source: Caselaw Access Project

author: PER CURIAM.

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text:
    In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES-REPORT NO. 2012-05.
    No. SC12-2031.
    Supreme Court of Florida.
    Dec. 5, 2013.
    Honorable Joseph A. Bulone, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Clear-water, FL; Honorable Jacqueline Hogan Scola, Past Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases; and Bart Schneider, Senior Attorney, Office of State Courts Administrator, Tallahassee, FL.
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) proposes several new standard criminal jury instructions and amendments to several existing standard criminal jury instructions. We have jurisdiction. See art. V, § 2(a), Fla. Const. We authorize the new and amended instructions for publication and use, except as explained below.

The Committee asks the Court to authorize for publication and use new criminal jury instructions 8.7(d) (Aggravated Stalking (Defendant previously sentenced for sex offense and prohibited from contacting victim)); 8.24 (Violation of Stalking Injunction); 14.9 (Exploitation of an Elderly or Disabled Person); 21.14 (False Information to Law Enforcement Investigating a Missing Person 16 Years of Age or Younger); and 29.18 (Failure to Appear). The Committee also proposes amending existing criminal jury instructions 2.4 (Evidence of Other Crimes, Wrongs, or Acts (“Williams Rule”)); 3.8(a) (Evidence of Other Crimes, Wrongs, or Acts (“Williams Rule”)); 8.2 (Aggravated Assault); 8.6 (Stalking); 8.7(a) (Aggravated Stalking); 8.7(b) (Aggravated Stalking (Injunction Entered)); 8.12 (Aggravated Assault on Law Enforcement Officer or Firefighter); 8.15 (Aggravated Assault on an Elderly Person); 10.6 (Discharging a Firearm in Public); 11.1 (Sexual Battery— Victim Less Than 12 Years of Age); 16.12 (Leaving Child Unattended or Unsupervised in Motor Vehicle); 21.8 (Tampering With or Fabricating Physical Evidence); and 28.5(a) (Racing on a Highway). Finally, two of the proposed instructions are currently in existence, but the Committee is recommending renumbering them as follows: 8.7(c) (Aggravated Stalking (Victim Under 16)) (renumbered from existing instruction 8.8); 21.15 (False Information to Law Enforcement) (renumbered from existing instruction 18.3).

Before filing its report with the Court, the Committee published these proposals for comment, except for instruction 21.8 (Tampering With or Fabricating Physical Evidence), because that proposal involved only minor changes. Two comments were received by the Committee, and the Committee made changes to the proposals in response to one of the comments. The Court did not publish the proposals after they were filed.

in the Committee’s proposal for instruction 11.1 (Sexual Battery — Victim Less Than 12 Years of Age), the Committee proposes language stating that the victim’s consent, the victim’s lack of chastity, and mistakes about the victim’s age are not defenses. However, no legal authority is cited to support those statements. Moreover, the Committee proposes adding the crime of “battery” to the list of category two lesser-included offenses, even though “battery” already appears in the list of category one lesser-included offenses. Thus, as proposed, “battery” would appear as both a category one and as a category two lesser-included offense. Given these two issues, we decline to authorize instruction 11.1 for publication and use and instead refer this instruction back to the Committee for further consideration.

Next, in the Committee’s proposal for new instruction 8.7(d) (Aggravated Stalking), element one of the offense reads as follows:

(Defendant) was sentenced for [sexual battery] [lewd or lascivious [battery] [molestation] [conduct] [exhibition] [violatiny Fla. Stat. 847.0135(5) ].

The statute on which this part of the instruction is based does not explicitly refer to “lewd or lascivious” behavior. Instead, the statute simply refers to section 800.04, Florida Statutes, which covers crimes committed in the presence of a minor under the age of 16. See § 784.048(7), Fla. Stat. (2012). The proposed jury instruction does not state that the crime must have been committed in the presence of a person under 16. Thus, we amend the proposed language in element one of this instruction to read as follows:

(Defendant) was sentenced for [sexual battery] [violating Fla. Stat. 800.04] [violating Fla. Stat. 847.0135(5) ].

Accordingly, we hereby authorize for publication and use the instructions as they appear in the appendix to this opinion. In authorizing the publication and use of these instructions, we express no opinion on their correctness and remind all interested parties that this authorization forecloses neither requesting an additional or alternative instruction nor contesting the legal correctness of the instructions. We further caution all interested parties that any notes and comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. New language is indicated by underlining and deleted language is indicated by struck-through type. 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

2.4 EVIDENCE OF OTHER CRIMES, WRONGS, OR ACTS -WILLIAMS RULE”

§ 90.404(2)(a), (2)(b), (2)(c), and (2)(d)2, Fla. Stat.

To be given at the time the evidence is admitted, if requested.

The evidence you are about to receive concerning evidence of other crimes, wrongs, or acts allegedly committed by the defendant will be considered by you for the limited purpose of [proving [motive] [opportunity] [intent] [preparation] [plan] [knowledge] [identity] [the absence of mistake or accident]] on-the part of -the defendant [ (other relevant factor) ] [corroborating the testimony of (victim) ]* and you shall consider it only as it relates to [that] [those] issue[s].

However, the defendant is not on trial for a crime, wrong, or act that is not included in the [information] [indictment].

Comments

* Evidence that is admitted to corroborate the testimony of a victim is allowed only in child molestation and sexual offense cases. See section 90.404(2)(b), Fla. Stat., effective July 1, 2001, in child molestation eases. See 90.404(2)(c) Fla. Stat., effective July 1, 2011, for cases involving sexual offenses.

This instruction was adopted in 1981 and was amended in 2000 [765 So.2d 692], and 2007 [965 So.2d 811], [g€Q7-325,-Corrected Opinion, August 30, 2007] and 2013.

3.8(a) EVIDENCE OF OTHER CRIMES, WRONGS, OR ACTS “WILLIAMS RULE”

§ 90.404(2)(a), (2)(b), (2)(e), and (2)(d)2, Fla. Stat.

To be given at the dose of evidence, if applicable.

The evidence which has been admitted to show other crimes, wrongs, or acts allegedly committed by the defendant will be considered by you only as that evidence relates to [proof of [motive] [opportunity] [intent] [preparation] [plan] [knowledge] [identity] [the absence of mistake or accident]] on the part of the defendant] [ (other relevant fact) ] [corroboration of the testimony of (victim) ]*.

However, the defendant cannot be convicted for a crime, wrong, or act that is not included in the [information] [indictment].

Comments

* Evidence that is admitted to corroborate the testimony of a victim is allowed only in child molestation and sexual offense cases. See section 90.404(2)(b), Fla. Stat., effective July 1, 2001, in child molestation cases. See 90.404(2)(c) Fla. Stat., effective July 1, 2011, for cases involving sexual offenses.

This instruction was adopted in 1981 and was amended in 2000 [765 So.2d 692], and 2007 [965 So.2d 811], [SC07-325, Corrected Opinion, August-3^ 2007]-and-2Q-14 2012 T87 So.3d 679], and 2013.

8.2 AGGRAVATED ASSAULT

§ 784.021, Fla. Stat.

To prove the crime of Aggravated Assault, the State must prove the following four elements beyond a reasonable doubt. The first three elements define assault.

1. (Defendant) intentionally and unlawfully threatened, either by word or act, to do violence to (victim).

2. At the time, (defendant) appeared to have the ability to carry out the threat.

3. The act of (defendant) created in the mind of (victim) a well-founded fear that the violence was about to take place.

Give la or lfb as applicable. If kb is alleged, give the elements of the felony charged.

4. a. [The assault was made with a deadly weapon.]

b. [The assault was made with a fully-formed, conscious intent to commit (crimefelony charged) upon (victim).]

(If 4b — is—alleged,—define—the—crime charged-

Give if applicable. McClain v. State, 383 So.2d 1146 (Fla. 4th DCA 1980); Smithson v. State, 689 So.2d 1226 (Fla. 5th DCA 1997); Gilbert v. State, 347 So.2d 1087 (Fla. 3rd DCA 1977).

If the circumstances were such as to ordinarily induce a well-founded fear in the mind of a reasonable person, then the victim may be found to have been in fear, and actual fear on the part of the actual victim need not be shown.

Definition. Give if la alleged.

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

Give if ka alleged.

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

Lesser Included Offenses

AGGRAVATED ASSAULT —784.021 CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.

Assault 784-.Q1-1"

Improper exhibition of a dangerous weapon or firearm, if Fla. Stat. 784.021 (lYa) is charged 790.10 10.5

Assault 784.011 8.1

Attempt 777.04(1) 5.1

Improper Exhibition of dangerous weapons or ■firearms 796A0 m-5

Discharging firearms in public 790.15 10.6

Comment

This instruction was approved in 1981 and amended in 2013.

8.6 STALKING

§ 784.048(2), Fla. Stat.

To prove the crime of Stalking, the State must prove the following element beyond a reasonable doubt:

(Defendant) willfully, maliciously, and repeatedly [followed] [harassed] [or] [cyberstalked] (victim).

Definitions.

§ 784.048(l)(a), Fla. Stat.

“Harass” means to engage in a course of conduct directed at a specific person which that causes substantial emotional distress to that in such person and serves no legitimate purpose.

§ 784.048(l)(b), Fla. Stat.

“Course of conduct” means a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose. The term does not include constitutionally protected activity such as picketing or other organized protests.

Patterson v. State, 512 So.2d 1109 (Fla. 1st DCA 1987).

“Willfully” means knowingly, intentionally and purposely.

Give if applicable. § 78í.0j8(l)(d), Fla. Stat.

“Cyberstalk” means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.

Lesser Included Offenses

BS ip'i «* Pit III «slnfe iaUsK ísiidísí; ¡kSuüik ¡üisiJSs i^inTilfr.ivaiiiipj.i&mfB -spuiir iiraiijj

CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.

