, the defendant must produce evidence that he or she was living in that location prior to establishment of the school, facility, park or playground. The trial court will then have to decide which party bears the burden of persuasion and what the burden of persuasion should be (preponderance, clear and convincing, beyond a reasonable doubt). See the opinions in Dixon v. United States, 518 U.S. 1, 126 S.Ct. 2137, 165 L.EdM 299 (2006) for guidance.

Give if applicable and provide a special verdict. See Fla. Stat. 775.215(2)(b).

If you find the defendant guilty of Unlawful Residency by a Sex Offender, you must then determine in your verdict whether the State has proven beyond a reasonable doubt that the conviction for Fla. Stat. [794.011] [800.04] [827.071] [847.0135(5) ] [847.0145] was classified as a felony of the [first degree or higher] [second or third degree].

Give if applicable and provide a special verdict. See Fla. Stat. 775.215(8)(b).

If you find the defendant guilty of Unlawful Residency by a Sex Offender, you must then determine in your verdict whether the State has proven beyond a reasonable doubt that the conviction in the other jurisdiction for the crime that was similar to Fla. Stat. [794.011] [800.04] [827.071] [847.0135(5) ] [847.0145] resulted in a penalty that is substantially similar to a felony of the [first degree or higher] [second or third degree].

Definitions.

§ 102.302 Fla. Stat.

“Child care facility” means any child care center or arrangement which provides child care for more than five children unrelated to the operator and which receives a payment, fee or grant for any child receiving care, regardless of whether the center or arrangement is operated for a profit, not including public or private schools, summer day camps, summer camps having children in full-time residence, Bible schools normally conducted during vacation periods, and operators of transient establishments.

§ 775.082; § 775.083 Fla. Stat.

“Life felony” is a crime which may be punished by a term of imprisonment for life or by imprisonment for a term of years not exceeding life imprisonment and a fine not exceeding $15,000.00.

“Felony of the first degree” is a crime which may be punished by a term of imprisonment not exceeding 30 years or, when specifically provided by statute, by imprisonment of a term of years not exceeding life imprisonment and a fine not exceeding $10,000.

“Felony of the second degree” is a crime which may be punished by a term of imprisonment not exceeding 15 years and a fine not exceeding $10,000.

“Felony of the third degree is a crime which may be punished by a term of imprisonment not exceeding 5 years and a fine not exceeding $5,000.”

§ 913.0135 Fla. Stat.

“Convicted” means there has been a determination of guilt as a result of a trial or the entry of a plea of guilty or nolo contendere, regardless of whether adjudication was withheld.

“Park” means all public and private property specifically designated as being used for recreational purposes and where children regularly congregate.

“Playground” means a designated independent area in the community or neighborhood that is designated solely for children and has one or more play structures.

§ 1003.01 Fla. Stat.

“School” means an organization of students, ranging from elementary through secondary or high school, for instructional purposes, or other public school level authorized under the rules of the State Board of Education. [A “school” includes a private school that is a nonpublic school as defined in s. 1002.01(2).] [“School” includes [a voluntary prekindergarten education program as described in s. 402.3025(1) ] [a public school as described in s. 403.3025(1) ] [the Florida School for the Deaf and Blind] [the Florida Virtual School as established under s. 1002.37] [K-8 Virtual School as established under s. 1002.415].] [“School” does not include facilities used exclusively for the education of adults.]

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

§ 79U-011 Fla. Stat. is Sexual Battery.

§ 800.0⅛ Fla. Stat. is Lewd or Lascivious Conduct.

§ 827.071 Fla. Stat. is Sexual Performance by a Child.

§ 8^7.0135(5) Fla. Stat. is Lewd or Lascivious Exhibition Using a Computer.

§ 8⅛7.01⅛5 Fla. Stat. is Selling or Buying a Minor for Sexual Depiction.

This instruction was adopted in 2012.

28.5(a) RACING ON A HIGHWAY

§ 316.191, Fla. Stat.

To prove the crime of Racing on a Highway, the State must prove the following element beyond a reasonable doubt:

Give a, b, c, or d as applicable.
(Defendant)
a. drove a motor vehicle in
b. [participated] [coordinated] [facilitated] [collected monies] at the location of
c. knowingly rode as a passenger in
d. purposefully caused moving traffic to slow or stop for

[a race] [a drag race or acceleration contest] [a speed competition or contest] [a test of physical endurance] [an exhibition of speed] [an attempt to make a speed record] on a [highway] [road] [parking lot].

Definitions.

Drag race means the operation of two or more motor vehicles from a point side by side at accelerating speeds in a competitive attempt to outdistance each other, or the operation of one or more motor vehicles to the same point, for the purpose of comparing the relative speeds or power of acceleration of such motor vehicle or motor vehicles within a certain distance or time limit.

Motor vehicle means any self-propelled vehicle not operated upon rails or guideway, including a motorcycle but not including any bicycle, motorized scooter, electric personal assistive mobility device, or moped.

Race means a competition involving the use of one or more motor vehicles in competition, arising from a challenge to demonstrate superiority of a motor vehicle or driver and the acceptance or competitive response to that challenge, either through a prior arrangement or in immediate response, in which the competitor attempts in an attempt to out-gain or outdistance another motor vehicle, to prevent another motor vehicle from passing, to arrive at a given destination ahead of another motor vehicle or motor vehicles, or to test the physical stamina or endurance of drivers over long distance driving routes. A race may be prearranged or may occur through a competitive response to conduct on the part of one or more drivers which, under the totality of circumstances, can reasonably be interpreted as a challenge to race.

Roadway means that portion of a highway improved, designed, or ordinarily used for vehicular travel, exclusive of the berm or shoulder. In the event a highway includes two or more separate roadways, the term roadway as used herein refers to any such roadway separately, but not to all such roadways collectively.

Street or highway means

(a) The entire width between the boundary lines of every way or place of whatever nature when any part thereof is open to the use of the public for purposes of vehicular traffic;

(b) The entire width between the boundary lines of any privately owned way or place used for vehicular travel by the owner and those having express or implied permission from the owner, but not by other persons, or any limited access road owned or controlled by a special district, whenever, by written agreement entered into under s. 316.006(2)(b) or (3)(b), a county or municipality exercises traffic control jurisdiction over said way or place;

(c) Any area, such as a runway, taxiway, ramp, clear zone, or parking lot, within the boundary of any airport owned by the state, a county, a municipality, or a political subdivision, which area is used for vehicular traffic but which is not open for vehicular operation by the general public; or

(d) Any way or place used for vehicular traffic on a controlled access basis within a mobile home park recreation district which has been created under s. 418.30 and the recreational facilities of which district are open to the general public.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 2009 and amended in 2012,

INVOLUNTARY CIVIL COMMITMENT OF SEXUALLY VIOLENT PREDATORS

§§ 394.910-394.930, Fla. Stat.

QUALIFICATIONS INSTRUCTION

Many of you have cell phones, computers, and other electronic devices. Even though you have not yet been selected as a juror, there are some strict rules that you must follow about using your cell phones, electronic devices and computers. You must not use any device to search the Internet or to find out anything related to any cases in the courthouse.

Between now and when you have been discharged from jury duty by the judge, you must not provide or receive any information about your jury service to anyone, including friends, co-workers, and family members. You may tell those who need to know where you are that you have been called for jury duty. If you are picked for a jury, you may tell people that you have been picked for a jury and how long the case may take. However, you must not give anyone any information about the case itself or the people involved in the case. You must also warn people not to try to say anything to you or write to you about your jury service or the case. This includes face-to-face, phone or computer communications.

In this age of electronic communication, I want to stress that you must not use electronic devices or computers to talk about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages, including e-mail and text messages, about your jury service. You must not disclose your thoughts about your jury service or ask for advice on how to decide any case.

