text:
    Alvin Leroy MORTON, Appellant, v. STATE of Florida, Appellee.
    No. SC17-1715
    Supreme Court of Florida.
    [February 2, 2018]
    James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, Julissa R. Fontán, Maria E. DeLiberato and Chelsea Shirley, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Scott A. Browne, Senior Assistant Attorney General, Tampa, Florida, for Appellee
   PER CURIAM.

We have for review Alvin Leroy Morton's appeal of the circuit court's order denying Morton's motion filed pursuant to Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Morton's motion sought relief pursuant to the United States Supreme Court's decision in Hurst v. Florida, --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and our decision on remand in Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied, --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). This Court stayed Morton's appeal pending the disposition of Hitchcock v. State, 226 So.3d 216 (Fla. 2017), cert. denied, --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017). After this Court decided Hitchcock, Morton responded to this Court's order to show cause arguing why Hitchcock should not be dispositive in this case.

After reviewing Morton's response to the order to show cause, as well as the State's arguments in reply, we conclude that Morton is not entitled to relief. Morton was convicted of two counts of first-degree murder. Morton v. State, 789 So.2d 324, 327 (Fla. 2001). Following a jury's recommendation for death by a vote of eleven to one on both counts, the trial court sentenced Morton to death on both counts, and his sentences became final in 2001. Id. at 328. Thus, Hurst does not apply retroactively to Morton's sentences of death. See Hitchcock, 226 So.3d at 217. Accordingly, we affirm the denial of Morton's motion.

The Court having carefully considered all arguments raised by Morton, we caution that any rehearing motion containing reargument will be stricken. It is so ordered.

LABARGA, C.J., and QUINCE, POLSTON, and LAWSON, JJ., concur.

PARIENTE, J., concurs in result with an opinion.

LEWIS and CANADY, JJ., concur in result.

PARIENTE, J., concurring in result.

I concur in result because I recognize that this Court's opinion in Hitchcock v. State, 226 So.3d 216 (Fla. 2017), cert. denied, --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), is now final. However, I continue to adhere to the views expressed in my dissenting opinion in Hitchcock.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES-REPORT 2017-05.
    No. SC17-1714
    Supreme Court of Florida.
    [February 8, 2018]
    Judge F. Rand Wallis, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Daytona Beach, Florida; and Bart Schneider, Staff Liaison, Office of the State Courts Administrator, Tallahassee, Florida, for Petitioner
   PER CURIAM.

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

The Committee proposes amending the following standard criminal jury instructions: 28.4 (Leaving the Scene of a Crash Involving [Death] [Serious Bodily Injury] [Injury] ); 28.4(a) (Leaving the Scene of a Crash Involving Only Damage to an Attended Vehicle or Attended Property); 28.4(b) (Leaving the Scene of a Crash Involving Damage to an Unattended Vehicle or Unattended Property); 28.6 (Fleeing to Elude a Law Enforcement Officer); 28.7 (Fleeing to Elude a Law Enforcement Officer (Siren and Lights Activated) ); 28.8 (Fleeing to Elude a Law Enforcement Officer (Siren and Lights Activated with High Speed or Reckless Driving); 28.8(a) (Fleeing to Elude a Law Enforcement Officer (Siren and Lights Activated with High Speed or Reckless Driving Causing Serious Bodily Injury or Death) ); 28.8(b) (Aggravated Fleeing or Eluding (Leaving a Crash Involving Serious Bodily Injury, Injury or Death then Causing Serious Bodily Injury or Death) ); 28.8(c) (Aggravated Fleeing or Eluding (Leaving a Crash Involving Damage to a Vehicle or Property then Causing Serious Bodily Injury or Death) ); 28.8(d) (Aggravated Fleeing or Eluding (Leaving a Crash Involving Serious Bodily Injury, Injury or Death then Causing Injury or Property Damage to Another) ); and 28.8(e) (Aggravated Fleeing or Eluding (Leaving a Crash Involving Damage to a Vehicle or Property then Causing Injury or Property Damage to Another) ).