None

Attempt 777.04(1) 5.1

Comment

This instruction was approved in 1995 [657 So.2d 1152] and amended in 2007 [953 So.2d 495] to include cyberstalking and 2013.

8.7(a) AGGRAVATED STALKING

§ 784.048(3), Fla. Stat.

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

1. (Defendant) willfully, maliciously, and repeatedly [followed] [harassed] [or] [cyberstalked] (victim)?; and

2. (Defendant) made a credible threat with the intent to place (victim), in reasonable-fear-of-death or bodily injury — to—[himself]—[herself] [ (name-of — the subject - of- threat)-]-

Give if applicable.

(Name of subject- of-threat) was (victim)’s-[child] [-sibIing][spouse][parent] [dependent]?

Definitions.

§ 78U.0Jp8(l)(a), Fla. Stat.

“Harass” means to engage in a course of conduct directed at a specific person which that causes substantial emotional distress to that in such person and serves no legitimate purpose.

§ 78j.M8(l)(b), Fla. Stat.

“Course of conduct” means a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose. The term does not include constitutionally protected activity such as picketing or other organized protests.

Patterson v. State, 512 So.2d 1109 (Fla. 1st DCA 1987).

“Willfully” means knowingly, intentionally and purposely.

Give if applicable. § 784..04-8(l)(d), Fla. Stat.

“Cyberstalk” means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.

§ 78UM8(l)(c), Fla. Stat.

“Credible threat” means a verbal or nonverbal threat, or a combination of the two, including threats delivered by electronic communication or implied by a pattern of conduct, which places the person who is the target of the threat in reasonable fear for his or her safety or the safety of his or her family members or individuals closely associated with the person, and which is made with the apparent ability to carry out the threat to cause such harm, made with the intent to -cause — the person who is -the target-of the threat to reasonably — fear for — his-or her safety. — The-threat-mnst be against the life of, or a threat — to cause bodily-injury to, a person.

It is not necessary for the State to prove that the person making the threat had the actual intent to carry out the threat.

Give if applicable.

The present incarceration of the person making the threat is not a bar to prosecution.

Lesser Included Offenses

sig-sgrTsrsTsiTiirTBSiBr ¡■¡if ifi-ilil 1 :!|É iiÉli-, ípjfípjp

CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.

Stalking 784.048(2) 8.6

Attempt 777.04(1) 5.1

Assault 784.011 8.1

Improper exhibition of dangerous weapon 790.10 10.5

Comment

This instruction was approved in 1995 [657 So.2d 1152] and amended in 2007 [953 So.2d 495], to incorporate cyber-stalking and 2013 to incorporate the change in law effective October 1, 2012,

8.7(b) AGGRAVATED STALKING

(Injunction Entered)

§ 784.048(4), Fla. Stat.

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

1. (Defendant) knowingly, willfully, maliciously, and repeatedly [followed] [harassed] [or] [cyber-stalked] (victim).

Give 2a or 2b as applicable.

2. At the time of the [following] [harassing] [cyberstalking],

a. an injunction for protection against [repeat] [sexual] [dating] [domestic] violence had been entered against (defendant) for the benefit of (victim).

b. a court had imposed a prohibition of conduct on (defendant) toward (victim) or (victim’s property).

3. (Defendant) knew that the [injunction] [court-imposed prohibition of conduct] had been entered against [him][her].

Definitions.

§ 78Jj.omi)(a), Fla. Stat.

“Harass” means to engage in a course of conduct directed at a specific person which that causes substantial emotional distress to that in such person and serves no legitimate purpose.

§ 78bM&(l)(b), Fla. Stat.

“Course of conduct” means a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose. The term does not include constitutionally protected activity such as picketing or other organized protests.

Patterson v. State, 512 So.2d 1109 (Fla. 1st DCA 1987).

“Willfully” means knowingly, intentionally and purposely.

Give if applicable. § 78kM8(l)(d), Fla. Stat.

“Cyberstalk” means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.

“Maliciously” means wrongfully, intentionally, and without legal justification or excuse.

Lesser Included Offenses

ijai (fnj uhcüübHEhíeréd) -#w4ií78>4g;4)^8^4]|i¡:W

CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.

Stalking 784.048(2) 8.6

Attempt 777.04(1) 5.1

Violation of injunction for protection against domestic violence 741.31(4) 8.16

Violation of injunction for protection against repeat, sexual, or dating violence 784.047 8.19

Violation of injunction for protection against stalking or cvherstalkine 784.0487(41 8.24

Comments

See Seese v. State, 955 So.2d 1145 (Fla. 4th DCA 2007), for the definition of maliciously.

This instruction was adopted in 1995 [657 So.2d 1152] and was amended in 2007 [953 So.2d 495], and 2008 [995 So.2d 476], and 2013.

8.88.7(c) AGGRAVATED STALKING

(Victim under 16 years of age)

§ 784.048(5), Fla. Stat.

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

1. (Defendant) willfully, maliciously, and repeatedly [followed] [harassed] [or] [cyberstalked] (victim); and,

2. At the time of (defendant’s) actions, (victim) was under 16 years of age.

Definitions.

§ 78íM8(l)(a), Fla. Stat.

“Harass” means to engage in a course of conduct directed at a specific person which that causes substantial emotional distress to that in such person and serves no legitimate purpose.

§ 78hM8(l)(b), Fla. Stat.

“Course of conduct” means a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose. The term does not include constitutionally protected activity such as picketing or other organized protests.

Patterson v. State, 512 So.2d 1109 (Fla. 1st DCA 1987).

“Willfully” means knowingly, intentionally and purposely.

Give if applicable. § 78U-0U8(l)(d), Fla. Stat.

“Cyberstalk” means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.

Lesser Included Offenses

sítfMjire&’li Asfiy , ft*®™.■¡is,!wi «mb miM "spa, wrak sawuBOT fiteli pjp E|i|i f¡ls:i|,'®l»'¥iíiii

CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.

Stalking 784.048(2) 8.6

Attempt 777.04(1) 5.1

Violation of injunction for protection against domestic violence 741.31(4) 8.18

Violation of injunction for protection against repeat, sexual, or dating violence 784.047 8.19

Violation of injunction for protection against stalking or cvberslalking 784.0487(4) 8.24

Comment

This instruction is based on-the-text-of section-784.048(5)j ■ -Florida ■ Statutes (1997), and generally patterned after-the-standard instructions — on—stalking ■■ -and aggravated stalking-.-

This instruction was adopted in 2000 [765 So.2d 692] and amended in 2007 [958 So.2d 4951 to incorporate cyber-stalking, and 2013.

8.7(d) AGGRAVATED STALKING

(Defendant previously sentenced for sex offense

and was prohibited from contacting victim)

§ 784.048(7), Fla. Stat.

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

1. (Defendant) was sentenced for [sexual battery] [violating Fla. Stat. 800.04] [violating Fla. Stat. 847.0135(5) ].

2. As part of that sentencing, (defendant) was ordered to have no contact with (victim).

3. After the sentencing, (defendant) willfully, maliciously, and repeatedly [followed] [harassed] [or] [cyberstalked] (victim).

Definitions.

§ 78hM8(l)(a), Fla. Stat.

“Harass” means to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.

§ 78kM8(l)(b), Fla. Stat.

“Course of conduct” means a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose. The term does not include constitutionally protected activity such as picketing or other organized protests.

Patterson v. State, 512 So.2d 1109 (Fla. 1st DCA 1987).

“Willfully” means knowingly, intentionally and purposely.

Give if applicable. § 781p.01p8(l)(d), Fla. Stat.

“Cyberstalk” means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.

Lesser Included Offenses

Comment

This instruction was adopted in 2013.

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

§ 784.07(2)(c), Fla. Stat.

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

1. (Defendant) intentionally and unlawfully threatened, either by word or act, to do violence to (victim).

2. At the time, (defendant) appeared to have the ability to carry out the threat.

3. The act of (defendant) created in the mind of (victim) a well-founded fear that the violence was about to take place.

Give ía or Jpb as applicable. If kb is alleged, give the elements of the felony charged.

4. a. The assault was made with a deadly weapon.

b. The assault was made with a fully-formed, conscious intent to commit (crime felony charged) upon (victim).

If fb — is—alleged,—define—the—crime charged.

5. (Victim) was at the time a [law enforcement officer] [firefighter] [emergency medical care provider] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [security officer employed by the board of trustees of a community college] [federal law enforcement officer].

6. (Defendant) knew (victim) was a [law enforcement officer] [firefighter] [emergency medical care provider] [traffic accident investigation officer] [traffic infraction enforcement officer] [parking enforcement specialist] [security officer employed by the board of trustees of a community college] [federal law enforcement officer].

7. At the time of the assault, (victim) was engaged in the lawful performance of [his] [her] duties.

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

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

Give if applicable. McClain v. State, 383 So.2d 1146 (Fla. 4th DCA 1980); Smithson v. State, 689 So.2d 1226 (Fla. 5th DCA 1997); Gilbert v. State, 347 So.2d 1087 (Fla. 3rd DCA 1977).

If the circumstances were such as to ordinarily induce a well-founded fear in the mind of a reasonable person, then the victim may be found to have been in fear, and actual fear on the part of the actual victim need not be shown.

Definition. Give if fa alleged.

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

Give if fa alleged.

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

Lesser Included Offenses

784.07(2X*:)

CATEGORY ONE CATEGORY TWO FLA. STAT INS. NO.

