author: PER CURIAM.

text:
    In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT NO. 2013-02.
    No. SC13-456.
    Supreme Court of Florida.
    April 24, 2014.
    Honorable Joseph Anthony Bulone, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Clearwater, FL, and Bart Schneider, Senior Attorney, Office of State Court Administrator, Tallahassee, FL, for Petitioner.
    Norman Adam Tebrugge of Tebrugge Legal, Bradenton, FL; Karen Marcia Gottliebb, Coconut Grove, FL; and Sonya Rudenstine, Gainesville, FL, Responding with Comments on behalf of The Florida Association of Criminal Defense Lawyers.
   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 authorize the amended standard instructions for publication and use. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee’s proposed changes affect the following criminal jury instructions: 6.2, Attempted First-Degree Murder; 6.3, Attempted Felony Murder; 6.3(a), Attempted Felony Murder — Injury Caused by Another; 6.4, Attempted Second-Degree Murder; 7.2, First-Degree Murder; and 7.4, Second-Degree Murder.

Following publication of its proposals in the Florida Bar News, the Committee received comments, revised some of the proposals, and filed its report with this Court. The Court published the Committee’s revised proposals in the Florida Bar News and received comments. Having considered the Committee’s report and the comments filed, we authorize the amended standard jury instructions for publication and use as proposed.

In all six instructions, language is added for determining whether the homicide .or attempted homicide victim was a law enforcement officer, correctional officer, or correctional probation officer engaged in the lawful performance of a legal duty as provided by section 782.065, Florida Statutes (2013). The statute provides for mandatory sentences of life imprisonment in such cases. The new language sets forth definitions and criteria for the jury to consider in deciding whether the State has proven the required sentencing factors beyond a reasonable doubt. The amendments to these instructions also include a comment in which the Committee discusses the issue of what knowledge is required on the part of the defendant to apply the mandatory sentencing provision.

In the instructions on first- and second-degree murder (instructions 7.2 and 7.4) and attempted first- and second-degree murder (instructions 6.2 and 6.4), language is added to instruct the jury on the common law defense of “heat of passion upon a sudden provocation” when it is applicable. Under Florida law, this defense can be asserted in certain circumstances, but presently there are no standard instructions addressing it. The instructions provide that if the jury finds the defense of “heat of passion upon sudden provocation” proven, it should acquit the defendant of the crime charged. Also, since the “heat of passion” defense, if proven, negates the element of premeditation in the case of first-degree murder and negates the element of depraved mind in the case of second-degree murder, when the court finds there is evidence to support the defense, the jury is instructed that the State has the burden of disproving the “heat of passion” defense beyond a reasonable doubt.

In instructions 6.2, 6.4, 7.2, and 7.4, the tables of lesser-included offenses are amended to correct the terminology, add relevant information, and rearrange the information consistent with current Committee practices.

In instruction 6.8, Attempted Felony Murder, and instruction 6.8(a), Attempted Felony Murder — Injury Caused by Another, a note is added advising the judge to read instruction 3.12(d), Legally Interlocking Counts, when a defendant is charged with both attempted felony murder and the underlying felony or attempted felony in a separate count. New tables of lesser-included offenses are added for these instructions.

We authorize the amended instructions, as set forth in the appendix to this opinion, 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, wé express no opinion on their correctness and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. We further caution all interested parties that any 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 as set forth in the appendix shall be effective when this opinion becomes final.

It is so ordered.

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

APPENDIX

6.2 ATTEMPTED MURDER-FIRST DEGREE

(PREMEDITATED)

§§ 782.04(l)(a) and 777.04, Fla. Stat.

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

1. (Defendant) did some act intended to cause the death of (victim) that went beyond just thinking or talking about it.
2. (Defendant) acted with a premeditated design to kill (victim).
3. The act would have resulted in the death of (victim) except that someone prevented (defendant) from killing (victim) or [he][she] failed to do so.

Definition.

A premeditated design to kill means that there was a conscious decision to kill. The decision must be present in the mind at the time the act was committed. The law does not fix the exact period of time that must pass between the formation of the premeditated intent to kill and the act. The period of time must be long enough to allow reflection by the defendant. The premeditated intent to kill must be formed before the act was committed.

The question of premeditation is a question of fact to be determined by you from the evidence. It will be sufficient proof of premeditation if the circumstances of the attempted killing and the conduct of the accused convince you beyond a reasonable doubt of the existence of premeditation at the time of the attempted killing.

It is not an attempt to commit first degree premeditated murder if the defendant abandoned the attempt to commit the offense or otherwise prevented its commission under circumstances indicating a complete and voluntary renunciation of [his][her] criminal purpose.

Give only if there is evidence that the defendant acted in the heat of passion on legally adequate provocation.

An issue in this case is whether (defendant) did not act with a premeditated design to kill because [he][she] acted in the heat of passion based on adequate provocation. In order to find that the defendant did not act with a premeditated design to kill because [he][she] acted in the heat of passion based on adequate provocation:

a. there must have been a sudden event that would have suspended the exercise of judgment in an ordinary reasonable person; and
b. a reasonable person would have lost normal self-control and would have been driven by a blind and unreasoning fury; and
c. there was not a reasonable amount of time for a reasonable person to cool off; and
d. a reasonable person would not have cooled off before committing the act that constituted the attempt to cause death; and
e. the (defendant) was, in fact, so provoked and did not cool off before [he][she] committed the act that constituted the attempt to cause the death of (victim).

If you have a reasonable doubt about whether the defendant acted with a premeditated design to kill because [he][she] acted in the heat of passion based on adequate provocation, you should not find [him][her] guilty of Attempted First Degree Murder.

§ 782.065(2), Fla. Stat. Enhanced penalty. Give if applicable.

If you find the defendant guilty of Attempted First Degree Murder, you must then determine whether the State has further proven beyond a reasonable doubt that (victim) was a [law enforcement officer] [part-time law enforcement officer] [auxiliary law enforcement officer] [correctional officer] [part-time correctional officer] [auxiliary correctional officer] [correctional probation officer] [part-time correctional probation officer] [auxiliary correctional probation officer] engaged in the lawful performance of a legal duty.

Definitions. § 9U3.10, Fla. Stat.

“Law enforcement officer” means any person who is elected, appointed, or employed full time by any municipality or the state or any political subdivision thereof; who is vested with authority to bear arms and make arrests; and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state. This definition includes all certified supervisory and command personnel whose duties include, in whole or in part, the supervision, training, guidance, and management responsibilities of full-time law enforcement officers, part-time law enforcement officers, or auxiliary law enforcement officers but does not include support personnel employed by the employing agency.

“Employing agency” means any agency or unit of government or any municipality or the state or any political subdivision thereof, or any agent thereof, which has constitutional or statutory authority to employ or appoint persons as officers. The term also includes any private entity which has contracted with the state or county for the operation and maintenance of a nonjuvenile detention facility.

“Correctional officer” means any person who is appointed or employed full time by the state or any political subdivision thereof, or by any private entity which has contracted with the state or county, and whose primary responsibility is the supervision, protection, care, custody, and control, or investigation, of inmates within a correctional institution; however, the term “correctional officer” does not include any secretarial, clerical, or professionally trained personnel.

“Correctional probation officer” means a person who is employed full time by the state whose primary responsibility is the supervised custody, surveillance, and control of assigned inmates, probationers, parolees, or community controllees within institutions of the Department of Corrections or within the community. The term includes supervisory personnel whose duties include, in whole or in part, the supervision, training, and guidance of correctional probation officers, but excludes management and administrative personnel above, but not including, the probation and parole regional administrator level.

“Part-time law enforcement officer” means any person employed or appointed less than full time, as defined by an employing agency, with or without compensation, who is vested with authority to bear arms and make arrests and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state.

“Part-time correctional officer” means any person who is employed or appointed less than full time, as defined by the employing or appointing agency, with or without compensation, whose responsibilities include the supervision, protection, care, custody, and control of inmates within a correctional institution.

“Auxiliary law enforcement officer” means any person employed or appointed, with or without compensation, who aids or assists a full-time or part-time law enforcement officer and who, while under the direct supervision of a full-time or part-time law enforcement officer, has the authority to arrest and perform law enforcement functions.

“Auxiliary correctional officer” means any person employed or appointed, with or without compensation, who aids or assists a full-time or part-time correctional officer and who, while under the supervision of a full-time or part-time correctional officer, has the same authority as a full-time or part-time correctional officer for the purpose of providing supervision, protection, care, custody, and control of inmates within a correctional institution or a county or municipal detention facility.

Lesser Included Offenses

Comment

Regarding the enhanced penalty under Fla. Stat. § 782.065, the statute does not specify that it is an element of the offense that the defendant knew or had reason to know that the victim was a law enforcement officer, etc. In Thompson v. State, 695 So.2d 691 (Fla.1997), the Supreme Court held that knowledge of the victim’s status is a necessary element of attempted murder of a law enforcement officer, but that was prior to the enactment of Fla. Stat. § 782.065 and was based on a construction of Fla. Stat. § 784.07, which explicitly contains a knowledge requirement. As of February 2013, no case has decided whether knowledge of the victim’s status is an element under Fla. Stat. § 782.065.'

This instruction was adopted in 1994 [636 So.2d 502] and amended in 2014.