After you are called to the courtroom, the judge will give you specific instructions about these matters. A judge will tell you when you are released from this instruction. All of us are depending on you to follow these rules, so that there will be a fair and lawful resolution of every case.

NOTE ON USE

This instruction should be given in addition to and at the conclusion of the instructions normally given to the prospective jurors. The portion of this instruction dealing with communication with others and outside research may need to be modified to include other specified means of communication or research as technology develops. This instruction was adopted in 2012,

1.001 INTRODUCTION

To be given when jurors are in courtroom, prior to voir dire.

In order to have a fair and lawful trial, there are rules that all jurors must follow. A basic rule is that jurors must decide the case only on the evidence presented in the courtroom. You must not communicate with anyone, including friends and family members, about this case, the people and places involved, or your jury service. You must not disclose your thoughts about this case or ask for advice on how to decide this case.

I want to stress that this rule means you must not use electronic devices or computers to communicate about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages to or from anyone about this case or your jury service.

You must not do any research or look up words, names, [maps], or anything else that may have anything to do with this case. This includes reading newspapers, watching television or using a computer, cell phone, the Internet, any electronic device, or any other means at all, to get information related to this case or the people and places involved in this case. This applies whether you are in the courthouse, at home, or anywhere else.

All of us are depending on you to follow these rules, so that there will be a fair and lawful resolution to this case. Unlike questions that you may be allowed to ask in court, which will be answered in court in the presence of the judge and the parties, if you investigate, research or make inquiries on your own outside of the courtroom, the trial judge has no way to assure they are proper and relevant to the case. The parties likewise have no opportunity to dispute the accuracy of what you find or to provide rebuttal evidence to it. That is contrary to our judicial system, which assures every party the right to ask questions about and rebut the evidence being considered against it and to present argument with respect to that evidence. Non-court inquiries and investigations unfairly and improperly prevent the parties from having that opportunity our judicial system promises. If you become aware of any violation of these instructions or any other instruction I give in this case, you must tell me by giving a note to the bailiff.

Comment

The portion of this instruction dealing with communication with others and outside research may need to be modified to include other specified means of communication or research as technology develops.

This instruction was adopted in 2012.

1.01

PRELIMINARY INSTRUCTION

Responsibility of jury and judge.

You have now been sworn as the jury to try this case. This is a civil case filed by the petitioner, the State of Florida, against the respondent (respondent’s name). The State alleges the respondent is a sexually violent predator and should be confined in a secure facility for long-term control, care, and treatment. By your verdict, you will decide the disputed issues of fact. I will decide the questions of law that arise during the trial, and before you retire to deliberate at the close of the trial, I will instruct you on the law that you are to follow and apply in reaching your verdict. In other words, it is your responsibility to determine the facts and to apply the law to those facts. Thus, the function of the jury and the function of the judge are well defined, and they do not overlap. This is one of the fundamental principles of our system of justice.

Steps in trial.

Before proceeding further, it will be helpful for you to understand how a trial is conducted. In a few moments, the attorneys for the parties will have an opportunity to make opening statements, in which they may explain to you the issues in the case and summarize the facts that they expect the evidence will show. Following the opening statements, witnesses will be called to testify under oath. They will be examined and cross-examined by the attorneys. Documents and other exhibits also may be received as evidence.

After all the evidence has been received, the attorneys will again have an opportunity to address you to make their final arguments. The statements that the attorneys now make and the arguments that they later make are not to be considered by you either as evidence in the case or as your instruction on the law. Nevertheless, these statements and arguments are intended to help you properly understand the issues, the evidence, and the applicable law, so you should give them your close attention.

Following the final arguments by the attorneys, I will instruct you on the law.

Things to be avoided.

You should give careful attention to the testimony and other evidence as it is received and presented for your consideration, but you should not form or express any opinion about the case until you have received all the evidence, the arguments of the attorneys, and the instructions on the law from me. In other words, you should not form or express any opinion about the case until you are retired to the jury room to consider your verdict, after having heard all of these matters.

You must decide this case only on the evidence presented during the trial in your presence, and in the presence of the respondent, the attorneys, and myself. You must not conduct any investigation of your own. This includes reading newspapers, watching television, listening to the radio, or using a computer, cell phone, the Internet, any electronic device, or any other means at all, to get information related to this case or the people and places involved in this case. This applies whether you are in the courthouse, at home, or anywhere else. Accordingly, you must not visit any of the places described in the evidence, or the scene of the occurrence that is the subject of the trial, or use the Internet to look at maps or pictures to see any place discussed during the trial, unless I direct you to view the scene.

Jurors must not have discussions of any sort with friends or family members about the case or the people and places involved. So, do not let even the closest family members make comments to you or ask questions about the trial. In this age of electronic communication, I want to stress again that just as you must not talk about this case face-to-face, you must not talk about this case by using an electronic device. You must not use phones, computers or other electronic devices to communicate. Do not send or accept any messages related to this case or your jury service. Do not discuss this case or ask for advice by any means at all, including posting information on an Internet website, chat room or blog.

Objections.

The attorneys are trained in the rules of evidence and trial procedure, and it is their duty to make all objections they feel are proper. When a lawyer makes an objection, the objection will either be overruled or sustained. If an objection is overruled, the witness will answer the question. If an objection is sustained or upheld, the witness cannot answer the question. If an objection is sustained, you must not speculate on what might have happened, or what the witness might have said, had the witness been permitted to answer the question. You should not draw any inference from the question itself.

The judge’s conferences with attorneys.

During the trial, it may be necessary to confer with the attorneys out of your hearing to discuss matters of law and other matters that require consideration by me alone. It is impossible to predict when such a conference may be required or how long it will last. When such conferences occur, they will be conducted so as to consume as little of your time as is necessary for a fair and orderly trial of the case.

Recesses.

During the trial we will take recesses. During these recesses you shall not discuss the case among yourselves or with anyone else, nor permit anyone to say anything to you or in your presence about the case. Further, you must not talk with the attorneys, the witnesses, or any of the parties about anything, until your deliberations are finished. In this way, any appearance of something improper can be avoided.

If during a recess you see one of the attorneys and he or she does not speak to you, or even seem to pay attention to you, please understand that the attorney is not being discourteous but is only avoiding the appearance of some improper contact with you. If anyone tries to say something to you or in your presence about this case, tell that person that you are on the jury trying this case, and ask that person to stop. If he or she keeps on, leave at once and immediately report this to the bailiff or court deputy, who will advise me.

At this time, the attorneys for the parties will have an opportunity to make their opening statements, in which they may explain to you the issues in the case and give you a summary of the facts they expect the evidence will show.

Comment

This instruction is based upon Florida Standard Jury Instruction (Civil) 1.1 and Kansas jury instructions regarding the civil commitment of sexually violent predators.

The portion of this instruction dealing with communication with others and outside research may need to be modified to include other specified means of communication or research as technology develops.

This instruction was adopted in 2000 and amended in 2012.

2.08 VERDICT AND SUBMITTING CASE TO JURY

In just a few moments you will be taken to the jury room by the bailiff. The first thing you should do is elect a foreperson. The foreperson presides over your deliberations, like the chair person of a meeting. It is the foreperson’s job to sign and date the verdict form when all of you have agreed on a verdict in this case. The foreperson will bring the verdict back to the courtroom when you return.

During deliberations, jurors must communicate about the case only with one another and only when all jurors are present in the jury room. You are not to communicate with any person outside the jury about this case. Until you have reached a verdict, you must not talk about this case in person or through the telephone, writing, or electronic communication, such as a blog, twitter, e-mail, text message, or any other means. Do not contact anyone to assist you during deliberations. These communications rules apply until I discharge you at the end of the case. If you become aware of any violation of these instructions or any other instruction I have given in this case, you must tell me by giving a note to the bailiff.