Aggravated assault 784.021 8.2

Assault on law ©a enforcement officer 784.07(2)(a) 8.10

Improper exhibition of a dangerous weapon or firearm, if 790,10 Fla. Stat. 784.021 flYa) is charged 10.5

Assault 784.011 8.1

Attempt 777.04(1) 5.1

Improper-exhibition-of dangerous weapons--©f 790-.-10 firearms 40r§

Discharging firearms in public_ 79045 10.6

Comment

This instruction was approved in 1992 [603 So.2d 1175], and amended in 1995 [657 So.2d 1152], and 2007 [962 So.2d 310], and 2008 [994 So.2d 1038], and 2013.

8.15 AGGRAVATED ASSAULT ON PERSON 65 YEARS OF AGE OR OLDER

§ 784.08(2)(b), Fla. Stat.

To prove the crime of Aggravated Assault on a Person 65 Years of Age or Older, the State must prove the following five elements beyond a reasonable doubt. The first three elements define assault.

1. (Defendant) intentionally and unlawfully threatened, either by word or act, to do violence to (victim).

2. At the time, (defendant) appeared to have the ability to carry out the threat.

3. The act of (defendant) created in the mind of (victim) a well-founded fear that the violence was about to take place.

Give ka. or kb. If kb is alleged, give the elements of the felony charged.

4. a. [The assault was made with a deadly weapon.)

b. [The assault was made with a fully-formed conscious intent to commit (mmefelony charged) upon (victim).]

If kb — is—alleged-,—define—the—eñme charged?

5. (Victim) was at the time 65 years of age or older.

Give if applicable. McClain v. State, 383 So.2d 1146 (Fla. 4th DCA 1980); Smithson v. State, 689 So.2d 1226 (Fla. 5th DCA 1997); Gilbert v. State, 347 So.2d 1087 (Fla. 3d DCA 1977).

If the circumstances were such as to ordinarily induce a well-founded fear in the mind of a reasonable person, then the victim may be found to have been in fear, and actual fear on the part of the actual victim need not be shown.

Definition. Give if Ua alleged.

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

Give iffa alleged.

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

Lesser Included Offenses

[AGGRAVATED ASSAULT ontersonííís years-of age or =OLDER' — 784.08(2)(b)

CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.

Aggravated assault 784.021 8.2

Assault on person 65 years of age or older 784.08(2Xd) 8.17

Improper exhibition of a dangerous weapon or firearm, if Fla. Stat. 784.02im(a] is charged 790.10 10.5

Assault 784.011 8.1

Attempt 777.04(1) 5.1

improper-exhibition of dangerous weapons or firearms 7-9040 444

Discharging firearms in public 790.15 10.6

Comment

This instruction was adopted in 1997 [697 So.2d 84] and amended in 2013.

8.24 VIOLATION OF INJUNCTION FOR PROTECTION AGAINST [STALKING] [CYBERSTALKING]

§ 784.0487(4), Fla. Stat.

To prove the crime of Violation of an Injunction for Protection Against [Stalking] [Cyberstalking], the State must prove the following two elements beyond a reasonable doubt:

1. An injunction for protection against [stalking] [cyberstalking] was issued by a court against (defendant).

2. (Defendant) willfully violated the injunction by:

Give as alleged.

a. going to, or being within 500 feet of, the petitioner’s residence, school, place of employment, or a specified place frequented regularly by the petitioner and any named family members or individuals closely associated with the petitioner.

b. committing an act of stalking against the petitioner.

c. committing any other violation of the injunction through an intentional unlawful threat, word, or act to do violence to the petitioner.

d. telephoning, contacting, or otherwise communicating with the petitioner, directly or indirectly, unless the injunction specifically allows indirect contact through a third party.

e. knowingly and intentionally coming within 100 feet of the petitioner’s motor vehicle, whether or not that vehicle is occupied.

f. destroying the petitioner’s personal property, including the petitioner’s motor vehicle.

g. refusing to surrender firearms or ammunition if ordered to do so by the court.

Definition.

Patterson v. State, 512 So.2d 1109 (Fla. 1st DCA 1987).

“Willfully” means knowingly, inten-

tionally and purposely.

Lesser Included Offenses

Comment

This instruction was adopted in 2013.

10.6 DISCHARGING A FIREARM [IN PUBLIC] [ON RESIDENTIAL PROPERTY]

§ 790.15, Fla. Stat.

To prove the crime of Discharging a Firearm [in Public] [on Residential Property], the State must prove the following element beyond a reasonable doubt:

Give a, b, or c, and/or d as applicable.

a. [ (Defendant) knowingly discharged a firearm in a public place.]

b. [ (Defendant) knowingly discharged a firearm [on] [over] the right of way of a paved public road, highway, or street.]

c. [ (Defendant) knowingly discharged a firearm over an occupied premises.

[the-r-ight of way of- a-paved-public road].]

[the right of way of a highway].]

[the right of way of a street].]

[occupied premises].]

d.[ (Defendant) [recklessly] [negligently] discharged a firearm outdoors on property [used primarily as the site of a dwelling] [zoned exclusively for residential use].]

Definitions

A “public place” is any place intended or designed to be frequented or resorted to by the public.

“Knowingly” means with full knowledge and intentionally.

“Recklessly” means with a conscious and intentional indifference to consequences.

“Negligently” means failing to use reasonable care under the circumstances.

Fla. Stat. § 810.011(2)

“Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.

Fla. Stat. § 790.001(6)

A “firearm” is legally defined as (adapt from § 790.001(6), Fla.Stat., as required by-tfae-allegations-)- is any weapon including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive [including any machine gun or any destructive device]. [The term “firearm” does not include an antique firearm unless the antique firearm is used in the commission of a crime.]

Fla. Stat. § 790.001(1)

[“Antique firearm” means any firearm manufactured in or before 1918 (including any matchlock, flintlock, percussion cap, or similar early type of ignition system) or replica thereof, whether actually manufactured before or after the year 1918, and also any firearm using fixed ammunition manufactured in or before 1918, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade.]

Fla. Stat. § 790.001(4.)

[“Destructive device” means any bomb, grenade, mine, rocket, missile, pi-pebomb, or similar device containing an explosive, incendiary, or poison gas and includes any frangible container filled with an explosive, incendiary, explosive gas, or expanding gas, which is designed or so constructed as to explode by such filler and is capable of causing bodily harm or property damage; any combination of parts either designed or intended for use in converting any device into a destructive device and from which a destructive device may be readily assembled; any device declared a destructive device by the Bureau of Alcohol, Tobacco, and Firearms; any type of weapon which will, is designed to, or may readily be converted to expel a projectile by the action of any explosive and which has a barrel with a bore of one-half inch or more in diameter; and ammunition for such destructive devices, but not including shotgun shells or any other ammunition designed for use in a firearm other than a destructive device.

“Destructive device” does not include:

(a) A device which is not designed, redesigned, used, or intended for use as a weapon;

(b) Any device, although originally designed as a weapon, which is redesigned so that it may be used solely as a signaling, line-throwing, safety, or similar device;

(c) Any shotgun other than a short-barreled shotgun; or

(d) Any nonautomatic rifle (other than a short-barreled rifle) generally recognized or particularly suitable for use for the hunting of big game.]

Affirmative Defense. See § 790.15(1), Fla. Stat.

The statute and case law are silent as to 1) which party bears the burden of persuasion of the affirmative defense and 2) the standard for the burden of persuasion. Under the common law, defendants had both the burden of production and the burden of persuasion on an affirmative defense by a preponderance of the evi-denee.

The Florida Supreme Court has often decided, however, that once a defendant meets the burden of production on an affirmative defense, the burden of persuasion is on the State to disprove the affirmative defense beyond a reasonable doubt (e.g., self-defense and consent to enter in a burglary prosecution). In the absence of case law, trial judges must resolve the issue via a special instruction. See the opinions in Dixon v. United States, 548 U.S. 1, 126 S.Ct. 2437, 165 L.Ed.2d 299 (2006), for further guidance.

It is a defense to this charge the crime of Discharging a Firearm [in Public] [on Residential Property] if feat the defendant was [lawfully defending life or property],-©? [performing official duties requiring the discharge of a firearm] [discharging a firearm on public roads or property expressly approved for hunting by the Fish and Wildlife Conservation Commission or Division of Forestry].

If burden of persuasion is on the defendant:

If you find that defendant proved ( insert appropriate burden of persuasion) that [he][she] was [lawfully defending life or property] [performing official duties requiring the discharge of a firearm] [discharging a firearm on public roads or property expressly approved for hunting by the Fish and Wildlife Conservation Commission or Division of Forestry], you should find [him][her] not guilty. If the defendant did not prove (insert appropriate burden of persuasion) that [he][she] was [lawfully defending life or property] [performing official duties requiring the discharge of a firearm] [discharging a firearm on public roads or property expressly approved for hunting by the Fish and Wildlife Conservation Commission or Division of Forestry], you should find [him][her] guilty if all the elements of the charge have been proven beyond a reasonable doubt.

If burden of persuasion is on the State:

If you find that the State proved (insert appropriate burden of persuasion) that the defendant was not [lawfully defending life or property] [performing official duties requiring the discharge of a firearm] [discharging a firearm on public roads or property expressly approved for hunting by the Fish and Wildlife Conservation Commission or Division of Forestry], you should find [him][her] guilty, if all of the elements of the charge have been proven beyond a reasonable doubt. However, if you are not convinced (inseH appropriate burden of persuasion) that the defendant was [lawfully defending life or property] [performing official duties requiring the discharge of a firearm] [discharging a firearm on public roads or property expressly approved for hunting by the Fish and Wildlife Conservation Commission or Division of Forestry], you should find [him][her] not guilty.

See — applieable—defenses—specified—m §-7-90S¡5, Fla,Stai.-

Lesser Included Offenses

ION RESIDENTIAL PROPERTY! — 790.15 ; :

CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.

None

Attempt 777.04(1) 5.1

Comment

This instruction was adopted in 1981 and was amended in 1989 and 2013.

14.9 EXPLOITATION OF [AN ELDERLY PERSON] [A DISABLED ADULT]

§ 825.103, Fla. Stat.