6.3 ATTEMPTED FELONY MURDER

[ENUMERATED FELONY] [NON-ENUMERATED FELONY]

§ 782.051(1) and (2), Fla. Stat.

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

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

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

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

If the underlying felony or attempted felony is charged, as a separate count, read instruction 3.12(d) (Legally Interlocking Counts). Failure to do so may result in an impermissible inconsistent verdict. See, e.Q., Brown v. State, 959 So.2d 218 (Fla.2007).

§ 782.065(2), Fla. Stat. Enhanced, penalty. Give as applicable.

If you find the defendant guilty of Attempted Felony Murder, you must then determine whether the State has further proven beyond a reasonable doubt that (victim) was a [law enforcement officer] [part-time law enforcement officer] [auxiliary law enforcement officer] [correctional officer] [part-time correctional officer] [auxiliary correctional officer] [correctional probation officer] [part-time correctional probation officer] [auxiliary correctional probation officer] engaged in the lawful performance of a legal duty.

Definitions for enhanced penalty. § 94.3.10, Fla. Stat.

“Law enforcement officer” means any person who is elected, appointed, or employed full time by any municipality or the state or any political subdivision thereof; who is vested with authority to bear arms and make arrests; and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state. This definition includes all certified supervisory and command personnel whose duties include, in whole or in part, the supervision, training, guidance, and management responsibilities of full-time law enforcement officers, part-time law enforcement officers, or auxiliary law enforcement officers but does not include support personnel employed by the employing agency.

“Employing agency” means any agency or unit of government or any municipality or the state or any political subdivision thereof, or any agent thereof, which has constitutional or statutory authority to employ or appoint persons as officers. The term also includes any private entity which has contracted with the state or county for the operation and maintenance of a nonjuvenile detention facility.

“Correctional officer” means any person who is appointed or employed full time by the state or any political subdivision thereof, or by any private entity which has contracted with the state or county, and whose primary responsibility is the supervision, protection, care, custody, and control, or investigation, of inmates within a correctional institution; however, the term “correctional officer” does not include any secretarial, clerical, or professionally trained personnel.

“Correctional probation officer” means a person who is employed full time by the state whose primary responsibility is the supervised custody, surveillance, and control of assigned inmates, probationers, parolees, or community controllees within institutions of the Department of Corrections or within the community. The term includes supervisory personnel whose duties include, in whole or in part, the supervision, training, and guidance of correctional probation officers, but excludes management and administrative personnel above, but not including, the probation and parole regional administrator level.

“Part-time law enforcement officer” means any person employed or appointed less than full time, as defined by an employing agency, with or without compensation, who is vested with authority to bear arms and make arrests and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state.

“Part-time correctional officer” means any person who is employed or appointed less than full time, as defined by the employing or appointing agency, with or without compensation, whose responsibilities include the supervision, protection, care, custody, and control of inmates within a correctional institution.

“Auxiliary law enforcement officer” means any person employed or appointed, with or without compensation, who aids or assists a full-time or part-time law enforcement officer and who, while under the direct supervision of a full-time or part-time law enforcement officer, has the authority to arrest and perform law enforcement functions.

“Auxiliary correctional officer” means any person employed or appointed, with or without compensation, who aids or assists a full-time or part-time correctional officer and who, while under the supervision of a full-time or part-time correctional officer, has the same authority as a full-time or part-time correctional officer for the purpose of providing supervision, protection, care, custody, and control of inmates within a correctional institution or a county or municipal detention facility.

Lesser Included Offenses

No losser included--offenses have-been identified for this offense.

Comment

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

Fla. Stat. specify that it is an element of the offense that the defendant knew or had reason to know that the victim was a law enforcement officer, etc. In Thompson v. State, 695 So.2d 691 (Fla.1997), the Supreme Court held that knowledge of the victim’s status is a necessary element of attempted murder of a law enforcement officer, but that was prior to the enactment of Fla. Stat. § 782.065 and was based on a construction of Fla. Stat. § 784.07, which explicitly contains a knowledge requirement. As of February 2013, no case has decided whether knowledge of the victim’s status is an element under Fla. Stat. § 782.065. Regarding the enhanced penalty under o CD CO 2 O I to o 05 03 E? CD

This instruction was adopted in 2007 [962 So.2d 310] and amended in 2014. See Battle v. State, 911 So.2d 85 (Fla.2005).

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

§ 782.051(3) Fla. Stat.

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

1. (Defendant) [committed] [attempted to commit] a (crime alleged).
2. (Victim) was injured during the [commission] [attempted commission] of an escape from the immediate scene of the (crime alleged) by an individual other than the person(s) [committing] [attempting to commit] [escaping from the immediate scene of] the (crime alleged).
(Crime alleged) is defined by Florida law as (define the crime).

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

If the underlying felony or attempted felony is charged, as a separate count, read instruction 3.12(d)(Leyally Interlocking Counts). Failure to do so may result in an impermissible inconsistent verdict. See, e.c/., Brown v. State, 959 So.2d 218 (Fla.2007).

§ 782.065(2), Fla. Stat. Enhanced penalty. Give as applicable.

If you find the defendant guilty of Attempted Felony Murder, you must then determine whether the State has further proven beyond a reasonable doubt that (victim) was a [law enforcement officer] [part-time law enforcement officer] [auxiliary law enforcement officer] [correctional officer] [part-time correctional officer] [auxiliary correctional officer] [correctional probation officer] [part-time correctional probation officer] [auxiliary correctional probation officer] engaged in the lawful performance of a legal duty.

Definitions for enhanced penalty. § 913.10, Fla. Stat.

“Law enforcement officer” means any person who is elected, appointed, or employed full time by any municipality or the state or any political subdivision thereof; who is vested with authority to bear arms and make arrests; and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state. This definition includes all certified supervisory and command personnel whose duties include, in whole or in part, the supervision, training, guidance, and management responsibilities of full-time law enforcement officers, part-time law enforcement officers, or auxiliary law enforcement officers but does not include support personnel employed by the employing agency.

“Employing agency” means any agency or unit of government or any municipality or the state or any political subdivision thereof, or any agent thereof, which has constitutional or statutory authority to employ or appoint persons as officers. The term also includes any private entity which has contracted with the state or county for the operation and maintenance of a nonjuvenile detention facility.

“Correctional officer” means any person who is appointed or employed full time by the state or any political subdivision thereof, or by any private entity which has contracted with the state or county, and whose primary responsibility is the supervision, protection, care, custody, and control, or investigation, of inmates within a correctional institution; however, the term “correctional officer” does not include any secretarial, clerical, or professionally trained personnel.

“Correctional probation officer” means a person who is employed full time by the state whose primary responsibility is the supervised custody, surveillance, and control of assigned inmates, probationers, parolees, or community controllees within institutions of the Department of Corrections or within the community. The term includes supervisory personnel whose duties include, in whole or in part, the supervision, training, and guidance of correctional probation officers, but excludes management and administrative personnel above, but not including, the probation and parole regional administrator level.

“Part-time law enforcement officer” means any person employed or appointed less than full time, as defined by an employing agency, with or without compensation, who is vested with authority to bear arms and make arrests and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state.

“Part-time correctional officer” means any person who is employed or appointed less than full time, as defined by the employing or appointing agency, with or without compensation, whose responsibilities include the supervision, protection, care, custody, and control of inmates within a correctional institution.

“Auxiliary law enforcement officer” means any person employed or appointed, with or without compensation, who aids or assists a full-time or part-time law enforcement officer and who, while under the direct supervision of a full-time or part-time law enforcement officer, has the authority to arrest and perform law enforcement functions.

“Auxiliary correctional officer” means any person employed or appointed, with or without compensation, who aids or assists a full-time or part-time correctional officer and who, while under the supervision of a full-time or part-time correctional officer, has the same authority as a full-time or part-time correctional officer for the purpose of providing supervision, protection, care, custody, and control of inmates within a correctional institution or a county or municipal detention facility.

Lesser Included Offenses

No lesser included-offenses have been identified for this- offense.

Comment

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

Regarding the enhanced penalty under Fla. Stat. § 782.065, the statute does not specify that it is an element of the offense that the defendant knew or had reason to know that the victim was a law enforcement officer, etc. In Thompson v. State, 695 So.2d 691 (Fla.1997), the Supreme Court held that knowledge of the victim’s status is a necessary element of attempted murder of a law enforcement officer, but that was prior to the enactment of Fla. Stat. § 782.065 and was based on a construction of Fla. Stat. § 784.07, which explicitly contains a knowledge requirement. As of February 2013, no case has decided whether knowledge of the victim’s status is an element under Fla. Stat. § 782,065.

This instruction was adopted in 2007 [962 So.2d 310] and amended in 2014,

6.4 ATTEMPTED SECOND DEGREE MURDER

§§ 782.04(2) and 777.04, Fla. Stat.

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

1. (Defendant) intentionally committed an act which would have resulted in the death of (victim) except that someone prevented (defendant) from killing (victim) or [he][she] failed to do so.
2. The act was imminently dangerous to another and demonstrating a depraved mind without regard for human life.

Definitions

An “act” includes a series of related actions arising from and performed pursuant to a single design or purpose.

An act is “imminently dangerous to another and demonstrating a depraved mind” if it is 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.

In order to convict the defendant of Attempted Second Degree Murder, it is not necessary for the State to prove the defendant had an intent to cause death.