Before the respondent may be confined to a secure facility as a sexually violent predator, your verdict must be unanimous; that is, all of you must agree to the same verdict. The verdict must be the verdict of each juror as well as the jury as a whole.

If the verdict is not unanimous but a majority of the jury determines that the respondent is a sexually violent predator, the case may be retried before another jury.

If three or more jurors determine that the respondent is not proven to be a sexually violent predator [he] [she] will not be confined to a secure facility as a sexually violent predator and the case will not be retried before another jury.

The verdict must be in writing and for your convenience the necessary verdict form has been prepared for you. (Read and explain verdict form.)

In closing, let me remind you that it is important that you follow the law spelled out in these instructions in deciding your verdict. There are no other laws that apply to this case. Even if you do not like the laws that must be applied, you must use them. For two centuries we have lived by the constitution and the law. No juror has the right to violate rules we all share.

Comment

Based upon § 394.917, Fla. Stat.; Florida Standard Jury Instruction (Criminal) 2.09, Submitting Case to Jury. This instruction was adopted in 2000 and amended in 2012.

      . The amendments as reflected in the appendix are to the Criminal Jury Instructions as they appear on the Court's website at www. floridasupremecourt.org/jury_instructions/ instructions.shtml. We recognize that there may be minor discrepancies between the instructions as they appear on the website and the published versions of the instructions. Any discrepancies as to instructions authorized for publication and use after October 25, 2007, should be resolved by reference to the published opinion of this Court authorizing the instruction.


author: SILBERMAN, Chief Judge. NORTHCUTT, Judge,

text:
    Kevin BLACK, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-4976.
    District Court of Appeal of Florida, Second District.
    March 9, 2012.
    Rehearing Denied Aug. 20, 2012.

      James Marion Moorman, Public Defender, and Terrence E. Kehoe, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Chief Judge.

The charges in this case arose after Kevin Black struck two people with his automobile, injuring one victim and killing another victim and her unborn fetus. For these crimes, a jury convicted Black of two counts of second-degree murder, one count of attempted second-degree murder, and one count of leaving the scene of an accident involving injury. We affirm Black’s convictions and sentences but write to discuss his claims of error regarding the sufficiency of the evidence to support the murder and attempted murder convictions and the propriety of the jury instruction on the lesser-included offense of intentional act manslaughter.

During either the late evening hours of May 17, 2007, or the early morning hours of May 18, 2007, Black called a friend and told her that he could not take his life anymore. He said that he wanted to kill himself and that he intended to make big headlines and go out with a bang. He apparently set out to accomplish this mission shortly after 6:15 a.m. on May 18th. Black got into his Honda Accord and went on a deadly rampage that involved two separate collisions with innocent people on the streets and ended when his car collided with a tree.

Willie Grimsley, the first victim, described the first collision and Black’s actions. Grimsley was standing with other would-be laborers in a parking lot outside a labor pool. He heard a driver in the street slam on his brakes. The driver, who was later identified as Black, turned into the parking lot and accelerated in a straight line directly into the group. Black struck a man on a bicycle, and the man fell off and knocked Grimsley down. Black then struck Grimsley and pinned him against a parked car. As Grimsley looked on, Black backed up and drove out of the parking lot. Black headed away in the same direction he had been traveling before driving directly at the group.

At about 6:47 a.m., a police officer received a dispatch about the crash at the labor pool location. It took him about a minute to arrive at the scene. He encountered Grimsley and the bicyclist lying on the ground and waited for EMS to arrive. The officer put out a BOLO for Black’s vehicle, and his partner found the Accord crashed into a tree approximately three-quarters of a mile away. A witness to the second crash had observed Black’s car drive down the street, cross into the oncoming lane of traffic, and veer diagonally toward a woman on the sidewalk. The woman, who was seven months pregnant, unsuccessfully tried to dodge the car. The car hit the woman, lifted her up, and then hit her again. Both she and her unborn fetus were killed.

I. Sufficiency of the Evidence

Black argues that the trial court erred in denying his motion for judgment of acquittal on the murder and attempted murder charges because the State presented insufficient evidence that he acted with the requisite malice. He argues that his conduct may have been reckless but it did not evince malice and a depraved mind. He relies on a line of cases reversing second-degree murder convictions involving reckless driving based on the State’s failure to prove malice. See Hicks v. State, 41 So.3d 327 (Fla. 2d DCA 2010); Michelson v. State, 805 So.2d 983 (Fla. 4th DCA 2001); Ellison v. State, 547 So.2d 1003 (Fla. 1st DCA 1989), approved in part, quashed in part, 561 So.2d 576 (Fla.1990).

This court conducts a de novo review of the denial of a motion for judgment of acquittal. See Pagan v. State, 830 So.2d 792, 803 (Fla.2002). A conviction should not be reversed if it is supported by competent, substantial evidence. “If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” Id.

Section 782.04(2), Florida Statutes (2007), defines second-degree murder as “[t]he unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual.”

Conduct that is “imminently dangerous to another and evincing a depraved mind” is characterized by “an act or series of acts that: (1) a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and (2) is done from ill will, hatred, spite or an evil intent, and (3) is of such a nature that the act itself indicates an indifference to human life.”

State v. Montgomery, 39 So.3d 252, 255-56 (Fla.2010) (quoting Bellamy v. State, 977 So.2d 682, 683 (Fla. 2d DCA 2008)). The words “ill will, hatred, spite, or evil intent” equate to actual malice. Reed v. State, 837 So.2d 366, 368-69 (Fla.2002).

Black claims that there was no evidence that he bore the victims any ill will, hatred, or spite, or that he had an evil intent to hit them. We disagree and conclude that the State presented sufficient evidence to allow the jury to determine that Black acted with actual malice.

“Intent, being a state of mind, must in most cases be inferred from the circumstances.” Williams v. State, 239 So.2d 127, 130 (Fla. 4th DCA 1970). Shortly after threatening to kill himself by going out with a bang and making headlines, Black drove his car along the road, slammed on his brakes, turned, and careened his vehicle into a parking lot containing a group of people. Instead of taking any evasive maneuvers, he accelerated into the group and hit Grimsley. Black did not stop to render aid but backed away and sped off. Within minutes, he steered his car across the road and directly towards the woman on the sidewalk. It was reasonable for the jury to infer from Black’s actions that he was attempting to carry out his threat to commit suicide and that he intended to make his headlines by killing or seriously injuring innocent bystanders. Such a plan evinces ill will, hatred, spite, or an evil intent. See Anderson v. State, 254 Ga. 470, 330 S.E.2d 592, 594-95 (1985) (affirming malice murder conviction of defendant who drove his car at a high speed into oncoming traffic in an attempt to commit suicide by colliding with the victim’s car).

We cannot agree that Hicks, Michelson, and Ellison, as relied on by Black, require a contrary conclusion. In those cases, the courts reversed second-degree murder convictions based on reckless driving that resulted in death and injury to others but for which there was no evidence of actual malice toward the victims. See Hicks, 41 So.3d at 331; Michelson, 805 So.2d at 985; Ellison, 547 So.2d at 1006. A close examination of the facts of Hicks, Michelson, and Ellison reflects that the cases simply are not analogous to this case.

In Hicks, a defendant who was fleeing the police drove in the wrong direction on an interstate exit ramp and collided head-on with a car, injuring the driver and killing her passenger. 41 So.3d at 329. The driver testified that she was driving on an overpass when she saw the headlights of the defendant’s car. Id. at 331. She tried to avoid the collision, but she did not have enough time. A jury convicted the defendant of second-degree murder based on the death of the passenger. Id. at 329.