To prove the crime of Exploitation of [an Elderly Person] [Disabled Adult], the State must prove the following four elements beyond a reasonable doubt:

Give as applicable.

Fla. Stat. § 825.103(l)(a).

1. (Victim) was [an elderly person] [a disabled adult].

2. (Defendant) knowingly used deception or intimidation to [obtain or use] [endeavor to obtain or use] (victim’s) [funds] [assets] [property],

3. (Defendant) did so with the intent to

Give as applicable.

a. temporarily or permanently deprive (victim) of the use, benefit, or possession of [his][her] [funds] [assets] [property];

b. benefit someone other than (victim).

4. At the time, (defendant) [stood in a position of trust and confidence] [had a business relationship] with (victim).

Fla. Stat. § 825.10S(l)(b).

1. (Victim) was [an elderly person] [a disabled adult].

2. (Defendant) [obtained or used] [endeavored to obtain or use] [conspired with another to obtain or use] (victim’s) [funds] [assets] [property].

3. (Defendant) did so with the intent to

Give as applicable.

a. temporarily or permanently deprive (victim) of the use, benefit, or possession of [his][her] [funds] [assets] [property];

b. benefit someone other than (victim).

4. At the time, (defendant) knew or reasonably should have known that (victim) lacked the capacity to consent.

Fla. Stat. § 825.103(l)(c).

1. (Victim) was [an elderly person] [a disabled adult].

2. (Defendant) was (victim’s) [guardian] [agent under a power of attorney].

3. (Defendant) breached a fiduciary duty to (victim).

4. As a result, there was an unauthorized [appropriation] [sale] [transfer] of (victim’s) property.

Give as ayplicable.

If you find (defendant) guilty of Exploitation of [an Elderly Person] [a Disabled Adult], you must then determine whether the State has proven beyond a reasonable doubt that:

a. the [funds] [assets] [property] involved in the exploitation of the [elderly person] [disabled adult] [is][are] valued at $100,000 or more;

b. the [funds] [assets] [property] involved in the exploitation of the [elderly person] [disabled adult] [is][are] valued at $20,000 or more, but less than $100,000;

c. the [funds] [assets] [property] involved in the exploitation of the [elderly person] [disabled adult] [is] [are] valued at less than $20,-000.

Definitions. Give as applicable.

Fla. Stat. § 825.101(1).

“Business relationship” means a relationship between two or more individuals or entities where there exists an oral or written contract or agreement for goods or services.

Fla. Stat. § 825.101(3).

“Deception” means:

a. Misrepresenting or concealing a material fact relating to:

1. Services rendered, disposition of property, or use of property, when such services or property are intended to benefit [an elderly person] [disabled adult];

2. Terms of a contract or agreement entered into with [an elderly person] [disabled adult]; or

3. An existing or preexisting condition of any property involved in a contract or agreement entered into with [an elderly person] [disabled adult]; or

b. Using any misrepresentation, false pretense, or false promise in order to induce, encourage, or solicit [an elderly person[ [disabled adult] to enter into a contract or agreement.

Fla. Stat. § 825.101(F).

“Disabled adult” means a person 18 years of age or older who suffers from a condition of physical or mental incapacitation due to a developmental disability, organic brain damage, or mental illness, or who has one or more physical or mental limitations that restrict the person^ ability to perform the normal activities of daily living.

Fla. Stat. § 825.101(5).

“Elderly person” means a person 60 years of age or older who is suffering from the infirmities of aging as manifested by advanced age or organic brain damage, or other physical, mental, or emotional dysfunctioning, to the extent that the ability of the person to provide adequately for the person’s own care or protection is impaired.

Fla. Stat. § 825.101(6).

“Endeavor” means to attempt or try.

Fla. Stat. § 825.101(8).

“Intimidation” means the communication by word or act to [an elderly person] [disabled adult] that the [elderly person] [disabled adult] will be deprived of food, nutrition, clothing, shelter, supervision, medicine, medical services, money, or financial support or will suffer physical violence.

Fla. Stat. § 825.101(9).

“Lacks capacity to consent” means an impairment by reason of mental illness, developmental disability, organic brain disorder, physical illness or disability, chronic use of drugs, chronic intoxication, short-term memory loss, or other cause, that causes [an elderly person] [disabled adult] to lack sufficient understanding or capacity to make or communicate reasonable decisions concerning the [elderly person’s] [disabled adult’s] person or property.

Fla. Stat. § 825.101(10).

“Obtains or uses” means any manner of:

a. Taking or exercising control over property; or

b. Making any use, disposition, or transfer of property.

Fla. Stat. § 825.101(11).

“Position of trust and confidence” with respect to [an elderly person] [a disabled adult] means the position of a person who:

a. Is a parent, spouse, adult child, or other relative by blood or marriage of the [elderly person] [disabled adult];

b. Is a joint tenant or tenant in common with the [elderly person] [disabled adult];

c. Has a legal or fiduciary relationship with the [elderly person] [disabled adult], including, but not limited to, a court-appointed or voluntary guardian, trustee, attorney, or conservator;

d. Is a caregiver of the [elderly person] [disabled adult].

e. Is any other person who has been entrusted with or has assumed responsibility for the use or management of the [elderly person’s] [disabled adult’s] [funds] [assets] [property],

Fla. Stat. § 825.101(2).

“Caregiver” means a person who has been entrusted with or has assumed responsibility for the care or the property of [an elderly person] [disabled adult]. “Caregiver” includes, but is not limited to, relatives, court-appointed or voluntary guardians, adult household members, neighbors, health care providers, and employees and volunteers of facilities.

Fla. Stat. § 825.101(7).

“Facility” means any location providing day or residential care or treatment for elderly persons or disabled adults. The term “facility” may include, but is not limited to, any hospital, training center, state institution, nursing home, assisted living facility, adult family-care home, adult day care center, group home, mental health treatment center, or continuing care community.

Fla. Stat. § 825.101(12).

“Property” means anything of value and includes:

a. Real property, including things growing on, affixed to, and found in land.

b. Tangible or intangible personal property, including rights, privileges, interests, and claims.

c. Services.

Fla. Stat. § 825.101(13).

“Services” means anything of value resulting from a person’s physical or mental labor or skill, or from the use, possession, or presence of property, and includes:

a. Repairs or improvements to property.

b. Professional services.

c. Private, public, or governmental communication, transportation, power, water, or sanitation services.

d. Lodging accommodations.

e. Admissions to places of exhibition or entertainment.

Fla. Stat. § 825.101(14-).

“Value” means value determined according to any of the following:

1. The market value of the property at the time and place of the offense or, if the market value cannot be satisfactorily ascertained, the cost of replacing the property within a reasonable time after the offense.

2. In the case of a written instrument such as a check, draft, or promissory note, which does not have a readily ascertainable market value, the value is the amount due or collectible. The value of any other instrument that creates, releases, discharges, or otherwise affects any valuable legal right, privilege, or obligation is the greatest amount of economic loss that the owner of the instrument might reasonably suffer by the loss of the instrument.

3. The value of a trade secret that does not have a readily ascertainable market value is any reasonable value representing the damage to the owner suffered by reason of losing advantage over those who do not know of or use the trade secret.

Fla. Stat. S 825.101(U)(b).

If the value of the property cannot be ascertained, the trier of fact may find the value to be not less than a certain amount; if no such minimum value can be ascertained, the value is an amount less than $100.

Fla Stat. § 825.101(W(c).

Amounts of value of separate properties involved in exploitation committed pursuant to one scheme or course of conduct, whether the exploitation involves the same person or several persons, may be aggregated in determining the degree of the offense.

Lesser Included Offense

EXPLOITATION OF IAN ELDERLY: PERSON! = f A -DISABLED- AD ULT:1: rr — • :825:103:?

CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.

Petit theft - second degree, if 6 825.103(1 Ya~> or(b3is charged 812.014(3 Yal 14.1

Grand Theft, if § 825.103(1 Yal or (b~) is charged 812.014(2Yal1. 14.1

Grand Theft, if S 825.103(1 Yal or (bl is charged 812.014(2Yb'll. 14.1

Grand Theft, if § 825.103(1 Yal or (hi is charged 812.014(2Ycl 14.1

Petit Theft, if S 825.103(1 Ya! or (V) is charged 812.014(2Yel 14.1

Comment

This instruction was adopted in 2013.

16.12 LEAVING A CHILD UNATTENDED OR UNSUPERVISED IN A MOTOR VEHICLE

§ 316.6135, Fla. Stat.

To prove the crime of Leaving a Child Unattended or Unsupervised in a Motor Vehicle, the State must prove the following [three] [four] elements beyond a reasonable doubt:

1. (Defendant) was a [parent of] [legal guardian for] [person responsible for] (victim).

2. (Victim) was less younger than 6 years of age.

Give 3a or 3b as applicable.

3. (Defendant) left (victim) unattended or unsupervised in a motor vehicle

a. for more-than a period in excess of 15 minutes.

Note to Judge: Give 3b, if applicable, only when the crime charged is a violation ofF.S. 316.6135(4.).

b. for any period of time if while [the motor of the vehicle was running] [the health of the victim child was in danger] [the child appeared to be in distress].

Give if applicable crime charged is a violation of Fla. Stat. § 316.6135(4)

4. In so doing, (defendant) caused [great bodily harm] [a permanent disability] [permanent disfigurement] was caused to (victim).

Definition. Fla. Stat. § 316.003(21).

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

Lesser Included Offenses

Comment

This instruction was adopted in 2009 [3 So.3d 1172] and amended in 2013.