It is not an attempt to commit second degree murder if the defendant abandoned the attempt to commit the offense or otherwise prevented its commission under circumstances indicating a complete and voluntary renunciation of [his][her] criminal purpose.

Give only if there is evidence that the defendant acted in the heat of passion on legally adequate provocation.

An issue in this casé is whether (defendant) did not have a depraved mind without regard for human life because [he] [she] acted in the heat of passion based on adequate provocation. In order to find that the defendant did not have a depraved mind without regard for human life because [he][she] acted in the heat of passion based on adequate provocation:

a. there must have been a sudden event that would have suspended the exercise of judgment in an ordinary reasonable person; and
b. a reasonable person would have lost normal self-control and would have been driven by a blind and unreasoning fury; and
c. there was not a reasonable amount of time for a reasonable person to cool off; and
d. a reasonable person would not have cooled off before committing the act that would have resulted in death; and
e. the (defendant) was, in fact, so provoked and did not cool off before [he][she] committed the act that would have resulted in the death of (victim).

If you have a reasonable doubt about whether the defendant had a depraved mind without regard for human life because [he][she] acted in the heat of passion based on adequate provocation, you should not find [him][her] guilty of Attempted Second Degree Murder.

§ 782.065(2), Fla. Stat. Enhanced penalty. Give if applicable.

If you find the defendant guilty of Attempted Second Degree Murder, you must then determine whether the State has further proven beyond a reasonable doubt that (victim) was a [law enforcement officer] [part-time law enforcement officer] [auxiliary law enforcement officer] [correctional officer] [part-time correctional officer] [auxiliary correctional officer] [correctional probation officer] [part-time correctional probation officer] [auxiliary correctional probation officer] engaged in the lawful performance of a legal duty.

Definitions for enhanced penalty. § 9US.10, Fla. Stat.

“Law enforcement officer” means any person who is elected, appointed, or employed full time by any municipality or the state or any political subdivision thereof; who is vested with authority to bear arms and make arrests; and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state. This definition includes all certified supervisory and command personnel whose duties include, in whole or in part, the supervision, training, guidance, and management responsibilities of full-time law enforcement officers, part-time law enforcement officers, or auxiliary law enforcement officers but does not include support personnel employed by the employing agency.

“Employing agency” means any agency or unit of government or any municipality or the state or any political subdivision thereof, or any agent thereof, which has constitutional or statutory authority to employ or appoint persons as officers. The term also includes any private entity which has contracted with the state or county for the operation and maintenance of a nonjuvenile detention facility.

“Correctional officer” means any person who is appointed or employed full time by the state or any political subdivision thereof, or by any private entity which has contracted with the state or county, and whose primary responsibility is the supervision, protection, care, custody, and control, or investigation, of inmates within a correctional institution; however, the term “correctional officer” does not include any secretarial, clerical, or professionally trained personnel.

“Correctional probation officer” means a person who is employed full time by the state whose primary responsibility is the supervised custody, surveillance, and control of assigned inmates, probationers, parolees, or community controllees within institutions of the Department of Corrections or within the community. The term includes supervisory personnel whose duties include, in whole or in part, the supervision, training, and guidance of correctional probation officers, but excludes management and administrative personnel above, but not including, the probation and parole regional administrator level.

“Part-time law enforcement officer” means any person employed or appointed less than full time, as defined by an employing agency, with or without compensation, who is vested with authority to bear arms and make arrests and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state.

“Part-time correctional officer” means any person who is employed or appointed less than full time, as defined by the employing or appointing agency, with or without compensation, whose responsibilities include the supervision, protection, care, custody, and control of inmates within a correctional institution.

“Auxiliary law enforcement officer” means any person employed or appointed, with or without compensation, who aids or assists a full-time or part-time law enforcement officer and who, while under the direct supervision of a full-time or part-time law enforcement officer, has the authority to arrest and perform law enforcement functions.

“Auxiliary correctional officer” means any person employed or appointed, with or without compensation, who aids or assists a full-time or part-time correctional officer and who, while under the supervision of a full-time or part-time correctional officer, has the same authority as a full-time or part-time correctional officer for the purpose of providing supervision, protection, care, custody, and control of inmates within a correctional institution or a county or municipal detention facility.

Lesser Included Offenses

Comment

Regarding the enhanced penalty under Fla. Stat. § 782,065, the statute does not specify that it is an element of the offense that the defendant knew or had reason to know that the victim was a law enforcement officer, etc. In Thompson v. State, 695 So.2d 691 (Fla.1997), the Supreme Court held that knowledge of the victim’s status is a necessary element of attempted murder of a law enforcement officer, but that was prior to the enactment of Fla. Stat. § 782.065 and was based on a construction of Fla. Stat. § 784.07, which explicitly contains a knowledge requirement. As of February 2013, no case has decided whether knowledge of the victim’s status is an element under Fla. Stat. § 782,065.

This instruction was adopted in 1994 and amended in 1997 [697 So.2d 84] and 2014.

7.2 MURDER — FIRST DEGREE

§ 782.04(l)(a), Fla. Stat.

When there will be instructions on both premeditated and felony murder, the following explanatory paragraph should be read to the jury.

There are two ways in which a person may be convicted of first degree murder. One is known as premeditated murder and the other is known as felony murder.

To prove the crime of First Degree Premeditated Murder, the State must prove the following three elements beyond a reasonable doubt:

1. (Victim) is dead.
2. The death was caused by the criminal act of (defendant).
3. There was a premeditated killing of (victim).

Definitions.

An “act” includes a series of related actions arising from and performed pursuant to a single design or purpose.

“Killing with premeditation” is killing after consciously deciding to do so. The decision must be present in the mind at the time of the killing. The law does not fix the exact period of time that must pass between the formation of the premeditated intent to kill and the killing. The period of time must be long enough to allow reflection by the defendant. The premeditated intent to kill must be formed before the killing.

The question of premeditation is a question of fact to be determined by you from the evidence. It will be sufficient proof of premeditation if the circumstances of the killing and the conduct of the accused convince you beyond a reasonable doubt of the existence of premeditation at the time of the killing.

Transferred intent. Give if applicable.

If a person has a premeditated design to kill one person and in attempting to kill that person actually kills another person, the killing is premeditated.

Give only if there is evidence that the defendant acted in the heat of passion on legally adequate provocation.

An issue in this case is whether (defendant) did not act with a premeditated design to kill because [he][she] acted in the heat of passion based on adequate provocation. In order to find that the defendant did not act with a premeditated design to kill because [he] [she] acted in the heat of passion based on adequate provocation:

a. there must have been a sudden event that would have suspended the exercise of judgment in an ordinary reasonable person; and
b. a reasonable person would have lost normal self-control and would have been driven by a blind and unreasoning fury; and
c. there was not a reasonable amount of time for a reasonable person to cool off; and
d. a reasonable person would not have cooled off before committing the act that caused death; and
e. the (defendant) was, in fact, so provoked and did not cool off before [he][she] committed the act that caused the death of (victim).

If you have a reasonable doubt about whether the defendant acted with a premeditated design to kill because [he][she] acted in the heat of passion based on adequate provocation, you should not find [him] [her] guilty of First Degree Premeditated Murder.

§ 782.065(2), Fla. Stat. Enhanced penalty. Give if applicable.

If you find the defendant guilty of First Degree Murder, you must then determine whether the State has further proven beyond a reasonable doubt that (victim) was a [law enforcement officer] [part-time law enforcement officer] [auxiliary law enforcement officer] [correctional officer] [part-time correctional officer] [auxiliary correctional officer] [correctional probation officer] [part-time correctional probation officer] [auxiliary correctional probation officer] engaged in the lawful performance of a legal duty.

Definitions for enhanced penalty. § 9⅛3.10, Fla. Stat.

“Law enforcement officer” means any person who is elected, appointed, or employed full time by any municipality or the state or any political subdivision thereof; who is vested with authority to bear arms and make arrests; and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state. This definition includes all certified supervisory and command personnel whose duties include, in whole or in part, the supervision, training, guidance, and management responsibilities of full-time law enforcement officers, part-time law enforcement officers, or auxiliary law enforcement officers but does not include support personnel employed by the employing agency.

“Employing agency” means any agency or unit of government or any municipality or the state or any political subdivision thereof, or any agent thereof, which has constitutional or statutory authority to employ or appoint persons as officers. The term also includes any private entity which has contracted with the state or county for the operation and maintenance of a nonjuvenile detention facility.

“Correctional officer” means any person who is appointed or employed full time by the state or any political subdivision thereof, or by any private entity which has contracted with the state or county, and whose primary responsibility is the supervision, protection, care, custody, and control, or investigation, of inmates within a correctional institution; however, the term “correctional officer” does not include any secretarial, clerical, or professionally trained personnel.

“Correctional probation officer” means a person who is employed full time by the state whose primary responsibility is the supervised custody, surveillance, and control of assigned inmates, probationers, parolees, or community controllees within institutions of the Department of Corrections or within the community. The term includes supervisory personnel whose duties include, in whole or in part, the supervision, training, and guidance of correctional probation officers, but excludes management and administrative personnel above, but not including, the probation and parole regional administrator level.

“Part-time law enforcement officer” means any person employed or appointed less than full time, as defined by an employing agency, with or without compensation, who is vested with authority to bear arms and make arrests and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state.