On appeal, this court found that trial counsel was ineffective for failing to move for a judgment of acquittal on this count. Id. at 331. We concluded that a judgment of acquittal would have been granted because the evidence did not establish that the defendant acted with the requisite malice. We noted that generally, second-degree murder is committed by a person who knows the victim and has developed some sort of enmity toward him or her. Id. (quoting Light v. State, 841 So.2d 623, 626 (Fla. 2d DCA 2003)). We acknowledged that driving in the opposite direction on an interstate was certainly reckless, but we explained that the defendant did not have time to develop any enmity toward the victim. In fact, the evidence established that the drivers did not see each other until it was too late to avoid a collision. We held that, without more, “ ‘[EJxtremely reckless behavior itself is insufficient from which to infer any malice.’ ” Id. (alteration in Hicks) (quoting Light, 841 So.2d at 626).

In Michelson and Ellison, the defendants were similarly fleeing the police when they were involved in collisions that resulted in the death of the occupants. See 805 So.2d at 984; 547 So.2d at 1005. In Michelson, the defendant was transporting an escaped convict when a police officer activated his lights and siren. 805 So.2d at 984. The defendant panicked and accelerated, running two stop signs. After running the second stop sign, the defendant crashed into a vehicle that had the right of way and killed the driver. The encounter lasted no more than thirty seconds from start to finish.

In Ellison, the defendant was speeding when a police officer attempted to stop him. 547 So.2d at 1005. The car kept speeding, rammed a blocked toll booth gate, jumped the median onto a service road, and entered a major roadway. At that point, the defendant lost control of the vehicle, which crossed the center line and struck another vehicle head-on, injuring a passenger who died the next day. As in Hicks, the courts in Michelson and Ellison reversed the defendants’ second-degree murder convictions. 805 So.2d at 986; 547 So.2d at 1007. Both courts concluded that there was nothing in the record to establish that the defendant acted with malice toward the victims. 805 So.2d at 985; 547 So.2d at 1006.

In all three of these cases on which Black relies, the defendant’s motive for driving recklessly was to elude capture by the police. Here, however, there was no evidence that Black was fleeing the police. In fact, the officers did not come upon his vehicle until after the second collision. Instead, the only evidence of Black’s intent established that he was on a suicide mission that involved making big headlines and going out with a bang. His actions were fully consistent with his own stated intent. And there was no evidence that Black failed to see the victims until it was too late, as in Hicks and Michelson, or lost control over his vehicle, as in Ellison. Rather, he drove directly into one victim, backed away from the scene, and almost immediately drove across two lanes of traffic directly into the second and third victims.

We are mindful of this court’s observation in Hicks that second-degree murder generally involves a defendant who knows the victim or bears enmity towards the victim. See Hicks, 41 So.3d at 331 (quoting Light, 841 So.2d at 626). However, section 782.04(2) does not require such a relationship between the defendant and the victim. In fact, malice murder convictions have been affirmed based on similar evidence of the defendant’s use of his vehicle to kill perfect strangers. See, e.g., Anderson, 330 S.E.2d at 594-95; People v. Gomez, 65 N.Y.2d 9, 489 N.Y.S.2d 156, 478 N.E.2d 759, 760-62 (1985) (affirming second-degree murder conviction of defendant whose vehicle sped down a crowded sidewalk and struck a child then proceeded down a second sidewalk and struck another child).

Accordingly, we conclude that the State presented sufficient evidence of malice to withstand the motion for judgment of acquittal.

II. Manslaughter Jury Instruction

Black also argues that the trial court committed fundamental error by giving an erroneous jury instruction on the lesser-included offense of intentional act manslaughter. The instruction on manslaughter by act that was given at trial provided:

The lesser included crimes indicated in the definition of second degree murder with a weapon are manslaughter and vehicular homicide.
Manslaughter.
To prove the crime of manslaughter the State must prove the following two elements beyond a reasonable doubt:
One, Marie Jesus [Diego] is dead.
And two, Kevin Jerome Black intentionally caused the death of Marie Jesus Diego or the death of Marie Jesus Diego was caused by the culpable negligence of Kevin Jerome Black.
However, the defendant cannot be guilty of manslaughter if the killing was either justifiable or excusable homicide as I’ve previously explained those terms to you earlier.
In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to commit [sic] to cause death, only an intent to commit an act which caused death.

Black argues that this instruction .is equivalent to the standard instruction on manslaughter by act that the supreme court determined was erroneous in State v. Montgomery, 39 So.3d 252, 257 (Fla.2010). However, the instruction is different than that given in Montgomery and equivalent to the amended standard instruction which this court recently held was not erroneous in Daniels v. State, 72 So.3d 227 (Fla. 2d DCA 2011), review granted, 79 So.3d 744 (Fla.2012), and Pharisien v. State, 74 So.3d 156 (Fla. 2d DCA 2011). But see Riesel v. State, 48 So.3d 885, 886 (Fla. 1st DCA 2010) (holding that the instruction at issue was erroneous under the same reasoning as employed in Montgomery), review denied, 66 So.3d 304 (Fla.2011).

Even if this instruction were erroneous, it must rise to the level of fundamental error to require reversal because Black did not object to it and indeed, he requested the instruction that was given. This court has repeatedly held that an erroneous instruction on manslaughter by act does not constitute fundamental error when the jury is also instructed on the lesser-included offense of manslaughter by culpable negligence. See Haygood v. State, 54 So.3d 1035, 1037 (Fla. 2d DCA 2011), review granted, 61 So.3d 410 (Fla.2011); Barros-Dias v. State, 41 So.3d 370, 372 (Fla. 2d DCA 2010); Nieves v. State, 22 So.3d 691, 692 (Fla. 2d DCA 2009). Because the jury was also instructed on manslaughter by culpable negligence in this case, any error in the manslaughter by act instruction was not fundamental.

Affirmed.

WHATLEY, J., Concurs.

NORTHCUTT, J., Dissents with opinion.

NORTHCUTT, Judge,

dissenting.

Black’s convictions for second-degree murder and attempted second-degree murder should be reversed for insufficient evidence, and his case should be remanded for a new trial.

The crime of second-degree murder is defined as “[t]he unlawful killing of a human being, when perpetrated by an act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual.” § 782.04(2), Fla. Stat. (2007). Conduct that is

“imminently dangerous to another and evincing a depraved mind” is characterized by “an act or series of acts that: (1) a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and (2) is done from ill will, hatred, spite or an evil intent, and (3) is of such a nature that the act itself indicates an indifference to human life.”

State v. Montgomery, 39 So.3d 252, 255 (Fla.2010) (quoting Bellamy v. State, 977 So.2d 682, 683 (Fla. 2d DCA 2008)).

Black’s challenge concerns the second factor just mentioned. The words “ill will, hatred, spite, or evil intent” equate to actual malice. See Reed v. State, 837 So.2d 366, 368-69 (Fla.2002) (quoting Young v. State, 753 So.2d 725, 728-29 (Fla. 1st DCA 2000), for the proposition that in cases charging aggravated child abuse, actual malice, i.e. ill will, hatred, spite, evil intent, must be proven). The Young court contrasted actual malice, which requires proof of an evil intent or motive, with legal malice, which can be inferred from “an intentional act performed without legal justification or excuse.” 753 So.2d at 728-29. In the same vein, this court has noted that the malice required to support a conviction for second-degree murder cannot be inferred merely from extremely reckless behavior. Light v. State, 841 So.2d 623, 626 (Fla. 2d DCA 2003).