21.8 TAMPERING WITH OR FABRICATING PHYSICAL EVIDENCE

918.13 Fla. Stat. w

To prove the crime of [Tampering with] [Fabricating] Physical Evidence, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) knew that [a criminal trial or proceeding] [an investigation by a duly constituted [prosecuting authority] [law enforcement agency] [grand jury] [legislative committee]] of this state was [pending] [about to be instituted].

Give 2a or 2b as applicable.

2. a. (Defendant) [altered] [destroyed] [concealed] [removed] any [record] [document] [thing] [item alleged], with the purpose to impair its [verity] [availability] in the [investigation] [proceeding],

b. (Defendant) [made] [presented] [used] any [record] [document] [thing] [item alleged], knowing it to be false.

Lesser Included Offenses

» ¿w'wBii iSKKl mmg: K® - SSiñi. SfoiB-iBS et--1 •«¡•‘¡{aHi I mil "HHt ¡Ml 'lKt!- !3g*!‘!5S! ;gjl- '»!•**! Ifti f'lfl.' Whitt;. :m ■•>)&»» law:')» •,&! SB m ■ ¡te#! flsm>sw .-«ii'siiaf naajiiiKí?!,!j]síi!i!!RV,;5«i!!3¡5 ts; ■,iviil‘i55!' ;agi]<>5ci • iaahwd «gutaa

CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.

None Attempt 777 .CM (T) 5A-

Attempt 777.04(1] 5.1

Comment

This instruction was adopted in 2010 [44 So.3d 565] and amended in 2013.

21.14 FALSE INFORMATION TO LAW ENFORCEMENT INVESTIGATING A MISSING PERSON 16 YEARS OF AGE OR YOUNGER WHO SUFFERS [GREAT BODILY HARM] [PERMANENT DISABILITY] [PERMANENT DISFIGUREMENT] [DEATH]

§ 837.055(2), Fla. Stat.

To prove the crime of False Information to Law Enforcement Investigating a Missing Person 16 Years of Age or Younger Who Suffers [Great Bodily Harm] [Permanent Disability] [Permanent Disfigurement] [Death], the State must prove the following six elements beyond a reasonable doubt:

1. (Name of law enforcement officer) was conducting a missing person investigation involving a child 16 years of age or younger.

2. (Name of law enforcement officer) was a law enforcement officer.

3. (Defendant) knew (name of law enforcement officer) was a law enforcement officer.

4. (Defendant) knowingly and willfully gave false information to (name of law enforcement officer).

5. (Defendant) intended to mislead (name of law enforcement officer) or impede the investigation.

6. The child who was the subject of the investigation suffered [great bodily harm] [death] [permanent [disability] [disfigurement]].

Definition.

Patterson v. State, 512 So.2d 1109 (Fla. 1st DCA 1987).

“Willfully” means knowingly, intentionally, and purposely.

Lesser Included Offenses

FALSE INFORMATION TO LAW ENFORCEMENT INVESTIGATING A MISSING PERSON 16 YEARS OF AGE OR YOUNGER WHO SUFFERS TGREAT BODILY HARM1 IDEATH1 IPERMANENT rDISABILFTYl rDISFIGUREMENTl - $ 837.055121

CATEGORY CATEGORY FLA. STAT. INS. NO.

ONE TWO

Knowingly Giving False Information Concerning a Missing Person Investigation 837.055fn 21.15

Knowingly Giving False Information Concerning a Felony Criminal Investigation 837.055m 21.15

Attempt 777.04m 5.1

Comments

It is undetermined whether an element of this crime is that the defendant knew that the missing person investigation involved a child 16 years of age or younger.

There is no case law regarding the definition of “law enforcement officer”

This instruction was adopted in 2013.

48.32115 FALSE INFORMATION TO LAW ENFORCEMENT

§ 837.055(1), Fla. Stat.

To prove the crime of False Information to Law Enforcement, the State must prove the following five elements beyond a reasonable doubt:

1. (Name of law enforcement officer) was conducting a [missing person investigation] [felony criminal investigation].

2. (Name of law enforcement officer) was a law enforcement officer.

3. (Defendant) knew that (name of law enforcement officer) was a law enforcement officer.

4. (Defendant) knowingly and willfully gave false information to (name of law enforcement officer).

5. (Defendant) intended to mislead (name of law enforcement officer) or impede the investigation.

Definition.

Patterson v. State, 512 So.2d 1109 (Fla. 1st DCA 1987).

“Willfully” means intentionally, knowingly and purposely.

Lesser Included Offenses

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

. FALSE. INFORMATION TOXÁW. ENFORCEMENT 837)055(1).

CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.

None

Attempt 777.04(1) 5.1

Comments

There is no case law regarding the definition of “law enforcement officer.”

This instruction was adopted in 2008 [995 So.2d 489] and amended in 2013.

28.5(a) RACING ON A HIGHWAY

3 F w S' CO yH CO

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

Give a, b, c, or d as applicable.

(Defendant)

a. drove a motor vehicle in

b. [participated] [coordinated] [facilitated] [collected monies] at the any location of for

c. knowingly rode as a passenger in

d. purposefully caused moving traffic to slow or stop for

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

Definitions.

Fla. Stat. § 316.191(l)(b).

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

Fla. Stat. § 316.003(21).

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

Fla. Stat. § 316.191(l)(c).

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

Fla. Stat. § 316.003(^2).

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

Fla. Stat. § 316.003(53).

Street or highway means

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

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

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

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

Lesser Included Offenses

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

' RACING ON A HIGHWAY -^ 316;i 9ÍI3)(a)::; m:-:

CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.

None

Attempt 777.04m 5.1

Comment

This instruction was adopted in 2009 [6 So.3d 574] and amended in 2012 [95 So.3d 868] and 2013.

29.18 FAILURE TO APPEAR

§ 843.15, Fla. Stat.

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

1. (Defendant) was released from custody pursuant to Chapter 903, Florida’s bail statute.

2. (Defendant) was released

Give as applicable.

a. in connection with a felony charge.

b. in connection with a misdemeanor charge.

c. while awaiting sentencing.

d. pending review by certiorari after conviction of an offense.

3, After [his][her] release, (defendant) willfully failed to appear as required for (insert name of proceeding, e.g. docket sounding, trial, sentencing) before a [court] [judicial officer].

Definitions.

Patterson v. State, 512 So.2d 1109 (Fla. 1st DCA 1987), Corrales v. State, 84 So.3d 406 (Fla. 1st DCA 2012).

“Willfully” means intentionally, knowingly, and purposely.

Give if applicable.

“Review by Certiorari” means that an appellate court has chosen to examine the proceedings that have taken place in a lower court.

Lesser Included Offenses

C,t FAILURE TO APPEAR &wkey;84&15:- á

CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.

None

Attempt 777.04m 5.1

Comment

An attorney’s communications to a client about court dates is outside the protection of the attorney-client privilege. Watkins v. State, 516 So.2d 1043 (Fla. 1st DCA 1987). A defendant may be convicted of Failure to Appear if he or she was released on his or her own recognizance. King v. State, 401 So.2d 931 (Fla. 1st DCA 1981). A defendant who leaves during his or her trial may be convicted of Failure to Appear. Howard v. State, 457 So.2d 1153 (Fla. 2d DCA 1984).

This instruction was adopted in 2013.

      . The Committee’s report originally asked the Court to also authorize for publication and use instruction 28.4 (Leaving the Scene of a Crash Involving Death or Injury). The Committee subsequently filed a motion to withdraw that instruction, and the Court granted that motion on October 25, 2013. Therefore, instruction 28.4 is no longer a part of case number SC 12-2031 and is not addressed in this opinion.

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


author: CANADY, J.

text:
    STATE of Florida and Department of Juvenile Justice, Petitioners, v. S.M., a child, Respondent.
    No. SC12-1405.
    Supreme Court of Florida.
    Dec. 12, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, FL; Celia A. Terenzio, Bureau Chief, and Richard C. Yaluntas, Assistant Attorney General, West Palm Beach, FL, for Petitioners.
    Diamond R. Litty, Public Defender, and Renee Rancour, Assistant Public Defender, Vero Beach, FL, for Respondent.
   CANADY, J.

In this case, we consider the provisions of Florida law governing the detention of juveniles prior to adjudicatory hearings. Specifically, we address whether a district court of appeal may grant a juvenile’s petition for a writ of habeas corpus seeking release from pre-adjudicatory hearing detention without reviewing the juvenile’s risk assessment instrument (RAI) and whether a juvenile with a risk assessment score of zero may be placed in home detention when it is alleged that the juvenile has violated probation.

We have for review the decision of the Fourth District Court of Appeal in S.M. v. State, 91 So.3d 175 (Fla. 4th DCA 2012), which granted S.M.’s petition for a writ of habeas corpus. Despite not being provided with a copy of S.M.’s RAI, the Fourth District reasoned that “[bjecause S.M.’s RAI score was zero, the [trial] court erred in placing her in home detention.” Id. at 176. The Fourth District’s decision expressly and directly conflicts with R.J.L. v. State, 22 So.3d 130 (Fla. 5th DCA 2009), B.L.G. v. State, 928 So.2d 461 (Fla. 5th DCA 2006), and T.D.S. v. State, 922 So.2d 346 (Fla. 5th DCA 2006), in which the Fifth District Court of Appeal concluded that a juvenile may be placed in home detention with a risk assessment score of zero. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

Because the RAI is necessary to establish entitlement to relief, we conclude that a district court may not grant a juvenile’s pre-adjudicatory petition for a writ of ha-beas corpus when the court is not presented with the juvenile’s RAI. We further conclude that a juvenile may be placed in home detention with a risk assessment score of zero when the juvenile qualifies for home detention under the specific terms of the form RAI, as did S.M. due to her status as an alleged probation violator. Accordingly, we quash the decision of the Fourth District.