The Committee published all of the proposals in the January 15, 2017, edition of The Florida Bar News . The Committee made responsive changes to a majority of the proposals following its receipt of comments. The Court did not publish the proposals after they were filed. Having considered the Committee's report, we authorize for publication and use the above-listed instructions as proposed.

We note the more significant amendments to the standard criminal jury instructions as follows. First, instructions 28.4, 28.8(b), 28.8(c), 28.8(d), and 28.8(e) are amended to remove the phrase "or accident" from the elements of the offenses. Second, the Leaving the Scene instructions, 28.4, 28.4(a), and 28.4(b), and the Aggravated Fleeing or Eluding instructions, 28.8(b), 28.8(c), 28.8(d), and 28.8(e), are amended to add a citation to Gaulden v. State , 195 So.3d 1123 (Fla. 2016), with the definition for the phrase "a vehicle is 'involved in a crash,' " meaning "if it collides with another vehicle, person, or object."

Having considered the Committee's report, we authorize the amended instructions, as set forth in the appendix to this opinion, for publication and use. New language is indicated by underlining, and deleted language is indicated by struck-through type. In authorizing the publication and use of these instructions, we express no opinion on their correctness and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. The instructions as set forth in the appendix shall become effective when this opinion becomes final.

It is so ordered.

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

APPENDIX

28.4_ LEAVING THE SCENE OF A CRASH INVOLVING [DEATH] [SERIOUS BODILY INJURY] [INJURY]

§ 316.027(2), Fla. Stat.; § 316.062, Fla. Stat.

To prove the crime of Leaving the Scene of a Crash Involving [Death] [Injury], the State must prove the following four elements beyond a reasonable doubt:

1. (Defendant) was the driver of a vehicle involved in a crash or accident occurring on public or private property resulting in [injury to] [death of] any person.
2. (Defendant) knew that [he] [she] was involved in a crash or accident.

Give 3a if death is charged or 3b if injury or serious bodily injury is charged.

3. a. (Defendant) knew, or should have known from all of the circumstances, including the nature of the crash or accident, of the injury to or death of the person.
b. (Defendant) knew, or should have known from all of the circumstances, including the nature of the crash or accident, of the injury to the person.

Give 4a, 4b, or both as applicable.

4. a. (Defendant) willfully failed to stop at the scene of the crash or accident or as close to the crash or accident as possible and remain there until [he] [she] had given identifying information to the [injured person] [driver] [occupant] [person attending the vehicle] and to any police officer investigating the crash or accident.
[or]
b. (Defendant) willfully failed to render reasonable assistance to the injured person if such treatment appeared to be necessary or was requested by the injured person.

If the State proves that the defendant willfully failed to give any part of the "identifying information" or willfully failed to give reasonable assistance, the State satisfies this element of the offense.

Give if serious bodily injury is charged. § 316.027(1)(a), Fla. Stat.; § 316.027(2)(b), Fla. Stat.

If you find that (defendant) committed the crime of Leaving the Scene of a Crash Involving Injury, you must then determine whether the State proved beyond a reasonable doubt that the injury was a serious bodily injury.

"Serious bodily injury" means an injury to a person, including the driver, which consists of a physical condition that creates a substantial risk of death, serious disfigurement, or protracted loss or impairment of the function of a bodily member or organ.

Enhancement. Give when the State alleged the victim was a "vulnerable road user." § 316.027(2)(f), Fla. Stat.

If you find that (defendant) committed the crime of Leaving the Scene of a Crash Involving [Death] [Serious Bodily Injury] [or] [Injury], you must then determine whether the State proved beyond a reasonable doubt that the [injured person] [person who died] was:

[a pedestrian].
[actually engaged in work upon a highway].
[actually engaged in work upon utility facilities along a highway].
[engaged in the provision of emergency services within the right-of-way].
[operating a [bicycle] [motorcycle] [scooter] [moped] lawfully on the roadway].
[riding an animal].
[lawfully operating [a farm tractor or similar vehicle designed primarily for farm use] [a skateboard] [roller-skates] [in-line skates] [a horse-drawn carriage] [an electric personal assistive mobility device] [a wheelchair] on [a public right-of-way]
[crosswalk] [shoulder of the roadway]].