To be sure, the evidence in this ease proved that Black acted extremely recklessly and possibly intentionally. But the acts described by the witnesses did not in themselves prove the actual malice necessary to convict him of second-degree murder. See Hicks v. State, 41 So.3d 327 (Fla. 2d DCA 2010) (holding that the State failed to prove ill will, spite, or evil intent when the defendant, pursued by the police, drove on the interstate into oncoming traffic at about 76 miles per hour, hit another car head on, and killed the driver); see also Michelson v. State, 805 So.2d 983 (Fla. 4th DCA 2001) (reversing conviction for second-degree murder when police were pursuing driver and he ran a stop sign, struck an oncoming vehicle and killed the driver; no evidence Michelson acted with requisite malice against the eventual victim).

As the Light court explained, second-degree murder is normally committed by someone who knows the victim and who has the time to develop an enmity toward him or her. 841 So.2d at 626 (and cases cited therein). Grimsley testified that he did not know the driver of the car that hit him. In fact, the State produced no evidence that Black knew any of the victims or that he harbored any animosity toward them on the basis of gender, race, or some other trait. Moreover, the two collisions happened within a brief time period, about three-quarters of a mile apart. The officer investigating the crash at the labor pool radioed his partner and told him the direction in which the fleeing vehicle was traveling. His partner drove in that direction and very quickly came upon the scene of the second collision. See, e.g., Bellamy v. State, 977 So.2d 682, 684 (Fla. 2d DCA 2008) (finding no evidence of malice to support a second-degree murder conviction when the parties did not know each other and the altercation took only one or two minutes).

The majority’s effort to distinguish this state’s controlling precedents on the ground that Black apparently was attempting suicide, as opposed to fleeing from the police, widely misses the point. In both scenarios, the defendants were motivated by something other than malice toward the victims, and in both scenarios the defendants’ extreme recklessness was legally insufficient to establish the actual malice element of second-degree murder. The majority has cited a handful of out-of-state decisions that it believes are consistent with its result. But it has failed to unearth a single Florida authority that supports it, thus underscoring that Black’s convictions for second-degree murder and attempted second-degree murder are contrary to Florida law.

Because I would reverse the convictions and remand for a new trial, I would not address the manslaughter instruction.


author: PER CURIAM.

text:
    Thomas James LUDWIG, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-5982.
    District Court of Appeal of Florida, Second District.
    March 30, 2012.
    James Marion Moorman, Public Defender, and Benedict P. Kuehne, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Affirmed. See State v. Sturdivant, 94 So.3d 434 (Fla.2012).

CASANUEVA, WALLACE, and LaROSE, JJ., Concur.


text:
    Rachel PECK, Appellant, v. VIRTUOSO SOURCING GROUP, LLC, Appellee.
    No. 2D11-1545.
    District Court of Appeal of Florida, Second District.
    April 18, 2012.
    Mark T. Tischhauser of The Tischhauser Law Group, Tampa, for Appellant.
    Ernest H. Kohlmyer, III, of South Mil-hausen, P.A., Orlando, for Appellee.
   PER CURIAM.

Affirmed. See Read v. MFP, Inc., 85 So.3d 1151 (Fla. 2d DCA 2012).

NORTHCUTT, CRENSHAW, and BLACK, JJ, Concur.


author: ALTENBERND, Judge.

text:
    STATE FARM FLORIDA INSURANCE COMPANY, Appellant, v. Karen COLELLA, Appellee.
    No. 2D11-855.
    District Court of Appeal of Florida, Second District.
    April 27, 2012.
    Rehearing Denied Aug. 29, 2012.

      Lee Craig of Butler Pappas Weihmuller Katz Craig LLP, Tampa, for Appellant.
    Raymond T. Elligett, Jr., of Buell & Elligett, P.A., Tampa; and Matthew R. Danahy of Danahy & Murray, P.A., Tampa, for Appellee.
   ALTENBERND, Judge.

State Farm Florida Insurance Company appeals a partial final judgment entered pursuant to an order granting a motion for summary judgment in favor of Karen Co-lella on her claim for breach of contract. This lawsuit arises from a sinkhole claim on which State Farm has paid its policy limits with interest. We conclude that the trial court erred in determining that there was no issue of fact and that State Farm, as a matter of law, had breached its contract with Ms. Colella. Accordingly, we reverse and remand for further proceedings.

I. THE SINKHOLE CLAIM, INVESTIGATION, AND RESULTING LAWSUIT

Given that this case is an appeal from a summary judgment, it is surprisingly difficult to provide an accurate explanation of the facts and the proceedings below. The record is approximately 2000 pages in length, but it contains no depositions and little sworn testimony. The appellant’s brief, which was written by the attorney who represented State Farm in the trial court, provides a statement of the case with no citations to the record and a statement of the facts that is argumentative and more a discussion of law than fact. His frustration over the proceedings below is palpable and perhaps understandable, but that emotion has not promoted a detached analysis of the facts and the law in this case.

Ms. Colella owns a home in Pasco County. On September 14, 2006, State Farm issued a one-year homeowner’s insurance policy providing sinkhole coverage on this home. In January 2007, Ms. Colella, with the assistance of a public adjuster, filed a written claim for unspecified damage to her home that “she feels is consistent with sinkhole activity.” In accordance with section 627.707, Florida Statutes (2006), State Farm retained an engineering firm in early February to inspect the home to determine whether it had been damaged by a sinkhole. That firm inspected the home and performed various tests. In June 2007, the engineers provided a lengthy report that concluded: “It is our professional opinion, based on the information generated by this investigation, and by testing conducted in compliance with generally accepted scientific practices and with Chapter 627.7072, that evidence of sinkhole activity is not present at the site of investigation.”

On June 12, 2007, State Farm sent a copy of the report to Ms. Colella’s public adjuster along with a letter stating that, in light of the report, the policy specifically excluded the cause of loss. The letter quoted the relevant language from the insurance policy. It contained a disclosure of the insured’s right to participate in the neutral evaluation program under section 627.7074 and invited the public adjuster to contact either the claims representative or the Florida Department of Financial Services (“the Department”) to learn more about that program. The letter also told the public adjuster to “feel free” to contact the claims representative at a specific telephone number if the adjuster had any questions regarding the claim or the content of the letter. A copy of the letter was provided to Ms. Colella and her State Farm insurance agent.

Apparently, neither the public adjuster nor Ms. Colella responded to this letter. About seventeen months later, on November 5, 2008, an attorney representing Ms. Colella filed a civil remedy notice with the Department and served a copy on State Farm. The notice contained many allegations, but little factual detail. For example, it charged that the engineering firm retained by State Farm “failed to comply with standard geotechnical engineering practices and procedures,” but did not explain or describe any practice or procedure that was not followed in preparation of the lengthy report that appears to be supported by significant testing and inspection.

The civil remedy notice alleged that another engineering firm had prepared a conflicting report on October 16, 2008, for Ms. Colella. That report apparently was not provided to State Farm until it received it as an attachment to the service copy of the complaint filed in this lawsuit.

Ms. Colella filed this lawsuit on November 10, 2008. The complaint alleges breach of contract, claiming “on information and belief’ that State Farm’s engineering firm failed to comply with standard geotechnical engineering practices and that State Farm knew or should have known that Ms. Colella had a claim payable under the policy.

State Farm responded to the lawsuit with a motion to stay pending neutral evaluation. It relied on section 627.7074, which provides that such evaluation is “nonbinding, but mandatory if requested by either party.” See § 627.7074(4). Ms. Colella filed an objection to neutral evaluation and a supplemental objection, claiming that the statute was unconstitutional and otherwise improper.

A request for neutral evaluation is actually made to the Florida Department of Financial Services. See § 627.7074(4). When State Farm filed its request, Ms. Colella’s attorney filed an objection with the Department. It notified the attorney that the evaluation would continue forward and appointed an engineer as a neutral evaluator. Apparently because of the pending objection in the trial court, Ms. Colella’s attorney does not appear to have provided full cooperation to the neutral evaluator in his efforts to examine the property.