I. BACKGROUND

On May 11, 2012, S.M. was arrested at school after allegedly punching another minor female. S.M. was on probation at the time of her arrest. S.M. was initially charged with aggravated battery on a victim who S.M. knew or should have known was pregnant under section 784.045(l)(b), Florida Statutes (2011).

On May 14, 2012, the trial court held a detention hearing at which S.M. challenged whether the State had probable cause to charge S.M. with aggravated battery on a victim who S.M. knew or should have known was pregnant. The trial court gave the State twenty-four hours to establish probable cause for the aggravated battery charge. On May 15, 2012, the trial court resumed the detention hearing. During the May 15 portion of the hearing, S.M. and the State disputed S.M.’s score on section III of the RAI. Eventually, they stipulated that S.M.’s risk assessment score should be zero. However, they disagreed about whether S.M. could be placed in home detention — instead of being released — with a score of zero. The trial court placed S.M. in home detention with electronic monitoring.

On May 17, 2012, S.M. filed with the Fourth District a petition for a writ of habeas corpus, in which she challenged the trial court’s home detention order. S.M. argued that because her risk assessment score was zero, the trial court could not place her in home detention. S.M., 91 So.3d at 175. S.M. did not submit a copy of her RAI with her habeas petition. Instead, the appendices to S.M.’s habeas petition included a copy of the trial court’s detention order, the trial court’s provisional order appointing the public defender, and transcripts from S.M.’s detention hearings on May 14 and 15, 2012. The State argued that the petitioner was required to submit the RAI in order for the district court to properly consider the petition. The Fourth District disagreed. A copy of S.M.’s RAI subsequently became a part of the record before the Fourth District when the State attached the RAI to its motion for rehearing.

The Fourth District relied on section 985.255(3)(a), Florida Statutes (2011), for the proposition that except for situations involving subsection (l)(d) — relating to domestic violence — or (l)(e) — relating to possessing or discharging a firearm on school property — of the statute, the determination of whether or not continued detention of a juvenile is necessary is based on the juvenile’s RAI score. S.M., 91 So.3d at 175-76. It explained that section 985.255(l)(h), Florida Statutes (2011), which addresses juveniles who are charged with violating probation, does not require that the trial court impose home detention. S.M., 91 So.3d at 176. As a result, the Fourth District concluded that “[bjecause S.M.’s RAI score was zero, the court erred in placing her in home detention.” Id.

The State and the Department of Juvenile Justice (hereinafter referred to collectively as “the State”) petitioned this Court for review, alleging express and direct conflict with R.J.L., B.L.G., and T.D.S. In R.J.L., B.L.G., and T.D.S., the trial judge placed the juvenile in secure detention for violating probation even though the juvenile’s risk assessment score was zero. R.J.L., 22 So.3d at 131; B.L.G., 928 So.2d at 461; T.D.S., 922 So.2d at 347. In each case, the Fifth District held that the juvenile must be released from secure detention and instead placed in home detention. R.J.L., 22 So.3d at 131; B.L.G., 928 So.2d at 461; T.D.S., 922 So.2d at 347. This Court granted review.

On January 9, 2013, the Second District issued J.L.T. v. Department of Juvenile Justice, 104 So.3d 1257 (Fla. 2d DCA 2013), in which it certified conflict with the Fourth District’s decision in the instant case and the First District’s decision in T.K.B. v. Durham, 63 So.3d 60 (Fla. 1st DCA 2011), on the issue of whether a juvenile may be placed in home detention with a risk assessment score of zero. In J.L.T., six juveniles were place in home detention for violating the terms of their probation or conditional release (three violated probation and three violated conditional release) even though they had risk assessment scores of zero. J.L.T., 104 So.3d at 1258-59. In that case, the Second District concluded:

Because the juveniles here were alleged to have violated the conditions of their probation or conditional release supervision, the probation officers properly concluded that home detention was appropriate under subsection II.J of the RAI in spite of a risk assessment score of zero points. At the detention hearings, the juvenile court judge properly continued their detentions under section 985.255(l)(h), which provides for continuing the child’s placement in home detention care if the child is alleged to have violated probation or conditional release. Because it was within the court’s discretion to determine that continued home detention was necessary in these circumstances, habeas relief was not warranted and we denied the petition.

Id. at 1259. The Second District explained that the Fourth District’s analysis in S.M. was “incomplete” because

the RAI also allows for certain exceptions under which the juvenile may be detained regardless of the total risk assessment score, which is only one aspect of the instrument. Thus, section 985.255(1) presupposes the existence of a qualifying risk assessment instrument, not just a qualifying score, before a court may continue detention.

Id. (footnote omitted).

Even though S.M.’s case appears to be moot because her adjudicatory hearing presumably occurred in 2012, this issue will recur, yet evade review because of the short period of time that a juvenile will be detained prior to an adjudicatory hearing. See N.W. v. State, 767 So.2d 446, 447 n. 2 (Fla.2000) (concluding that the Court had jurisdiction to consider on the merits a moot case involving periods of juvenile supervision and community control because the situation was capable of repetition but would evade review). In the analysis that follows, we first examine the governing statutory provisions and determine that the Fourth District erred in granting S.M.’s petition for a writ of habeas corpus without reviewing S.M.’s RAI. We then resolve the conflict issue by concluding that a juvenile may be placed in home detention with a risk assessment score of zero when authorized by the terms of the RAI.

II. ANALYSIS

A. Failure to Submit the RAI to the Fourth District

As a preliminary matter, this Court must determine whether a district court of appeal may consider a juvenile’s petition for a writ of habeas corpus when the petitioner fails to provide a copy of the RAI to the district court. Whether or not S.M. provided the Fourth District with an adequate record for the court to review, her habeas petition is “a pure question of law and is subject to the de novo standard of review.” State v. Blair, 39 So.3d 1190, 1191-92 (Fla.2010).

A petition for a writ of habeas corpus must be denied when the petitioner fails to provide the district court with an adequate record to review the petition. See, e.g., G.L. v. State, 917 So.2d 342, 342-43 (Fla. 5th DCA 2005) (denying habeas petition due to “woefully inadequate” record provided by petitioner); King v. Byrd, 590 So.2d 2, 3 (Fla. 1st DCA 1991) (denying habeas petition due to petitioner providing inadequate record that would have required the court to “accept petitioner’s version of the events as true”). In Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979), this Court explained:

When there are issues of fact the appellant necessarily asks the reviewing court to draw conclusions about the evidence. Without a record of the trial proceedings, the appellate court cannot properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory. Without knowing the factual context, neither can an appellate court reasonably conclude that the trial judge so misconceived the law as to require reversal. The trial court should have been affirmed because the record brought forward by the appellant is inadequate to demonstrate reversible error.

Id. The reasoning in Applegate has been applied to petitions for writs of habeas corpus brought by juveniles. For example, in G.L., the Fifth District stated that “the burden of bringing forth an adequate record is placed upon the petitioner” because “we cannot simply presume that error exists.” G.L., 917 So.2d at 343. The Fifth District denied G.L.’s habeas petition without prejudice in order to provide G.L.’s counsel the opportunity to refile the petition with an adequate record. Id. (footnote omitted).

In Florida, juvenile detention is governed by chapter 985, Florida Statutes. See B.M. v. Dobuler, 979 So.2d 308, 310 (Fla. 3d DCA 2008). Section 985.245(1), Florida Statutes (2011), states that “[a]ll determinations and court orders regarding placement of a child into detention care shall comply with all requirements and criteria provided in this part and shall be based on a risk assessment of the child, unless the child is placed into detention care as provided in s. 985.255(2).” Section 985.255(2), Florida Statutes (2011), addresses situations where a juvenile “is charged with committing an offense of domestic violence.” Section 985.245(2), Florida Statutes (2011), directs the Department of Juvenile Justice to develop the RAI and specifies certain factors that the RAI should take into consideration. Section 985.255(1), Florida Statutes (2011), contains subparagraphs (a) through (j), which list situations when a juvenile may remain detained following a detention hearing but prior to an adjudicatory hearing. The situations where a juvenile may be detained listed in section 985.255(1) overlap with the situations in which a juvenile may be detained listed in the form RAI. Section 985.255(3)(a), Florida Statutes (2011), states that except for situations where the child is charged with a domestic violence offense or an offense involving possession or discharge of a firearm on school property, “the court shall use the results of the risk assessment performed by the juvenile probation officer and, based on the criteria in subsection (1), shall determine the need for continued detention.”

A copy of S.M.’s RAI was essential for the review of S.M.’s habeas petition. Section 985.255(3)(a) is clear that in most cases, a trial court’s decision regarding juvenile detention must be based on the RAI.

By reviewing S.M.’s habeas petition on the merits without a copy of her RAI, the Fourth District accepted S.M.’s assertion that the RAI was irrelevant because the parties stipulated that S.M.’s RAI score was zero without verifying that the RAI contained no other information that was relevant to its review. Because S.M. provided the court with an inadequate record for review of her claim, the Fourth District erred in granting S.M.’s petition for a writ of habeas corpus. As the State argued, the Fourth District should have denied S.M.’s habeas petition without prejudice so that S.M.’s counsel could refile her habeas petition with a copy of the RAI. See G.L., 917 So.2d at 343; King, 590 So.2d at 3.

B. Home Detention of a Juvenile With a Risk Assessment Score of Zero

Whether a juvenile may be placed in home detention even though her risk assessment score is zero presents a pure question of law that is subject to de novo review. Insko v. State, 969 So.2d 992, 998 (Fla.2007). “Judicial interpretations of statutes are pure questions of law subject to de novo review.” Johnson v. State, 78 So.3d 1305, 1310 (Fla.2012) (citing State v. Sigler, 967 So.2d 835, 841 (Fla.2007)). “The detention of juveniles in Florida is governed by chapter 985, Florida Statutes.” See B.M., 979 So.2d at 310.