“Part-time correctional officer” means any person who is employed or appointed less than full time, as defined by the employing or appointing agency, with or without compensation, whose responsibilities include the supervision, protection, care, custody, and control of inmates within a correctional institution.

“Auxiliary law enforcement officer” means any person employed or appointed, with or without compensation, who aids or assists a full-time or part-time law enforcement officer and who, while under the direct supervision of a full-time or part-time law enforcement officer, has the authority to arrest and perform law enforcement functions.

“Auxiliary correctional officer” means any person employed or appointed, with, or without compensation, who aids or assists a full-time or part-time correctional officer and who, while under the supervision of a full-time or part-time correctional officer, has the same authority as a full-time or part-time correctional officer for the purpose of providing supervision, protection, care, custody, and control of inmates within a correctional institution or a county or municipal detention facility.

Lesser Included Offenses

Comment

Regarding the enhanced penalty under Fla. Stat. § 782.065, the statute does not specify that it is an element of the offense that the defendant knew or had reason to know that the victim was a law enforcement officer, etc. In Thompson v. State, 695 So.2d 691 (Fla.1997), the Supreme Court held that knowledge of the victim’s status is a necessary element of attempted murder of a law enforcement officer, but that was prior to the enactment of Fla. Stat. § 782.065 and was based on a construction of Fla. Stat. § 784.07, which explicitly contains a knowledge requirement. As of February 2013, no case has decided whether knowledge of the victim’s status is an element under Fla. Stat. § 782.065.

This instruction was adopted in 1981 and was amended in October 1981, and July 199-7-,-and 2008 [994 So.2d 10381, and 2014.

7.4 MURDER — SECOND DEGREE

§ 782.04(2), Fla. Stat.

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

1. (Victim) is dead.
2. The death was caused by the criminal act of (defendant).
3. There was an unlawful killing of (victim) by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.

Definitions.

An “act” includes a series of related actions arising from and performed pursuant to a single design or purpose.

An act is “imminently dangerous to another and demonstrating a depraved mind” if it is 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.

In order to convict of Second Degree Murder, it is not necessary for the State to prove the defendant had an intent to cause death.

Give only if there is evidence that the defendant acted in the heat of passion on legally adequate provocation.

An issue in this case is whether (defendant) did not have a depraved mind without regard for human life because [he][she] acted in the heat of passion based on adequate provocation. In order to find that the defendant did not have a depraved mind without regard for human life because [he] [she] acted in the heat of passion based on adequate provocation:

a. there must have been a sudden event that would have suspended the exercise of judgment in an ordinary reasonable person; and
b. a reasonable person would have lost normal self-control and would have been driven by a blind and unreasoning fury; and
c. there was not a reasonable amount of time for a reasonable person to cool off; and
d. a reasonable person would not have cooled off before committing the act that caused death; and
e. the (defendant) was, in fact, so provoked and did not cool off before [he][she] committed the act that caused the death of (victim).

If you have a reasonable doubt about whether the defendant had a depraved mind without regard for human life because [he][she] acted in the heat of passion based on adequate provocation, you should not find [him][her] guilty of Second Degree Murder.

§ 782.065(2), Fla. Stat. Enhanced penalty. Give if applicable.

If you find the defendant guilty of Second Degree Murder^ you must then determine whether the State has further proven beyond a reasonable doubt that (victim) was a [law enforcement officer] [part-time law enforcement officer] [auxiliary law enforcement officer] [correctional officer] [part-time correctional officer] [auxiliary correctional officer] [correctional probation officer] [part-time correctional probation officer] [auxiliary correctional probation officer] engaged in the lawful performance of a legal duty.

Definitions. § 9US.10, Fla. Stat.

“Law enforcement officer” means any person who is elected, appointed, or employed full time by any municipality or the state or any political subdivision thereof; who is vested with authority to bear arms and make arrests; and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state. This definition includes all certified supervisory and command personnel whose duties include, in whole or in part, the supervision, training, guidance, and management responsibilities of full-time law enforcement officers, part-time law enforcement officers, or auxiliary law enforcement officers but does not include support personnel employed by the employing agency.

“Employing agency” means any agency or unit of government or any municipality or the state or any political subdivision thereof, or any agent thereof, which has constitutional or statutory authority to employ or appoint persons as officers. The term also includes any private entity which has contracted with the state or county for the operation and maintenance of a nonjuvenile detention facility.

“Correctional officer” means any person who is appointed or employed full time by the state or any political subdivision thereof, or by any private entity which has contracted with the state or county, and whose primary responsibility is the supervision, protection, care, custody, and control, or investigation, of inmates within a correctional institution; however, the term “correctional officer” does not include any secretarial, clerical, or professionally trained personnel.

“Correctional probation officer” means a person who is employed full time by the state whose primary responsibility is the supervised custody, surveillance, and control of assigned inmates, probationers, parolees, or community controllees within institutions of the Department of Corrections or within the community. The term includes supervisory personnel whose duties include, in whole or in part, the supervision, training, and guidance of correctional probation officers, but excludes management and administrative personnel above, but not including, the probation and parole regional administrator level.

“Part-time law enforcement officer” means any person employed or appointed less than full time, as defined by an employing agency, with or without compensation, who is vested with authority to bear arms and make arrests and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state.

“Part-time correctional officer” means any person who is employed or appointed less than full time, as defined by the employing or appointing agency, with or without compensation, whose responsibilities include the supervision, protection, care, custody, and control of inmates within a correctional institution.

“Auxiliary law enforcement officer” means any person employed or appointed, with or without compensation, who aids or assists a full-time or part-time law enforcement officer and who, while under the direct supervision of a full-time or part-time law enforcement officer, has the authority to arrest and perform law enforcement functions.

“Auxiliary correctional officer” means any person employed or appointed, with or without compensation, who aids or assists a full-time or part-time correctional officer and who, while under the supervision of a full-time or part-time correctional officer, has the same authority as a full-time or part-time correctional officer for the purpose of providing supervision, protection, care, custody, and control of inmates within a correctional institution or a county or municipal detention facility.

Lesser Included Offenses

Comment

Regarding the enhanced penalty under Fla. Stat. § 782.065, the statute does not specify that it is an element of the offense that the defendant knew or had reason to know that the victim was a law enforcement officer, etc. In Thompson v. State, 695 So.2d 691 (Fla.1997), the Supreme Court held that knowledge of the victim’s status is a necessary element of attempted murder of a law enforcement officer, but that was prior to the enactment of Fla. Stat. § 782.065 and was based on a construction of Fla. Stat. § 784.07, which explicitly contains a knowledge requirement. As of February 2013, no case has decided whether knowledge of the victim’s status is an element under Fla. Stat. § 782.065.

This instruction was adopted in 1981 and amended in 1997 [697 So.2d 84], and 2008 [994 So.2d 1038], and 2014.

      . The amendments as reflected in the appendix are to the instructions as they appear on the Court's website at www.floridasupreme court.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.


source: Caselaw Access Project

author: LEWIS, J.

license: Public Domain

text:
    Ricardo Hermon GLASCO, Petitioner, v. STATE of Florida, Respondent.
    No. SC12-1292.
    Supreme Court of Florida.
    April 24, 2014.
    James S. Purdy, Public Defender, and Doris R. Ball, Assistant Public Defender, Daytona Beach, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL; Kristen Lynn Davenport, Assistant Attorney General, Daytona Beach, FL, for Respondent.
   LEWIS, J.

We have for review State v. Glaseo, 90 So.3d 905 (Fla. 5th DCA 2012), in which the Fifth District Court of Appeal reversed the trial court’s order granting a motion to suppress evidence found on a cellular phone without a search warrant. The Fifth District, in following the First District Court of Appeal and relying on Smallwood v. State, 61 So.3d 448 (Fla. 1st DCA 2011), quashed, 113 So.3d 724 (Fla. 2013), certified the following question as one of great public importance:

DOES THE HOLDING IN UNITED STATES V. ROBINSON, [414 U.S. 218, 94 S.Ct. 467 38 L.Ed.2d 427 (1973)], ALLOW A POLICE OFFICER TO SEARCH THROUGH INFORMATION CONTAINED WITHIN A CELL PHONE THAT IS ON AN ARRES-TEE’S PERSON AT THE TIME OF A VALID ARREST?

Glaseo, 90 So.3d at 908-09. At the time that the Fifth District issued its decision in Glaseo, Smallwood was pending in this Court. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

We stayed proceedings in this case pending the disposition of Smallwood v. State, 113 So.3d 724, 741 (Fla.2013), in which we ultimately quashed the First District’s underlying Smallwood decision. We then issued an order directing Respondent to show cause why this Court should not accept jurisdiction, summarily quash the Fifth District’s decision in Glaseo, and remand for reconsideration in light of our decision in Smallwood. Respondent filed a response conceding that “this case should be remanded for reconsideration in light of this Court’s recent decision in Smallwood, v. State.” Petitioner did not file a reply.

Upon consideration of the response, we grant the petition for review, quash the Fifth District’s decision in Glaseo, and remand this case to the Fifth District for further proceedings consistent with this Court’s decision in Smallwood.

It is so ordered.

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


text:
    In re AMENDMENTS TO the FLORIDA RULES OF CRIMINAL PROCEDURE.
    No. SC13-2066.
    Supreme Court of Florida.
    April 24, 2014.
    Melanie L. Casper, Chair, Criminal Procedure Rules Committee, West Palm Beach, FL; John F. Harkness, Jr., Executive Director and Heather Savage Telfer, Staff Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
   PER CURIAM.