The neutral evaluator visited the home on February 5, 2009. His report is in our record, but it is not entirely clear to this court whether we are to treat this document and the other reports in the record as matters in evidence. The report reflects the evaluator’s difficulty in establishing a meeting time and the failure of Ms. Colella and her attorney to be at the residence at the time of the inspection. It appears to this court that the neutral engineer was unable to gain access to the inside of the home and that he prepared his report from the examination of the exterior and from a review of the two competing engineering reports. Although he concluded that “the pattern of damage is not focused as would be expected for sinkhole activity” and that “the cracking appears to be cosmetic in nature and would be within accepted tolerances for the age of the home,” he was concerned by the “very large discrepancies between the borings performed by [the first engineer] and the [second engineer].” Accordingly, he recommended that “a neutral third party firm be retained to perform additional borings to resolve the discrepancies.” His report is dated March 4, 2009.

When State Farm received this report, it made a unilateral decision to simply pay policy limits on this claim. Its reasons for doing so are not established in the record, but given the amount in controversy, it is likely that it simply decided to forego the time and expense of further testing and litigation. Accordingly, on March 20, 2009, State Farm sent Ms. Colella’s attorney a cover letter with a check for $91,876 payable to Ms. Colella and her mortgage company, representing the full amount of applicable coverage for the loss. It also sent a check for $17,915.48 to the same payees to cover prejudgment interest on the claim. Finally, the letter concludes: “State Farm concedes your entitlement to a reasonable amount of fees and costs. This should resolve all pending issues with the exception of the amount of fees and costs owed.”

Shortly after State Farm sent the letter and checks, Ms. Colella moved for “partial summary judgment,” claiming that the letter and checks were the functional equivalent of “a confession of judgment.” From the record, it does not appear that the trial court ruled on this motion.

In June 2009, Ms. Colella filed a motion to amend her complaint. Count I of the amended complaint appears to be identical to the original complaint. It does not reflect the payments made in March and continues to allege that State Farm has refused to pay the claim.

Count II attempts to allege a claim under Florida’s Unfair Insurance Trade Practices Act, section 626.9541(1), Florida Statutes (2006), and for “bad faith” under section 624.11, Florida Statutes (2006). This count describes the delivery of the checks in March. It alleges that the checks were “unusable” because the mortgage company did not have an interest in all of the proceeds. It further alleges that at Ms. Colella’s request, State Farm reissued checks limiting the mortgage company’s payment to the amount it was owed. Apparently, these checks were negotiated in April 2009.

Count II contains many allegations that are legal conclusions with little factual detail to explain what State Farm did that was improper in the handling of this claim. If Ms. Colella believes that State Farm conspired in some inappropriate fashion with the first engineer to convince that engineer to certify a false report, she does not specifically allege that theory. The most specific allegation is a claim that State Farm improperly sought neutral evaluation when such evaluation was “le-gaily inappropriate and contrary to the best interests of Ms. Colella.”

After the trial court allowed Ms. Colella to file her amended complaint, she again moved for summary judgment as to count one. The trial court granted her motion for summary judgment as to count one. It concluded that:

1. The original denial of the Plaintiffs claim by State Farm was a breach of the contract notwithstanding the statutory presumption of correctness.
2. State Farm’s compliance with the sinkhole statute did not prevent State Farm from being in breach of contract for failure to pay the Plaintiffs claim.
3. State Farm’s later payment of the claim was, in effect, a “confession of judgment.”

State Farm challenges this order.

II.THE RECORD DOES NOT ESTABLISH AN UNDISPUTED BREACH OF CONTRACT

The trial court’s order does not explain how or in what respect State Farm breached its contract of insurance. From the record before this court, it received a sinkhole claim and processed that claim as it was required to do under section 627.707. It obtained the sinkhole report described in section 627.7073. It relied on that report to inform Ms. Colella that the conditions at the house were not damage caused by a sinkhole. Without regard to the nature of any evidentiary presumption that may be given to that report in a trial, for the purposes of processing this claim, the legislature has established that a report prepared in accordance with the statute is “presumed correct.” See § 627.7073(l)(c); see also Warfel, 82 So.3d 47.

During the neutral evaluation authorized by the Department and in light of the inconclusive report of the neutral evaluator, whom the insured had not permitted into her home, State Farm paid an amount that apparently is the full amount owed under the contract and it even agreed to pay attorneys’ fees.

The trial court is probably correct that the statutory presumption of correctness does not insulate State Farm from all claims for breach of contract, but we are at a loss to determine from this record what act the trial court believes constituted a breach of contract under the undisputed facts in this case. Likewise, we are inclined to believe that “compliance with the sinkhole statute” goes a long way toward fulfilling State Farm’s obligations under its contract. The simple fact that State Farm initially sent a letter to its insured declining coverage based on the statutory report and later decided unilaterally to pay the full policy limits during the neutral evaluation does not prove a breach of contract in this context. It is helpful to remember that, from this record, there is nothing to suggest that the report of the first engineer was not entirely accurate. The fact that Ms. Colella’s attorney hired another engineer who reached a conflicting opinion does not mean that the second engineer reached a correct conclusion.

III.THE PAYMENT OF POLICY LIMITS IN THIS CONTEXT DOES NOT CONSTITUTE A CONFESSION OF JUDGMENT

It is not entirely obvious to this court why both parties have decided to fight this issue. They apparently believe that this summary judgment will have an impact on the civil remedies claim in count II that would be detrimental to State Farm. Before the amended complaint was filed, State Farm paid not only the full policy limits with interest, but also it volunteered to pay Ms. Colella’s attorneys’ fees and costs. Thus, the allegation in the amended complaint that State Farm has failed or refused to pay her damages would appear to have been false when that amended complaint was filed. From the record, we do not know what, if any, damages Ms. Colella could recover for this breach of contract that she has not already received from State Farm.

In Clifton v. United Casualty Insurance Co. of America, 31 So.3d 826, 829 (Fla. 2d DCA 2010), review denied, 49 So.3d 746 (Fla.2010), we discussed the confession of judgment rule and explained that it is “not absolute.” We emphasized that the rule is intended to penalize insurance companies for “wrongfully” causing an insured to resort to litigation. Clifton, 31 So.3d at 829. From this record, it is not apparent that Ms. Colella ever was required to “resort” to litigation. She appears to have opted to pursue litigation without ever attempting to discuss the disagreement with the insurance company. Certainly, as an issue for summary judgment, this record does not establish an undisputed factual basis to conclude that State Farm confessed judgment to the initial complaint when it decided to pay this claim in full.

Reversed and remanded.

KELLY and CRENSHAW, JJ., Concur.

      . The statutes regulating sinkhole claims were significantly amended in both 2005 and 2006. See Chs. 2005-111, 2006-12, Laws of Fla. In this case, Ms. Colella’s policy was issued in September 2006, a few days before the effective date of the statutes creating neutral evaluation, i.e., October 1, 2006. She made her claim after the effective date. In Warfel v. Universal Insurance Co. of North America, 36 So.3d 136 (Fla. 2d DCA 2010), approved, 82 So.3d 47 (Fla.2012), some aspects of the 2005 law were treated as procedural and applied in a similar situation where the policy was issued before the statutory amendment but the procedures became effective before the claim. In this case, we do not need to decide whether the Department was correct to enforce neutral evaluation as to this claim. We note, however, that Ms. Colella's objections and supplemental objections did not raise the issue of retroactive application of the statutes requiring neutral evaluation.

      . A few days before the report issued, State Farm filed a notice withdrawing its motion to stay pending neutral arbitration. From the record, it is unclear why this motion precedes the date of the report and the delivery of the checks.