Section III of the RAI provides for the calculation of a risk assessment score and sets forth a key for determining whether a juvenile should be released, placed on non-secure or home detention, or in secure detention. But in some cases section III never comes into play. Section II of the RAI, titled “Admission Criteria,” lists criteria (A) through (K). At the end of section II, the RAI contains a box that reads: “If any of the above (A-E) are answered yes, proceed to Section III, unless youth is charged solely with an act of misdemeanor domestic violence (D). If each of the above (A-E) are answered no the youth must be released, unless F through K is answered yes.” Therefore, section III does not come into play and a juvenile may be detained in circumstances outlined in criteria (F) through (K) regardless of the juvenile’s risk assessment score. Criteria (F) through (K) address the following circumstances in which a juvenile: (F) “is charged with an offense involving use or possession of a firearm;” (G) is “delivered with a judicial order requiring detention care;” (H) has been found to be in contempt of court; (I) has been found to be in contempt of court regarding traffic violations; (J) has violated terms of probation or conditional release; (K) has failed to appear for an adjudicatory hearing after previously willfully failing to appear in the same case.

S.M.’s RAI contains a “yes” response to criteria (J) in section II. The “yes” response at criteria (J) indicates that S.M. was “alleged to have violated the conditions of [her] probation or conditional release supervision.” The RAI indicates that S.M. should be placed in home detention instead of a consequence unit. Based on the “yes” response to criteria (J) in section II, S.M. could be placed in home detention or in a consequence unit, regardless of her RAI score. This element of the form RAI is in line with the provisions of section 985.255(l)(h), Florida Statutes (2011), which specifically authorizes the continued detention of a juvenile where:

The child is alleged to have violated the conditions of the child’s probation or conditional release supervision. However, a child detained under this paragraph may be held only in a consequence unit as provided in s. 985.439. If a consequence unit is not available, the child shall be placed on home detention with electronic monitoring.

Therefore, the Fourth District erred when it concluded that S.M. could not be placed on home detention because her risk assessment score was zero. Conversely, the Second and Fifth District Courts of Appeal correctly concluded that a juvenile with a risk assessment score of zero may be placed in home detention when the juvenile has violated probation or conditional release. See J.L.T., 104 So.3d at 1259; R.J.L., 22 So.3d at 131; B.L.G., 928 So.2d at 461; T.D.S., 922 So.2d at 347.

III. CONCLUSION

Based on the foregoing, we quash the Fourth District’s decision granting S.M.’s habeas petition, disapprove the First District’s decision in T.K.B. to the extent that it is inconsistent with this opinion, and approve J.L.T., R.J.L., B.L.G., and T.D.S.

It is so ordered.

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


text:
    Manolo MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4077.
    District Court of Appeal of Florida, Fifth District.
    March 12, 2000.
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED.

TORPY, EVANDER and JACOBUS, JJ., concur.


text:
    Ana TORRES, Appellant, v. COSTCO WHOLESALE CORP. and Sedgwick CMS, Appellees.
    No. 1D07-4214.
    District Court of Appeal of Florida, First District.
    Sept. 26, 2008.
    L. Barry Keyfetz of L. Barry Keyfetz, P.A., Miami, for Appellant.
    Douglas W. Barnes of Barnes & Simmons, P.A., Miami Lakes, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Claimant raises two issues. The first issue was not preserved. In the second issue, Claimant argues the Judge of Compensation Claims (JCC) erred by denying interest on costs from the date the Employer/Carrier (E/C) agreed to the amount of costs. Claimant further argues that, because the amount and the entitlement to costs were not in dispute, the JCC was not required to enter an order awarding costs for those costs to become due. In other words, Claimant seeks prejudgment interest on a subsequent award of costs. We affirm.

The reasoning expressed by this court regarding the payment of interest on attorney’s fees is applicable to payment of interest on taxable costs. See Pruden v. Herbert Contractors, Inc., 988 So.2d 135, 33 Fla. L. Weekly D1868 (Fla. 1st DCA July 30, 2008). The JCC has no authority to award interest on costs for any period prior to the cost award.

The JCC’s order is AFFIRMED.

BROWNING, C.J., BARFIELD and THOMAS, JJ., concur.


text:
    Bruce CUNNINGHAM, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-200.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 2012.
    Bruce Cunningham, pro se.
    Pamela Bondi, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appel-lee.
   ORDER STRIKING MOTION FOR CLARIFICATION WITH EXPLANATION

The Appellant, Bruce Cunningham, has filed a “motion for clarification” in this appellate proceeding. This proceeding was an appeal from the denial of a post-conviction motion. We affirmed the circuit court’s postconviction order in March 2008. We denied Mr. Cunningham’s request to recall mandate in June 2008. Our term of court for that period ended in July 2008. Accordingly, this court has no jurisdiction to consider this motion and we must strike this motion as unauthorized.

Although we strike this motion, the content of the motion concerned this court. As a result, we considered its content and have decided that it is appropriate for this court to comment on the issue. In a sense, Mr. Cunningham is asking this court to reverse the ruling of a federal judge in the Middle District of Florida. He claims that the federal court, at the urging of the Florida Department of Corrections, has reached an incorrect ruling on whether Mr. Cunningham exhausted his state court remedies in this court.

We have read the order entered by the federal court on January 27, 2011, in Cunningham v. Secretary, Department of Cor rections, No. 8:08-cv-2213-T-26MAP (M.D.Fla. Jan. 27, 2011). Mr. Cunningham appears to accurately represent that the order denies some of his claims because his attorney in the appeal before this court did not appeal every ground in his postconviction motion. The order concludes that those claims are procedurally barred in federal court.

This court does not review federal orders in this context. We do, however, conclude that we have some responsibility to confirm the accuracy of Mr. Cunningham’s factual position on the issue of procedural default both for his benefit and for the benefit of any prisoner similarly situated. The federal court apparently was not aware that the policy of this court from at least December 2000 to October 2010 was different from the policies in other Florida district courts of appeal. See Corn v. McNeil, No. 3:08cv199/MCR/EMT, 2010 WL5811434, at *16 (N.D.Fla. Nov. 24, 2010); see also Norwood v. State, 39 So.3d 336 (Fla. 2d DCA 2010), withdrawn and superseded, 67 So.3d 270 (Fla. 2d DCA 2011).

Mr. Cunningham’s appeal concerned a postconviction motion where some grounds were summarily denied in a nonfinal order and the remaining grounds were later denied after an evidentiary hearing, which resulted in a final appealable order. Our records confirm that his attorney raised a single issue on appeal. Our records further confirm that, as was our standard procedure from at least December 2000 to October 2010, this court independently reviewed each and every issue that had been summarily denied.

Rule 9.141 provides express procedural rules for the handling of appeals from orders denying postconviction motions when the “motion” is denied without an evidentiary hearing. See Fla. R.App. P. 9.141(b)(2). It also provides rules for the handling of appeals from orders denying postconviction motions “after eviden-tiary hearing.” See Fla. RApp. P. 9.141(b)(3). These rules are written in terms of “motions” and do not expressly discuss what a court should do if some grounds within a motion are summarily denied and others are denied after an evi-dentiary hearing. In the above-described period, this court interpreted these rules to provide relief under rule 9.141(b)(2) for grounds summarily denied and to provide relief under rule 9.141(b)(3) for grounds denied after an evidentiary hearing. The effect of this interpretation was to require briefing under rule 9.141(b)(3)(C) only for grounds that were denied after an eviden-tiary hearing. Although this policy was not well publicized, it was known among the lawyers who handled these appeals. The attorney filing a brief on behalf of Mr. Cunningham in this court undoubtedly knew that she had no obligation to brief issues that had been summarily denied because those issues would automatically receive review under the process described in rule 9.141(b)(2).

Our standard policy in this regard was discussed in Norwood, 39 So.3d at 337, which relied on an opinion issued in Walton v. State, 35 Fla. L. Weekly D856 (Fla. 2d DCA Apr.16, 2010). These opinions have been cited by Mr. Cunningham in his motion for clarification. However, after these opinions were issued, they were revised on rehearing. As a result, the version of the Walton opinion cited by Mr. Cunningham was never officially published. Instead, this court issued a revised opinion. Walton v. State, 58 So.3d 887 (Fla. 2d DCA 2011). The original opinion in Todd Norwood’s ease' was withdrawn and superseded by a much shorter opinion in Norwood v. State, 67 So.3d 270 (Fla. 2d DCA 2011). Unlike the earlier Norwood opinion, the superseding opinion affirmed in whole without discussing this court’s prior practice of considering all issues that had been summarily denied by a circuit court irrespective of the fact that such issues had not been briefed. It is noteworthy that the Department of Corrections filed its response to Mr. Cunningham’s petition in the federal proceeding in 2009. The final order issued by the federal court in January 2011 was released after the original opinion in Norwood was issued and before it was superseded by the newer opinion.

By 2010, this court was aware that its interpretation of rule 9.141 conflicted with the interpretations of the other courts. In September 2010, this court, by a majority vote of its active judges, decided to align its policy with those of the other Florida district courts of appeal. Thus, we no longer determine our procedure based on how a ground in a motion is resolved. If any ground is resolved after an evidentiary hearing, we require the appellant to process the appeal under rule 9.141(b)(3) and not under rule 9.141(b)(2). Thus, this court no longer conducts an independent review in a situation similar to Mr. Cunningham’s, but he is factually correct that we did so in his case and in all similar cases between December 2000 and October 2010. This court affirmed on the merits all summarily denied claims in his postcon-viction proceeding.

ALTENBERND, NORTHCUTT, and CRENSHAW, JJ., Concur.