In the Court’s December 12, 2013, opinion, the Court amended the Florida Rules of Criminal Procedure in response to out-of-cycle, fast-track proposals by The Florida Bar’s Criminal Procedure Rules Committee (Committee). See In re Amends, to Fla. Rules of Grim. Pro., 132 So.3d 123 (Fla.2013). The amendments to the various criminal rules were in response to 2013 legislation. Because the amendments were not published for comment prior to adoption, the Court allowed sixty days in which interested persons could file comments. Id., 132 So.3d at 124.

A comment was filed by the Florida Department of Law Enforcement pertaining to the amendments to rules 3.692 (Petition to Seal or Expunge) and 3.989 (Affidavit, Petition, and Order to Expunge or Seal Forms), suggesting that all references to “human trafficking expunetion” be removed from rules 3.692 and 3.989. The Committee responds that the comment’s distinction between section 943.0583 and sections 943.0585-943.059 expungements is well-taken. Accordingly, we add a new subdivision to rule 3.692 to clearly delineate the requirements for a petition to expunge under section 943.0583, Florida Statutes. We further delete the requirement in the forms, rules 3.989(e) and (g), for a “certificate of eligibility to expunge from FDLE.” Finally, we amend rule 3.989(g) to include the language that “a conviction expunged under this section is deemed to have been vacated due to a substantive defect in the underlying criminal proceedings.” We amend rules 3.692 and 3.989(e) and (g) as proposed by the Committee and as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments shall become effective immediately upon release of this opinion.

It is so ordered.

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

APPENDIX

RULE 3.692. PETITION TO SEAL OR EXPUNGE

(a) Requirements of Petition.

(1) All relief sought by reason of sections 943.0583943.0585-943.059, Florida Statutes, shall be by written petition, filed with the clerk. The petition shall state the grounds on which it is based and the official records to which it is directed and shall be supported by an affidavit of the party seeking relief, which affidavit shall state with particularity the statutory grounds and the facts in support of the motion. A petition seeking to seal or expunge nonjudicial criminal history records must be accompanied by a certificate of eligibility issued to the petitioner by the Florida Department of Law Enforcement. A copy of the completed petition and affidavit shall be served on the prosecuting attorney and the arresting authority. Notice and hearing shall be as provided in rule 3.590(c).

(2) All relief sought by reason of section 943.0583, Florida Statutes, shall be by written petition, filed with the clerk. The petition shall state the grounds on which it is based and the official records to which it is directed; shall be supported by the petitioner’s sworn statement attesting that the petitioner is eligible for such an expunction; and to the best of his or her knowledge or belief that the petitioner does not have any other petition to expunge or any petition to seal pending before any court; and shall be accompanied by official documentation of the petitioner’s status as a victim of human trafficking, if any exists. A petition to expunge, filed under section 943.0583, Florida Statutes, is not required to be accompanied by a certificate of eligibility from the Florida Department of Law Enforcement. A copy of the completed petition, sworn statement, and any other official documentation of the petitioner’s status as a victim of human trafficking, shall be served on the prosecuting attorney and the arresting authority. Notice and hearing shall be as provided in rule 3.590(c).

(b)-(f) [No changes]

Committee Notes

RULE 3.989. AFFIDAVIT, PETITION, AND ORDER TO EXPUNGE OR SEAL FORMS

(a)-(d) [No changes]

(e) Petition to Expunge; Human Trafficking Victim.

In the Circuit Court of the _Judicial Circuit, in and for_

County, Florida

Case No.:_

Division_

State of Florida,

Plaintiff, v. Defendant/Petitioner.

PETITION TO EXPUNGE/HUMAN TRAFFICKING VICTIM

The petitioner, ., by and through the undersigned attorney, petitions this honorable court, under Florida Rule of Criminal Procedure 3.692 and section. 943.0583, Florida Statutes, to . .-^expunge.... all criminal history record information in the custody of any criminal justice agency and the official records of the court concerning the petitioner’s arrest and/or conviction on.(date(s))., by.(arresting agency and/or prosecuting authority)., for.(charges and/or offenses)., and as grounds therefor shows:

1. On.(date(s))., the petitioner,., a.(race/sex)., whose date of birth is.(date of birth)., was arrested by.(arresting agency) ., and charged with. .... (charges). or was convicted by.(name of prosecuting authority).of.(offenses).

2. The petitioner has been the victim of human trafficking, as discussed in section 787.06, Florida Statutes, and has committed an offense, other than those offenses listed in 775.084(l)(b)l, which was committed as a part of a human trafficking scheme of which he/she was the victim or at the direction of an operator of the scheme as evidenced by the attached official documentation of his/her status, or may be shown by clear and convincing evidence presented to the Court.

3* — A- Certificate of-Eligibility for, .. : expunction. — —of—nonjudicial criminal-history records — issued by the Florida -Department of -Law Enforcoment-accompanies-this-pet-ition,

WHEREFORE, the petitioner moves to.expunge any criminal history record information and any official court records regarding his/her arrest and/or conviction by.(arresting agency and/or name of prosecuting authority)., for.(charges and/or offenses)., on.(date(s)).

I HEREBY CERTIFY that a true and correct copy of the foregoing pleading has been served on.(name of prosecuting authority)., (check one). State Attorney for the . Judicial Circuit, in and for . County,. Special Prosecutor,.Statewide Prosecutor; .(arresting agency).; . (Sheriff of county in which defendant was arrested, if different); and the Florida Department of Law Enforcement, on.(date).

Name:

Address:

City/State:

Telephone Number:

E-mail Address:

Fla. Bar No.:

. or produced identification

Type of identification produced...

(f) [No changes]

(g) Order to Expunge; Human Trafficking Victim.

In the Circuit Court of the _Judicial Circuit, in and for_

County, Florida

Case No.: _

Division-

State of Florida,

Plaintiff, v. Defendant/Petitioner.

ORDER TO EXPUNGE, HUMAN TRAFFICKING VICTIM, UNDER SECTION 943.0585, FLORIDA STATUTES, AND FLORIDA RULE OF CRIMINAL PROCEDURE 3.692

THIS CAUSE, having come on to be heard before me this date upon a petition to expunge certain records of the petitioner’s arrest and/or conviction on.(date(s))., by.(arresting agency and/or name of prosecuting authority) , for (charges and/or offenses)., and the court having heard argument of counsel and being otherwise fully advised in the premises, the court hereby finds the following:

L The petitioner has been the victim of human trafficking, as discussed in section 787.06, Florida Statutes, and has committed an offense, other than those offenses listed in 775.084(l)(b)l, which was committed as a part of a human trafficking scheme of which he/she was the victim, or at the direction of an operator of the scheme. A conviction expunged under this section is deemed to have been vacated due to a substantive defect in the underlying criminal proceedings.

& — A Certificate of Eligibility issued by the Florida-Department of-Law Enforcement accompanied-the petition for expunction-of nonjudicial-criminal history records. Whereupon it is

ORDERED AND ADJUDGED that the petition to expunge is granted. All court records pertaining to the above-styled case shall be sealed in accordance with the procedures set forth in Florida Rule of Criminal Procedure 3.692; and it is further

ORDERED AND ADJUDGED that the clerk of this court shall forward a certified copy of this order to the (check one). state attorney,. special prosecutor, . statewide prosecutor, .(arresting agency)., and the Sheriff of . County, who will comply with the procedures set forth in section 943.0583, Florida Statutes, and appropriate regulations of the Florida Department of Law Enforcement, and who will further forward a copy of this order to any agency that their records reflect has received the instant criminal history record information; and it is further

ORDERED AND ADJUDGED that.(arresting agency).shall expunge all information concerning indicia of arrest, conviction, or criminal history record information regarding the arrest, conviction, or alleged criminal activity to which this petition pertains in accordance with the procedures set forth in section 943.0583, Florida Statutes, and Florida Rule of Criminal Procedure 3.692.

All costs of certified copies involved herein are to be borne by the

DONE AND ORDERED in Chambers at . County, Florida, on.(date).

Circuit Court Judge

Committee Notes

[No Changes]

      . We have jurisdiction. See art. V, § 2(a), Fla. Const.

      . A separate comment was filed by the Honorable O.H. Eaton, Jr., solely addressing additional problems with rule 3.121, which the Committee responds will be the subject of its next regular-cycle report.


author: NORTHCUTT, Judge.

text:
    Anthony D’ARCANGELO, Petitioner, v. STATE of Florida, Respondent.
    No. 2D10-1375.
    District Court of Appeal of Florida, Second District.
    April 18, 2011.
    Michael J. Minerva and Melissa Montle of the Innocence Project of Florida, Inc., Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Respondent.
   NORTHCUTT, Judge.

In this unusual case, Anthony D’Arcan-gelo seeks certiorari review of the circuit court’s order declining to determine his competency and to stay proceedings on his motion for postconviction relief. We grant the petition.

In 1982 a jury convicted D’Arcangelo of two counts of first-degree murder. The State endeavored to have him sentenced to death, but the penalty-phase jurors split evenly on the question. The trial court concluded that the appropriate punishment was life imprisonment, and it imposed that sentence.