      . Both parties agree that this partial final judgment is appealable. See Fla. R.App. P. 9.110(k). We conclude that the issues related to breach of contract are sufficiently unrelated to the claims for statutory violations to permit us to review this order. See Costin v. Malone, 402 So.2d 1257, 1258 n. 1 (Fla. 1st DCA 1981).

      . If the amount paid was less than the amount due under the contract, we cannot ascertain that from this record.


text:
    Anthony RUISE, Petitioner, v. Michelle Y. ETHERIDGE, Florida Dept. of Revenue, Child Support Enforcement, Respondents.
    No. 1D12-1215.
    District Court of Appeal of Florida, First District.
    June 1, 2012.
    Anthony Ruise, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

The petition for writ of mandamus is granted. Within a reasonable time, not to exceed 20 days from issuance of mandate in this cause, the circuit court shall comply with the dictates of Section 78.065, Florida Statutes, by either directing the clerk to issue a writ of replevin pursuant to Section 78.065(1), or by issuing an order to show cause complying with the requirements of Section 78.065(2). Because we are confident that the circuit court will comply, we withhold issuance of the formal writ.

BENTON, C.J., THOMAS and SWANSON, JJ., concur.


author: LAWSON, J.

text:
    NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Appellant, v. Mark W. DARRAGH, Appellee.
    No. 5D10-3188.
    District Court of Appeal of Florida, Fifth District.
    June 8, 2012.
    Rehearing Denied July 10, 2012.

      Richard A. Sherman, Sr., of Richard A. Sherman, P.A., Fort Lauderdale and Sonya S. Wesner, of the Law Office of Patricia E. Garagozlo, Orlando, for Appellant.
    Jeffrey M. Byrd, of Jeffrey M. Byrd, P.A., Orlando, for Appellee.
   LAWSON, J.

Nationwide Mutual Fire Insurance Company appeals from a final judgment entered following a $3.99 million jury verdict entered in favor of Nationwide’s insured, Mark W. Darragh. Nationwide provided uninsured motorist coverage in the amount of $200,000 to Darragh. We agree with Nationwide that the trial court erred in refusing to instruct the jury to reduce future economic damages to present value in rendering its verdict. See Dupuis v. Heider, 113 Fla. 679, 152 So. 659, 662 (1934); Florida East Coast Ry. Co. v. Young, 104 Fla. 541, 140 So. 467 (1932); Florida East Coast Ry. Co. v. Lassiter, 58 Fla. 234, 50 So. 428 (1909). Milton v. Reyes, 22 So.3d 624, 624-25 (Fla. 3d DCA 2009); Howell v. Woods, 489 So.2d 154, 155 (Fla. 4th DCA 1986); Seaboard Coast Line R.R. Co. v. Burdi, 427 So.2d 1048, 1050 (Fla. 3d DCA 1983); Seaboard Coast Line R.R. Co. v. Garrison, 336 So.2d 423, 425 (Fla. 2d DCA 1976); Norman v. Mullin, 249 So.2d 733, 734 (Fla. 2d DCA 1971). Accordingly, we reverse the portion of the verdict awarding future economic damages, and remand for a new trial as to future economic damages only. See, e.g., Milton, 22 So.3d at 625. We find no error in the trial court’s decision to allow testimony of the full amount of Dar-ragh’s past medical bills pursuant to section 768.76, Florida Statutes (2009) and Goble v. Frohman, 901 So.2d 830 (Fla.2005). The trial court properly treated the lesser amount negotiated for payment by Darragh’s private health insurer as a collateral source set-off to be made by the judge after trial. See Nationwide Mut. Fire Ins. Co. v. Harrell, 53 So.3d 1084 (Fla. 1st DCA 2010).

For the benefit of the parties and the trial court on retrial, we address one other evidentiary issue relating to Dar-ragh’s future economic damages claim. Over Nationwide’s many and various objections, Darragh was allowed to personally testify as to the value of future pension benefits that he claims to have lost from the United States military as a result of injuries sustained in the underlying automobile accident. It appears that Darragh based this testimony exclusively on information he gleaned from websites maintained by the United States government. Copies of pages from these websites were also introduced into evidence over Nationwide’s objections. We agree with Nationwide that the trial court erred in permitting this testimony and admitting printed copies of the website pages into evidence, on this record.

The website materials attempt to simplify and explain in lay terms how one can estimate the amount of future potential military retirement benefits, with the following cautions:

These results are based on your assumptions. The future will differ from these assumptions and actual results will differ correspondingly. Remember these results are not guaranteed; they are merely estimates. This point cannot be emphasized too heavily — there is no guarantee that the assumptions will all prove correct. This is why you should “play” with the assumptions.
The intent of this analysis is to help you to make a fairly simple and direct estimate of the financial flow resulting from your retirement and be able to investigate some of the factors that influence the result.

Nationwide’s objections to the admission of these documents at trial included a hearsay objection and an objection that the documents had not been properly authenticated. Darragh countered the hearsay objection by arguing that the website pages fell within the hearsay exception for public records and reports in section 90.803(8), Florida Statutes, but made no attempt to authenticate them as such. See, e.g., Jacksonville Elec. Auth. v. Dep’t of Rev., 486 So.2d 1350, 1354 (Fla. 1st DCA 1986) (“Public records and reports are admissible as an exception to the hearsay rule, section 90.803(8), provided they are authenticated, section 90.901, by a custodian, sections 90.902(4) and 90.955.”); see also St. Luke’s Cataract and Laser Inst., P.A. v. Sanderson, 2006 WL 1320242 (M.D.Fla. May 12, 2006) (“Web-sites are not self-authenticating. To authenticate printouts from a website, the party proffering the evidence must produce ‘some statement or affidavit from someone with knowledge [of the website] ... for example [a] web master or someone else with personal knowledge would be sufficient.’ ”) (citations omitted). Darragh’s argument below and on appeal also fails to recognize that section 90.803(8) limits admissibility of public records to those “setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law as to matters which there was a duty to report. ...” The government website printouts admitted below do not simply set forth the activities of a government agency or matters observed pursuant to a duty to report. Cf. Sikes v. Seaboard Coast Line R.R. Co., 429 So.2d 1216 (Fla. 1st DCA 1983) (finding Florida Driver’s Handbook did not fall under either category of public record admissible under section 90.803(8)). Accordingly, the trial court erred in admitting these website printouts under the public records exception.

Darragh alternatively argues that the government website information was admissible under section 90.202(12), which allows a court to take judicial notice of facts “that are not subject to dispute because they are capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned[.]” We agree that some of the factual tables copied from the website would qualify for judicial notice under section 90.202(12). However, to rule the basic attempt to explain and simplify into lay terms the assumptions and calculations necessary to estimate future potential retirement benefits admissible pursuant to section 90.202(12) would be inconsistent with the principles underlying our jury system. As explained in Maradie v. Maradie, 680 So.2d 538 (Fla. 1st DCA 1996).

In our justice system, the practice of taking judicial notice of adjudicative facts should be exercised with great caution. This caution arises from our belief that the taking of evidence, subject to established safeguards, is the best way to resolve disputes concerning adjudicative facts. When a matter is judicially noticed “it is taken as true without the necessity of offering evidence by the party who should ordinarily have done so.” Thus, historically, “judicial notice applies to self-evident truths that no reasonable person could question, truisms that approach platitudes or banalities.”