      . Rule 9.141(b)(2) has always been controversial within the district courts of appeal. An automatic review without briefing from either side has a tendency to encourage the court’s staff attorneys to become advocates for one side or the other. By requiring briefing, rule 9.141(b)(3) may place a greater burden on unrepresented defendants, but it places the reviewing court in a clearer position of neutrality.


text:
    Drexel WILLIAMS, Appellant, v. TARMAC AMERICA and ESIS-ACE U.S. Co., Appellees.
    No. 1D11-3273.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2012.
    Rehearing Denied Sept. 24, 2012.
    Joan Dymond Horenstein of the Law Office of Joan Dymond Horenstein, P.A., Davie, for Appellant.
    H. George Kagan of Miller, Kagan, Rodriguez & Silver, P.L., West Palm Beach, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Appellant/Claimant appeals an order of the Judge of Compensation Claims (JCC) denying permanent total disability (PTD) and PTD supplemental benefits on the ground Claimant had not proven the existence of a back injury due to repetitive trauma with a date of accident of January 26, 2004. We reverse the order, and remand for a new evidentiary hearing on the claims.

Claimant drove cement trucks for Tarmac America beginning in 1987, and began to have back pain following a work-related vehicular accident some time before 1990. In the 1990s, the pain worsened, and the Employer/Carrier (E/C) began providing medical care for Claimant’s back, including pain medication. On March 10, 2004, Claimant resigned from employment, for-the stated reason that the continuous medication dulled his senses and made it difficult for him to drive safely. The E/C continued to provide medical care for Claimant’s back.

In 2010, Claimant filed a petition for benefits (PFB) stating claims for PTD and PTD supplemental benefits from March 10, 2004, and continuing. While describing the accident as repetitive trauma to Claimant’s back with a date of accident of January 26, 2004, the PFB did not raise compensability of the back condition as an issue, but instead assumed the E/C had accepted the accident as compensable. The JCC ruled, however, that the Claimant had not established a repetitive trauma injury to his back, and denied the requested benefits on that basis.

On appeal, Claimant argues compensa-bility of the back injury was never at issue. We agree, and hold the JCC erred in making findings on matters outside the issues framed for the hearing. See, e.g., Jordan v. Martines Corp., 534 So.2d 806 (Fla. 1st DCA 1988) (holding that ruling beyond scope of hearing is fundamental error). Compensability of the back condition was neither put at issue by Claimant in the PFB or pretrial stipulation nor challenged by the E/C. Notably, the E/C’s provision of medical care for the back condition, in the absence of a subsequent denial of compensability within 120 days of the initial provision of care for this same condition, precludes any challenge to com-pensability of the condition. See § 440.20(4), Fla. Stat. (2004); Ch. 93-415, § 26, at 139, Laws of Fla. (creating section 440.20(4)).

Because the JCC’s analysis of Claimant’s entitlement to indemnity benefits stopped short of full consideration of the statutory requirements for such benefits, we remand for further fact finding and analysis. Because a new evidentiary hearing is warranted on remand, we need not address Claimant’s other issues on appeal, which are predicated on discovery or evi-dentiary issues that a new hearing will make moot.

REVERSED and REMANDED.

BENTON, C.J., CLARK, and MAKAR, JJ., concur.

      . On January 22, 2004, Claimant fell from a ladder on the truck, and hurt his left knee. Claimant later added a claim for medical care for the 2004 knee injury. The parties have resolved this claim amicably.

      . Claimant's expert, Dr. Ellowitz, opined the back injury was caused by years of bouncing up and down in the truck’s seat driving over uneven ground. The E/C’s expert, Dr. Lang, opined there was no causal connection.


text:
    MASSEY SERVICES, INC. and Sedgwick Claims Management Services, Appellants, v. Jinger KNOX, Appellee.
    No. 1D12-2942.
    District Court of Appeal of Florida, First District.
    Jan. 16, 2013.
    Ricki L. Whipple of Zimmerman, Kiser & Sutcliffe, Orlando, for Appellants.
    Michael L. Davis, Orlando, and Bill McCabe, Longwood, for Appellee.
   PER CURIAM.

The Employer/Carrier (E/C) appeals an order of the Judge of Compensation Claims (JCC) awarding workers’ compensation benefits to Claimant. The E/C raises three issues on appeal, only one of which merits discussion.

We affirm the first two issues raised by the E/C which relate to the JCC’s lack of findings regarding the.major contributing cause of Claimant’s disability and need for medical treatment, and the sufficiency of the evidence supporting the award of temporary partial disability (TPD) benefits from May 11, 2011, and thereafter. We write to address the E/C’s third issue: Whether the record supports the award of TPD benefits from April 25, 2011, through May 10, 2011.

Although medical testimony establishes Claimant’s physical restrictions as of May 11, 2011, and thereafter, no medical evidence establishes Claimant’s medical work restrictions prior to May 11, 2011; nor was the doctor whose opinions were accepted by the JCC asked questions regarding Claimant’s restrictions prior to May 11, 2011. Cf. Feacher v. Total Employee Leasing/Guarantee Ins. Co., 61 So.3d 1236 (Fla. 1st DCA 2011) (holding award of TPD is supported where independent medical examiner testified claimant should have remained off-work from date of accident); Kenney v. Juno Fire Control Dist., 506 So.2d 449 (Fla. 1st DCA 1987) (reversing denial of temporary indemnity benefits where medical evidence retroactively confirmed claimant’s testimony as to her disability); Evans v. Orlando Work Force, 449 So.2d 992 (Fla. 1st DCA 1984) (reversing denial of temporary indemnity benefits where medical testimony retroactively corroborated claimant’s complaints of pain).

Accordingly, the JCC erred in awarding TPD benefits from April 25, 2011, through May 10, 2011. For the foregoing reasons, the order on appeal is AFFIRMED in part, REVERSED in part, and REMANDED for entry of an order consistent with this opinion.

BENTON, C.J., DAVIS and ROBERTS, JJ., concur.


text:
    Alfredo Rosario ORTIZ, Appellant, v. CORRECTIONAL MEDICAL SERVICES and Liberty Mutual Insurance Co., Appellees.
    No. 1D13-0812.
    District Court of Appeal of Florida, First District.
    May 17, 2013.
    Mark L. Zientz of the Law Offices of Mark L. Zientz, P.A., Miami, for Appellant.
    Tara L. Sa’id of the Law Offices of Amy L. Warpinski, Jacksonville, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, the claimant seeks review of an order denying approval of $254.83 in costs stipulated to by the employer and carrier (E/C). The E/C filed a notice with this Court stating that they did not intend to file an answer brief and that they have “no counterargument to the issue before [the court].” We treat this notice as a confession of error and, accordingly, reverse the order denying approval of the stipulated costs and remand for entry of an order approving the E/C’s payment of $254.83 in costs to the claimant.

REVERSED and REMANDED with directions.

PADOVANO, WETHERELL, and SWANSON, JJ., concur.


text:
    Erica McQUEEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-0254.
    District Court of Appeal of Florida, First District.
    June 28, 2013.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED.

WOLF, ROBERTS, and RAY, JJ., concur.


text:
    Kevin OWENS, Appellant, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Appellee.
    No. 1D11-6554.
    District Court of Appeal of Florida, First District.
    Sept. 18, 2013.
    Rehearing Denied Oct. 23, 2013.
    Appellant Kevin Owens, pro se.
    Pamela Jo Bondi, Attorney General, and David W. Grimes, Assistant Attorney General, Tallahassee, for Appellee.
   ON MOTION FOR REHEARING EN BANC

PER CURIAM.

The Department of Corrections filed a Motion for Rehearing En Banc of our original opinion in this case. We deny the motion. On our own motion and for the purpose of clarification, we withdraw our previous opinion and substitute the following in its place.

Kevin Owens, Appellant, seeks review of a final order dismissing four petitions for writ of mandamus challenging the outcomes of prison disciplinary proceedings. Because the circuit court disposed of the petitions on procedural grounds, our review is by appeal. See Green v. Moore, 777 So.2d 425, 426 (Fla. 1st DCA 2000).

The circuit court dismissed Appellant’s petitions for failure to exhaust his administrative remedies by complying with the Department’s rule requiring inmates to attach responses to their formal grievances when appealing to the Secretary of the Department concerning the handling of such grievances. See Fla. Admin. Code R. 33-103.007(5)(a). This dismissal was erroneous because a disputed issue of fact exists concerning whether Department officials timely provided the responses to Appellant, and the court did not take competent, substantial evidence to reach its determination that the door to review in the circuit court is closed. Cf. Austin v. McDonough, 948 So.2d 970, 970 (Fla. 1st DCA 2007) (affirming a circuit court’s determination that administrative remedies were not exhausted where competent, substantial evidence supported the circuit court’s finding that the appellant did not timely place his administrative appeals into the hands of prison officials). Accordingly, we reverse and remand for the circuit court to either take evidence to resolve the disputed issue concerning Appellant’s exhaustion of administrative remedies as a prerequisite to review of the Department’s actions or to proceed to appellate review of the underlying responses from the Secretary.

REVERSED and REMANDED.

BENTON, RAY, and MAKAR, JJ., concur.


text:
    Jean Max Herve AUGUSTIN and Josee S.N. Voigt-Augustin, Appellants v. U.S. BANK NATIONAL ASSOCIATION, Appellee.
    No. 2D12-4428.
    District Court of Appeal of Florida, Second District.
    Oct. 16, 2013.
    Jean Max Herve Augustin, pro se.
    Michael D. Starks, Richard C. Swank, and Taraneh Maloney of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Orlando, for Appellee.
   PER CURIAM.

Affirmed.

DAVIS, C.J., WALLACE, and LaROSE, JJ., Concur.


text:
    Kaulman Reese VINES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-4733.
    District Court of Appeal of Florida, First District.
    Oct. 18, 2013.
    Rehearing Denied Feb. 14, 2014.
    Kaulman Reese Vines, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(d)(5).

LEWIS, C.J., ROWE and MAKAR, JJ., concur.