At D’Arcangelo’s guilt-phase trial, the State presented testimony from an FBI agent that he performed a comparative bullet lead analysis (CBLA), comparing bullets recovered from the crime scene with unspent bullets discovered at D’Ar-cangelo’s residence. The agent found an association between the bullets from the two locations. He testified that “the bullets came from the same box of ammunition or another box of ammunition having the same composition.”

Many years later, in August 2008, an FBI laboratory director sent a letter to the Hillsborough County State Attorney’s office advising that the agent’s expert trial testimony overstated the significance of his conclusions. Based on this newly discovered information, D’Arcangelo filed a pro se motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Some months later, he obtained legal counsel, who filed an amended motion.

D’Arcangelo claimed that the CBLA testimony was the only evidence that physically linked him to the crime and that, at the time of trial, neither he nor his attorney could have discovered that this evidence was unreliable. He asserted that if the discredited evidence had not been admitted, he likely would have been acquitted. D’Arcangelo asked the postconviction court to vacate his conviction and sentence and to grant him a new trial. Cf. Murphy v. State, 24 So.3d 1220 (Fla. 2d DCA 2009) (holding allegations in the prisoner’s rule 3.850 motion that he recently discovered the CBLA evidence presented at his 1995 trial had been discredited and that he would probably have been acquitted if the evidence had not been introduced could support relief under rule 3.850(b)(1)); Smith v. State, 23 So.3d 1277 (Fla. 2d DCA 2010) (same).

In late 2009 D’Arcangelo’s attorney began to suspect that he was incompetent, and she hired an expert to examine him. The expert confirmed counsel’s suspicions. Counsel then filed a simple motion seeking a stay of the rule 3.850 proceedings. The motion asserted that there was a substantial issue regarding D’Arcangelo’s competence and that due process required that he be competent during the postconviction process. The court denied the motion, relying on Carter v. State, 706 So.2d 873 (Fla.1997), for the proposition that in post-conviction proceedings a defendant’s competence is necessary only when a factual matter is at issue or when the development of such an issue would require the defendant’s input. In its ruling the court limited its focus to the question raised by D’Ar-eangelo’s rule 3.850 motion, i.e., whether the newly-discovered evidence discrediting the CBLA analysis would have resulted in a different outcome at trial, and it determined that the motion presented a legal issue, not a factual one.

Counsel thereafter filed another motion seeking the same relief, but this time describing the quandary that D’Ar-cangelo could face. The motion recounted that case law bearing on whether D’Arcan-gelo could be exposed to the death penalty after a retrial was not consistent. Compare Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981) (holding that a jury’s verdict of life imprisonment barred the possibility of the death penalty at a retrial); Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984) (barring death penalty on retrial when the trial judge acquitted the defendant), with Sattazahn v. Pennsylvania, 537 U.S. 101, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003) (noting that a trial court’s dismissal of jurors unable to reach á unanimous verdict and its entry of a life sentence did not bar the death penalty on retrial). Thus, the motion argued, D’Ar-cangelo had a factual decision to make: Should he proceed with his rule 3.850 motion and potentially expose himself to the death penalty? Or should he play it safe, withdraw his challenge concerning the CBLA testing, and spend the rest of his life in prison? The court again denied the motion.

D’Arcangelo filed a timely petition for a writ of certiorari seeking to quash the postconviction court’s order. See State v. Ayala, 604 So.2d 1275 (Fla. 4th DCA 1992). We have stayed the proceedings on his motion for postconviction relief pending the disposition of his certiorari petition.

To assist us in determining whether to exercise our certiorari jurisdiction, we directed the State to file an “unequivocal response” to the question of whether it would be barred from seeking the death penalty if D’Arcangelo were to be granted a new trial. The State advised that “[biased upon the record, or lack, thereof, in this case, it is submitted that the State can go forward and seek the penalty on a retrial of this case.” Thus, D’Arcangelo’s dilemma is squarely before us.

In denying the motion for determination of competency and for a stay of the post-conviction proceedings, the circuit court relied on Carter, in which the supreme court established procedures addressing the incompetence of death-sentenced defendants in postconviction cases. See Carter, 706 So.2d at 876. Those procedures are now incorporated in Florida Rule of Criminal Procedure 3.851(g). It provides that a “death-sentenced prisoner pursuing collateral relief under this rule who is found by the court to be mentally incompetent shall not be proceeded against if there are factual matters at issue, the development or resolution of which require the prisoner’s input.” Fla. R. Crim. P. 3.851(g)(1). A competency hearing is required if “there are reasonable grounds to believe that a death-sentenced prisoner is incompetent to proceed and that factual matters are at issue.” Fla. R. Crim. P. 3.851(g)(3).

Carter is, indeed, instructive. But it does not directly control this case. Carter applies to incompetent death-sentenced prisoners only, as does rule 3.851. And as the Carter court noted, its purpose was to further society’s interest in the proper imposition of the death penalty while insuring a proper and timely resolution of post-conviction proceedings. 706 So.2d at 877. Rule 3.850, applicable in postconviction proceedings by prisoners who, like D’Ar-cangelo, are not sentenced to death, contains no incompetency procedures comparable to those set forth in rule 3.851.

Even so, Florida jurisprudence has long held that every individual has a natural right to due process, which embodies a fundamental conception of fairness. See Jones v. State, 740 So.2d 520, 523 (Fla.1999). In Luckey v. State, 979 So.2d 353 (Fla. 5th DCA 2008), a case involving a prisoner not sentenced to death, the post-conviction court denied a rule 3.850 claim even though the prisoner exhibited signs of incompetence at the ■ evidentiary hearing on his claim. The Fifth District reversed the denial of the claim, noting that although Carter was limited to death-sentenced defendants, basic due process considerations such as notice and an opportunity to be heard required a postconviction court to address a prisoner’s mental competence before proceeding with an eviden-tiary hearing. Id. at 356.

Luckey was consistent with Carter in one respect that is not as apparent in D’Arcangelo’s case: Luckey involved an evidentiary hearing on the factual issue of whether Luckey’s trial counsel had been ineffective by allegedly failing to warn him that he faced a term of life imprisonment as a prison releasee reoffender if he rejected the State’s fifteen-year plea offer. In other words, Luckey fell neatly on the “factual issue” side of the factual-legal dichotomy. drawn by the Carter court when it extended to death-sentenced postconviction petitioners the right to be competent only in proceedings involving factual issues.

D’Arcangelo’s counsel maintains that the decision whether to further pursue his rule 3.850 petition and possibly expose himself to the death penalty is a factual issue for purposes of Carter. It is tempting to agree — the question certainly does not present a legal issue to be decided by the postconviction court. But it is apparent that when outlining the right to be competent in capital postconviction proceedings, the Carter court had in mind factual matters “at issue,” i.e., fact issues to be determined by the postconviction court based on evidentiary presentations. D’Arcangelo’s issue cannot be resolved by the court or by his attorney. The decision whether to go forward in his quest for postconviction relief must be his alone.

But even if D’Arcangelo’s dilemma does not fit squarely within the fact-at-issue limitation, there is reason to believe that the limitation does not, or should not, apply to his case. As mentioned, Carter was premised in part on the court’s goal of “furthering society’s interest in the proper imposition of the death sentence while at the same time promoting the timely commencement and resolution of postconviction proceedings.” Carter, 706 So.2d at 877. Here, society’s interest in carrying out the prisoner’s sentence is not a factor; D’Arcangelo was sentenced to life imprisonment, he has already begun serving that sentence, and he would continue serving that sentence during any delay in his post-conviction proceeding occasioned by a determination that he is incompetent.

For that reason, among others, it is unclear whether the Carter court would find that D’Arcangelo has the right to be competent at this postconviction stage. The court did not directly address this issue in the context of a noncapital case, but we note that the Carter opinion cited favorably to State v. Debra A.E., 188 Wis.2d 111, 523 N.W.2d 727 (1994), a case that was similar to D’Arcangelo’s in that significant respect. Carter, 706 So.2d at 876. In Debra A.E., counsel for a noncapi-tal postconviction relief petitioner requested a competency determination because he feared that his client was not competent to decide whether to proceed with her petition and possibly subject herself to a harsher, albeit noncapital, penalty. The Supreme Court of Wisconsin held that the petitioner was entitled to be competent in order to make that decision.

Competency is a contextualized concept; the meaning of competency in the context of legal proceedings changes according to the purpose for which the competency determination is made. Whether a person is competent depends on the mental capacity that the task at issue requires. One task required of defendants during postconviction relief is to make the decision to proceed with or forego relief.

523 N.W.2d at 732 (footnotes omitted). The court concluded that a defendant is incompetent to pursue postconviction relief “when he or she is unable to assist counsel or to make decisions committed by law to the defendant with a reasonable degree of rational understanding.” Id. (footnote omitted).

We do not suggest that the Carter court necessarily would recognize a right of competency for any postconviction petitioner who might face a harsher penalty after a retrial. But the very existence of the Carter decision is testament to the court’s recognition that “death is different.” Crump v. State, 654 So.2d 545, 547 (Fla.1995) (citing State v. Dixon, 283 So.2d 1, 17 (Fla.1973)). Unlike the case of a capital defendant, who has nothing to lose by pursuing postconviction relief, a life-imprisoned defendant who might face the death penalty after a retrial risks his life by going forward. This would not be merely a harsher punishment; it would be the harshest, irremediable penalty that our society can exact.