Id. at 541 (internal citations omitted) (quoting Makos v. Prince, 64 So.2d 670, 673 (Fla.1953) and Hardy v. Johns-Manville Sales Corp., 681 F.2d 334, 347-48 (5th Cir.1982)). In short, if this authoritative source can be admitted into evidence simply because the trial court can readily verify that it is an authoritative source, the same rule should apply to other authoritative sources. It does not. Rather, under our evidence code “[statements of facts or opinions on a subject of ... specialized knowledge contained in a published treatise ... or other [authoritative] writing may [only] be used in cross-examination of an expert witness ....”§ 90.706, Fla. Stat. (2010). “Section 90.706 does not permit statements in a learned treatise to be used as substantive evidence since the treatise would be hearsay if offered as substantive evidence.” Donshik v. Sherman, 861 So.2d 53, 56 (Fla. 3d DCA 2003). “This is so because ‘the opposing party cannot cross-examine and impeach the source of the hearsay.’ ” Duss v. Garcia, 80 So.3d 358, 364 (Fla. 1st DCA 2012) (quoting In re S.E., 946 So.2d 620, 622 (Fla. 2d DCA 2007)). This was one of the primary arguments that Nationwide made to the trial court, and repeated on appeal — that by admitting the website information into evidence and allowing Darragh to testify from it, Nationwide had no way to test the methods, assumptions and underlying explanations for Darragh’s ultimate conclusions. On this record, we agree.

Finally, Darragh alternatively argues that his testimony on this issue was based upon formulas easily gleaned from federal statutes, and that the trial court properly took judicial notice of these statutes. Clearly, a trial court is authorized to take judicial notice of a federal statute. See § 90.201(1), Fla. Stat. (2009). The problem here is that we cannot find the information forming the basis of Darragh’s testimony in any of the statutes Darragh cites. Although Darragh’s counsel argued that the website information mirrored federal law, he did not provide copies of the statutes themselves — only citations. And, the information is simply not readily apparent from the cited statutes. If, on remand, Darragh can locate a statute that plainly lays out a mathematical formula for calculation of his claimed retirement benefit, we would agree that Darragh could “plug the numbers” into that formula without the aid of an expert witness — thus providing a basis for the jury’s consideration of this element of future economic damages. But, on this record, we agree with Nationwide that simply admitting the website pages, and allowing Darragh to testify from them, was improper.

As to all other issues, we affirm the jury’s verdict and the trial court’s final judgment.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

COHEN and JACOBUS, JJ., concur.

      . At trial, Nationwide requested that the jury be instructed as to this issue using Standard Jury Instruction 6.10. The trial court declined to give the instruction after hearing argument from Darragh’s counsel, who believed that the case law requiring a trial court to instruct the jury to reduce future economic damages to present value had been superced-ed by an amendment to section 768.77, Florida Statutes, in 1999. See Ch. 99-225, § 7, Laws of Fla. Contrary to Darragh’s argument, the requirement that a jury be instructed, upon request, to reduce future economic damages to their present value was a common law requirement that pre-dated the enactment of section 768.77, Florida Statutes, by many decades — as can be seen from the cases cited above dating back to 1909. Section 768.77(1) was originally enacted as part of the Tort Reform Act of 1986, see Ch. 86-160, § 56, Laws of Fla., and required the trier of fact in negligence actions to itemize its verdict into economic losses, noneconomic losses and punitive damages. Subsection two required further itemization between past and future losses, and required future economic losses to be "computed [on the verdict form itself] before and after reduction to present value.” Id. The 1999 amendment simply removed the requirement for an itemized verdict form reflecting the present value calculation. Ch. 99-225, § 7, Laws of Fla. Contrary to Darragh’s argument, the legislature's decision to remove the requirement that a jury detail its present value calculation on an itemized verdict form cannot be read as abrogating the longstanding common law requirement that a jury be instructed to reduce future economic damages to present value. See, e.g., Essex Ins. Co. v. Zota, 985 So.2d 1036, 1048 (Fla.2008) ("A statute ... designed to change the common law rule must speak in clear, unequivocal terms, for the presumption is that no change in the common law is intended unless the statute is explicit in this regard.”) (quoting Carlile v. Game & Fresh Water Fish Comm'n, 354 So.2d 362, 364 (Fla. 1977)).


author: VAN NORTWICK, J.

text:
    DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. William CARILLON, Respondent.
    No. 1D11-6241.
    District Court of Appeal of Florida, First District.
    June 27, 2012.

      Stephen D. Hurm, General Counsel, and Richard L. Brown, Assistant General, Counsel, Department of Highway Safety and Motor Vehicles, Tallahassee, for Petitioner.
    David M. Robbins and Susan Z. Cohen of Epstein & Robbins, Jacksonville, for Respondent.
   VAN NORTWICK, J.

The Department of Highway Safety and Motor Vehicles files a petition for writ of certiorari seeking review of an order of the circuit court sitting in its appellate capacity. In the order, the circuit court granted certiorari review and quashed the order of a hearing officer that had upheld the suspension of the driving privilege of William Carillon, respondent. Based upon the standard that a district court must follow in determining whether to grant certiorari review of a circuit court’s appellate decision, we cannot conclude that the circuit court applied the incorrect law. Accordingly, we deny the petition.

On April 11, 2010, Officer D.C. Wool-dridge responded to assist Officer R. Les-trange with a traffic crash involving a possible impaired driver. Officer Lestrange found respondent sitting in the driver’s seat of the vehicle. Later when Officer Wooldridge arrived, they observed that Carillon’s eyes were glassy, he had slurred speech, and he appeared disoriented. When Officer Wooldridge informed respondent that he was performing a DUI investigation, respondent stated that he did not hit his head, did not have any medical problems, was not a diabetic, and was not taking any medications or illegal drugs. Despite the repeated requests, respondent refused to participate in field sobriety exercises, and he was subsequently arrested for the offense of driving under the influence of alcohol. About half an hour later, Officer E. dayman read the Implied Consent Warnings and requested that respondent submit to a breath and urine test, but respondent refused again. His driver’s license was thereafter suspended for failure to submit to a breath test. Pursuant to Chapter 15A-6, Florida Administrative Code, and section 322.2615, Florida Statutes (2010), respondent timely requested an administrative hearing. The hearing officer conducted the administrative hearing and concluded that the law enforcement officer had probable cause to believe that respondent was driving or in actual physical control of motor vehicle while under the influence of alcoholic beverages, and upheld the suspension of respondent’s driving privilege.

Before the circuit court, respondent argued that his driver’s license could not be lawfully suspended for refusal to submit to breath test because the police officer did not have reasonable cause to believe he had been under the influence of alcohol. In its decision granting respondent’s petition, the circuit court found that the record was devoid of any evidence that the impairment was due to consumption of alcohol and that, therefore, no law enforcement officer was authorized to request that respondent submit to a breath test under section 316.1932(l)(a).

Even if we were to agree with the Department that the circuit court erred in its ruling, under our constrained standard of review on second-tier certiora-ri, such error would not violate a clearly established principle of law resulting in a miscarriage of justice. Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 525 (Fla. 1995); Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003). The circuit court here applied the correct law, section 316.1932(l)(a), and where the circuit court has applied the correct law, “[e]ven if we disagreed with the circuit court’s application of the law to the facts, we would have no basis to intervene and grant certiorari relief.” DHSMV v. Pitts, 815 So.2d 738, 744 (Fla. 1st DCA 2002); see DHSMV v. Edenfield, 58 So.3d 904, 907 (Fla. 1st DCA 2011). .

The Department of Highway Safety and Motor Vehicles argues in its petition that the circuit court also erred in not recognizing that competent, substantial evidence supported the suspension based upon respondent’s refusal of a urine test. Because the urine test issue was not before the circuit court, and thus not addressed by it, we do not reach the question. See Sun Ray Homes, Inc. v. County of Dade, 166 So.2d 827, 829 (Fla. 3d DCA 1964).

The petition for a writ of certiorari is DENIED.

ROBERTS, J. and DEMPSEY, ANGELA C., Associate Judge, concur.