For the reasons described, we conclude that notions of due process and basic fairness — essential requirements of law — require that D’Arcangelo be competent when deciding whether to proceed on a course that might eventually cause him to be put to death. Therefore, we grant D’Arcange-lo’s petition and quash the order denying his motion for a determination of his competency and a stay of the rule 3.850 proceedings pending that determination or his restoration to competency.

Petition granted.

DAVIS and SILBERMAN, JJ., Concur.

      . Arguably, the question of whether D'Arcan-gelo’s trial would have produced a different result if the CBLA evidence had not been admitted comes closer to the kind of factual issue contemplated in Carter.


text:
    Jeremy WILLETT, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-3616.
    District Court of Appeal of Florida, Second District.
    Aug. 21, 2013.
    Howard L. Dimmig, II, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

In this Anders appeal, we affirm the judgment and sentences but remand solely for entry of a corrected written revocation order specifying the condition of probation violated.

Affirmed; remanded with directions.

KHOUZAM, BLACK, and SLEET, JJ., Concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: KELLY, Judge.

text:
    Dain F. SEARLE, Appellant, v. Anne S. BENT, Sabal Trust Company, as Guardian of the property of Dain F. Searle, and Thomas Bellino, as Guardian of the person of Dain F. Searle, Appellees.
    No. 2D11-3452.
    District Court of Appeal of Florida, Second District.
    Sept. 18, 2013.

      Marie Tomassi, Charles M. Harris, and Karen E. Lewis of Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullís, P.A., St. Petersburg, for Appellant.
    Barry F. Spivey and Cynthia L. Fallon of Spivey & Fallon, P.A., Sarasota, for Appellee Anne S. Bent.
    Robert Persante and Zackary T. Zurow-este of The Persante Law Group, P.A., Clearwater; and William F. Belcher, St. Petersburg, for Appellee Sabal Trust Company.
    No appearance for Appellee Thomas Bellino.
   KELLY, Judge.

This appeal arises from a guardianship proceeding brought by Anne S. Bent to determine the capacity of her mother, Dain F. Searle. After conducting an evi-dentiary hearing and receiving testimony, the trial court determined that Ms. Searle was incapacitated and appointed Thomas Bellino and Sabal Trust Company as guardians of her person and property. We affirm but write only to address Ms. Searle’s argument that the trial court erred by not considering less restrictive alternatives to a guardianship in accordance with the requirements of chapter 744.

Ms. Searle is an elderly widow of considerable financial means. In 2010, Ms. Bent petitioned to have Ms. Searle deemed incapacitated due to her poor physical and mental health and because of a concern Ms. Searle was being exploited by her caretakers. During the proceedings, Ms. Bent filed a “Verified Statement by Interested Person Pursuant to F.S. § 744.331(6)®.” In that affidavit, she alleged that her mother’s durable power of attorney and various estate planning documents executed after December 3, 2006, were invalid because of Ms. Searle’s lack of mental capacity or because the documents were the product of undue influence. The verified statement contained numerous facts regarding Ms. Searle’s mental and physical condition, as well as findings made by medical experts regarding her mental capacity and need for a guardian.

Following the adjudicatory hearing, at which extensive evidence was presented, the trial court issued a detailed order finding Ms. Searle to be incapacitated and in need of a plenary guardianship. The order stated, in part, that based on the totality of the evidence, the verified statement filed by Ms. Bent established a reasonable factual basis to believe that Ms. Searle’s trust, trust amendments, and durable power of attorney were invalid and thus not an alternative to guardianship.

On appeal, Ms. Searle contends the trial court erred in relying on the allegations in Ms. Bent’s verified statement instead of considering less restrictive alternatives to guardianship as required by statute. She claims the trial court’s actions violated her right to due process by “effectively invalidating her entire estate plan” based solely on the filing of an affidavit.

Section 744.331, Florida Statutes (2010), sets forth the procedure for determining incapacity and for the appointment of a guardian. The statute provides, in pertinent part:

(6) ORDER DETERMINING INCAPACITY.—
(b) When an order determines that a person is incapable of exercising delega-ble rights, the court must consider and find whether there is an alternative to guardianship that will sufficiently address the problems of the incapacitated person. A guardian must be appointed to exercise the incapacitated person’s delegable rights unless the court finds there is an alternative. A guardian may not be appointed if the court finds there is an alternative to guardianship which will sufficiently address the problems of the incapacitated person.
(f) Upon the filing of a verified statement by an interested person stating:
1. That he or she has a good faith belief that the alleged incapacitated person’s trust, trust amendment, or durable power of attorney is invalid; and 2. A reasonable factual basis for that belief, the trust, trust amendment, or durable power of attorney shall not be deemed to be an alternative to the appointment of a guardian. The appointment of a guardian does not limit the court’s power to determine that certain authority granted by a durable power of attorney is to remain exercisable by the attorney in fact.

§ 744.331(6)(b),(f), Fla. Stat. (2010).

“ ‘When the language of the statute is clear and unambiguous and conveys a clear and definite meaning ... the statute must be given its plain and obvious meaning.’ ” Fla. Convalescent Ctrs. v. Somberg, 840 So.2d 998, 1000 (Fla.2003) (quoting Holly v. Auld, 450 So.2d 217, 219 (Fla.1984)). We conclude that, by relying on Ms. Bent’s verified statement to determine there were no alternatives to guardianship that would adequately protect Ms. Searle’s interests and welfare, the trial court complied with the plain language of section 744.331(6)(f). Although Ms. Searle executed numerous estate planning documents dating back to 2004, the trial court found that the allegations in Ms. Bent’s verified statement called the validity of those documents into question. Thus, under the statute, the trial court was prohibited from considering the documents as an alternative to guardianship.

We disagree with Ms. Searle’s contention that the trial court’s reliance on the verified statement “effectively invalidated her entire estate plan.” There is nothing in section 744.331(6)(f) that invalidates the challenged documents. As the trial court explained in its order:

The court is not required to determine the validity of the challenged documents at this time and renders no opinion on the truth or falsity, sufficiency or insufficiency of the allegations. In accordance with this finding of good faith and reasonable factual basis, the court may not deem the trust, the trust amendment or the durable power of attorney alternatives to the appointment of a guardian.

Moreover, the trial court is not prohibited from reviewing the continued need for a guardianship if Ms. Searle’s documents are later determined to be valid, or if alternatives to guardianship arise which will sufficiently address her needs. See § 744.462 (providing that the court shall review the continued need for a guardian if the ward’s durable power of attorney, trust, or trust amendment is determined to be valid, or if a petition is filed alleging there is an alternative to guardianship that will meet the needs of the ward).

Accordingly, we affirm.

CASANUEVA and VILLANTI, JJ., Concur.

      . To the extent Ms. Searle’s argument concerns her 2004 revocable trust and whether the trial court considered it a viable alternative to guardianship, it is clear from the record that this issue was fully litigated and considered by the trial court during the hearing on Ms. Searle’s motion for involuntary dismissal.


author: SUAREZ, J.

text:
    GULLIVER SCHOOLS, INC., a Florida corporation, and School Management Systems, Inc., a Florida corporation, Appellants, v. Patrick SNAY, Appellee.
    No. 3D13-1952.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 2013.
    Cole, Scott & Kissane and Scott A. Cole, Key West, and Kristen A. Tajak, Miami, for appellants.
    Kopelowitz Ostrow and Jonathan M. Streisfeld, Scott Weiselberg and David L. Ferguson, Fort Lauderdale, for appellee.
    Before SUAREZ, SALTER and EMAS, JJ.
   ON MOTION TO FILE BRIEFS AND APPENDICES UNDER SEAL

SUAREZ, J.

Gulliver Schools, Inc. and School Management Systems, Inc.’s Amended Motion to File Briefs and Appendices Under Seal is facially insufficient. We. therefore deny the motion without prejudice to file a motion to seal that complies with the test for sealing of court proceedings and records set forth in Barron v. Fla. Freedom Newspapers, 531 So.2d 113 (Fla.1988). See Fla. R.J. Admin. 2.420; BDO Seidman, LLP v. Banco Espirito Santo Int% Ltd., — So.3d — (Fla. 3d DCA 2009).


author: SLEET, Judge.

text:
    Ruth VARGAS, Appellant, v. CITY OF FORT MYERS, Florida, Appellee.
    No. 2D12-2485.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 2014.
    Rehearing Denied Feb. 17, 2014.

      Victor M. Arias of Arias Law Firm, P.A., Cape Coral, for Appellant.
    Mark S. Moriarty, Assistant City Attorney, Fort Myers, for Appellee.
   SLEET, Judge.

Ruth Vargas appeals the summary judgment entered in favor of the City of Fort Myers (Fort Myers) on the bases that Vargas failed to comply with section 768.28, Florida Statutes (2005), and the statute of limitations expired. We disagree. Accordingly, we reverse.

I. Background

On March 3, 2005, Vargas was injured in a traffic accident involving a Fort Myers police car. On May 13, 2005, Vargas’s attorney sent Fort Myers a letter informing it of the accident, requesting insurance information, and informing it that Vargas was represented by an attorney. On May 16, 2005, Fort Myers responded to the letter and disclosed that it was self-insured and outlined its liability limits of coverage. On March 9, 2007, Vargas provided Fort Myers with another letter in which she described the accident, her injuries, the cost of her medical bills, and a demand for the full policy limits. On September 29, 2008, Fort Myers sent a letter to Vargas in which it reiterated that it was self-insured and included its limits of coverage. Vargas followed up with another demand letter on November 17, 2008, and informed Fort Myers that she had complied with the statutory requirements set forth in section 768.28(6)(a). On November 20, 2008, Fort Myers sent a letter to Vargas acknowledging that it had received the November 17, 2008, letter and that the three-year notice period in section 768.28(6)(a) had expired.

On December 22, 2008, Vargas filed her complaint for negligence against Fort Myers and the police officer who drove the police car. On March 17, 2010, Vargas filed an amended complaint and attached the March 9, 2007, demand letter. On March 22, 2010, the trial court granted Fort Myers’ motion to dismiss with prejudice as to the officer and without prejudice as to Fort Myers and granted Vargas twenty days to file an amended complaint. On April 3, 2010, Vargas filed an amended complaint, in which she stated that she had sent notice to Fort Myers. On August 16, 2010, the trial court denied Fort Myers’ second motion to dismiss based on the running of the statute of limitations, sovereign immunity (notice) pursuant to section 768.28(6)(a), and sovereign immunity (pleadings) pursuant to section 768.28(6)(b). On December 16, 2011, Fort Myers filed a motion for summary judgment, again arguing that Vargas failed to comply with the notice requirement set forth in 768.28(6)(a). On March 23, 2012, the trial court granted Fort Myers’ motion for summary judgment on the basis that “[pjlaintiff failed to comply with Florida Statutes § 768.28” and “the Statute of Limitations expired.” This appeal ensued.

II. Analysis

This court reviews a trial court’s order on a motion for summary judgment de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126,130 (Fla.2000). “The underlying purpose of a motion for summary judgment ‘is to determine whether any genuine issues of material fact exist for resolution by the trier of fact.’ ” Coral v. Garrard Crane Serv., Inc., 62 So.3d 1270, 1273 (Fla. 2d DCA 2011) (quoting CSX Tramp., Inc. v. Pasco Cnty., 660 So.2d 757, 758 (Fla. 2d DCA 1995)). “If the record reflects the existence of any genuine issue of material fact,' or the possibility of an issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.” Christian v. Overstreet Paving Co., 679 So.2d 839, 840 (Fla. 2d DCA 1996). Courts should be cautious when granting motions for summary judgment in negligence suits. Moore v. Morris, 475 So.2d 666, 668 (Fla.1985).

According to section 768.28(6)(a):
An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except as to any claim against a municipality or the Florida Space Authority, presents such claim in writing to the Department of Financial Services, within 3 years after such claim accrues and the Department of Financial Services or the appropriate agency denies the claim in writing

The notice requirement is a condition precedent to maintaining an action. § 768.28(6)(b). “[T]he purpose of the notice requirement is to provide the State and its agencies sufficient notice of claims filed against them and time to investigate and respond to those claims.” Aitcheson v. Fla. Dep’t of Highway Safety & Motor Vehicles, 117 So.3d 854, 856 (Fla. 4th DCA 2013) (quoting Cunningham v. Fla. Dep’t of Children & Families, 782 So.2d 913, 915 (Fla. 1st DCA 2001)). The notice “must be sufficiently direct and specific to reasonably put the department on notice of the existence of the claim and demand.” LaRiviere v. S. Broward Hosp. Dist., 889 So.2d 972, 974 (Fla. 4th DCA 2004). Moreover, it must be written and “sufficiently describe[] or identify] the occurrence so that the agency may investigate it.” Aitcheson, 117 So.3d at 856 (alteration in original) (quoting LaRiviere, 889 So.2d at 974). While strict compliance with the section is required, “the form of the notice is not specified.” Id. at 856. The cases to date yield no talismanic rule as to the specificity of the notice. Here, the letter sent on March 9, 2007, described the accident, Vargas’s injuries, the amount of her medical bills, and that a demand was being made. Fort Myers was placed on adequate notice and was able to investigate the claim based on the information provided in the letter. As such, Vargas’s letter satisfied the notice requirement set forth in section 768.28(6)(a).

The trial court also erred in granting summary judgment in favor of Fort Myers on the basis that the statute of limitations expired. Vargas had four years from the date of the accident to bring an action founded in negligence. See § 95.11(3)(a), Fla. Stat. (2005). The record demonstrates that she filed her original complaint on December 22, 2008, which is well within the four-year limitation. Vargas’s subsequent amended complaints merely added the language that she had satisfied the notice requirement and dropped the police officer as a party to the action. Because the amended complaints related back to the date of the original pleading, Vargas did not file outside of the statute of limitations. See Fla. R. Civ. P. 1.190(c); see also C.H. v. Whitney, 987 So.2d 96, 99 (Fla. 5th DCA 2008) (“The relation back doctrine is to be applied liberally.”).

Because Vargas satisfied the requirements set forth in section 768.28 and because she filed her complaint within the statute of limitations, we reverse.

Reversed and remanded.

NORTHCUTT and LaROSE, JJ., Concur.

      . To the extent that the March 9, 2007, letter does not contain Vargas’s date and place of birth and social security number, providing this information is not necessary in the notice. See Williams v. Henderson, 687 So.2d 838, 839 (Fla. 2d DCA 1996).


text:
    Michael MICKLOS, Petitioner, v. STATE of Florida, Respondent.
    No. 2D12-4151.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 2014.

      Noel H. Flasterstein of Noel H. Flaster-stein, P.A., Tampa, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Respondent.
   NORTHCUTT, Judge.

Michael Micklos was charged with the improper exhibition of a firearm, a first-degree misdemeanor. See § 790.10, Fla. Stat. (2011). He moved to dismiss the charge, claiming immunity from prosecution under section 776.032, Florida Statutes (2011), commonly known as the “Stand Your Ground” law. The county court denied the motion, whereupon Mick-los appealed to the circuit court. That court determined that Micklos was attempting to appeal a nonfinal, nonap-pealable order, and it dismissed the appeal for lack of jurisdiction. Micklos now seeks our certiorari review of that ruling. We grant the petition and quash the circuit court’s dismissal order.

Our standard of review in a second-tier certiorari case such as this is whether the circuit court acting in its review capacity afforded the litigant procedural due process and applied the correct law. See Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995); City of Tampa v. City Nat’l Bank of Fla., 974 So.2d 408, 410 (Fla. 2d DCA 2007). Here, the circuit court failed to apply the correct law.

The circuit court correctly determined that the order denying Micklos’s motion to dismiss was not final and appeal-able. But it overlooked well-established case law holding that an accused who is immune from prosecution may seek to have that immunity enforced by writ of prohibition. See Mocio v. State, 98 So.3d 601, 603-04 (Fla. 2d DCA 2012). More over, the Florida Constitution precludes the dismissal of a cause because the remedy sought is improper. Art. V, § 2(a), Fla. Const. (“The supreme court shall adopt rules for the practice and procedure in all courts including the time for seeking appellate review, the administrative supervision of all courts, the transfer to the court having jurisdiction of any proceeding when the jurisdiction of another court has been improvidently invoked, and a requirement that no cause shall be dismissed because an improper remedy has been sought.”) (emphasis supplied). Accordingly, Florida Rule of Appellate Procedure 9.040(c) provides that “[i]f a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought.”

Micklos sought the wrong remedy, an appeal, and therefore he filed his notice in the lower tribunal, the county court. See Fla. R. App. P. 9.110(b). Because his proper remedy was a writ of prohibition, he should have filed a petition for the writ in the court having jurisdiction, the circuit court. See Fla. R. App. P. 9.100(b). Nevertheless, his filing in the county court was legally effective to vest the circuit court with jurisdiction. Cf. Alfonso v. Dep’t of Envtl. Regulation, 616 So.2d 44, 47 (Fla.1993) (“[A]n appellate court’s jurisdiction is invoked by a timely filing of a notice of appeal or a petition for certiorari in either the lower court that issued the order to be reviewed or the appellate court which would have jurisdiction to review the order.”); Johnson v. Citizens State Bank, 537 So.2d 96, 98 (Fla.1989) (stating that when a litigant erroneously believes he has a right to an appeal, filing a notice in the lower tribunal is sufficient to vest certiorari jurisdiction in the appellate court). And an appellate court should not dismiss a timely filed appeal if it concludes that relief could be obtained in an original proceeding. Johnson, 537 So.2d at 97-98. (citing Art. V, § 2(a), Fla. Const.; Fla. R. App. P. 9.040(c)).

Because the law was well-settled that Micklos’s immunity claim could properly be raised in a petition for a writ of prohibition, see Modo, and because our constitution prohibits the dismissal of a cause because the remedy sought is improper, see Art. V, § 2(a), the circuit court did not apply the correct law when dismissing Micklos’s appeal.

We grant the petition for certiorari and quash the order dismissing Micklos’s appeal.

VILLANTI and SLEET, JJ., Concur.


text:
    John W. MANN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-3089.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 2014.
    Rehearing Denied May 6, 2014.
    John W. Mann, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, LAGOA and LOGUE, JJ.
   SUAREZ, J.

Affirmed; See Robinson v. State, 816 So.2d 146 (Fla. 1st DCA 2002); McCraney v. Florida, 830 So.2d 262 (Fla. 5th DCA 2002).