Definitions. Give as applicable. § 316.003(75), Fla. Stat.

Gaulden v. State, 195 So.3d 1123 (Fla. 2016).

A vehicle is "involved in a crash" if it collides with another vehicle, person, or object.

§ 316.003(75), Fla. Stat.

A "vehicle" is any device in, upon, or by which any person or property is, or may be, transported or drawn upon a highway, except devices used exclusively upon stationary rails or tracks.

§ 316.062, Fla. Stat.

"Identifying information" means the name, address, vehicle registration number, and, if available and requested, the exhibition of the defendant's license or permit to drive.

"Reasonable assistance" includes carrying or making arrangements to carry the injured person to a physician or hospital for medical treatment.

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

"Willfully" means knowingly, intentionally and purposely.

If the "vulnerable road user" enhancement is given, insert applicable definitions from § 316.003, Fla. Stat.

Lesser Included Offenses

LEAVING THE SCENE OF A CRASH INVOLVING DEATH - 316.027(2)(c) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Leaving the Scene of a 316.027(2)(b) 28.4 Crash Involving Serious Bodily Injury* Leaving the Scene of a 316.027(2)(a) 28.4 Crash Involving Injury* Attempt 777.04(1) 5.1 LEAVING THE SCENE OF A CRASH INVOLVING SERIOUS BODILY INJURY - 316.027(2)(b) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Leaving the Scene of a 316.027(2)(a) 28.4 Crash Involving Injury Attempt 777.04(1) 5.1

Comments

* InWilliams v. State, 732 So.2d 431 (Fla. 2d DCA 1999), the court stated in dictum that Leaving the Scene of a Crash Involving Injury is a necessarily lesser-included offense of Leaving the Scene of a Crash Involving Death. In other areas, however, where there is no issue that a person was killed as a result of an incident giving rise to criminal charges, non-death lessers are not appropriate.See, e.g., State v. Barritt, 531 So.2d 338 (Fla. 1988);Humphrey v. State, 690 So.2d 1351 (Fla. 3d DCA 1997).

It is unclear whether the courts will interpret the statutory phrase of "involved in a crash" as including instances where the defendant's vehicle did not collide with another vehicle, person, or object, but the defendant's driving pattern caused vehicle 2 to collide with a person, an object, or vehicle 3. See State v. Elder, 975 So.2d 481 (Fla. 2d DCA 2007) (decided before Gaulden v. State, 195 So.3d 1123 (Fla. 2016)).

This instruction was adopted in 1995 [665 So.2d 212] and amended in 2008 [973 So.2d 432], 2015 [166 So.3d 136 1],and 2016 [192 So.3d 1190], and 2018.

28.4(a)_ LEAVING THE SCENE OF A CRASH INVOLVING ONLY DAMAGE TO AN ATTENDED VEHICLE OR ATTENDED PROPERTY

§ 316.061(1), Fla. Stat.

To prove the crime of Leaving the Scene of a Crash Involving Only Damage to an Attended Vehicle or Attended Property, the State must prove the following four elements beyond a reasonable doubt:

1. (Defendant) was the driver of a vehicle involved in a crash.
2. The crash resulted only in damage to a vehicle or other property.
3. The [vehicle] [other property] was [driven] [attended] by [a person] [(name of person)].
4. (Defendant) failed to stop at the scene of the crash or as close to the crash as possible and remain there until [he] [she] had given identifying information to the [driver or occupant of the damaged vehicle] [person attending the damaged vehicle or property] [and to any police officer at the scene of the crash or who is investigating the crash].

If the State proves that the defendant failed to give any part of the "identifying information," the State satisfies this element of the offense.

Definitions.

Gaulden v. State, 195 So.3d 1123 (Fla. 2016).

A vehicle is "involved in a crash" if it collides with another vehicle, person, or object.

Fla. Stat. § 316.062(1) . Fla. Stat.

"Identifying information" means the name, address, vehicle registration number, and if available and requested, the exhibition of the defendant's license or permit to drive.

Fla. Stat. § 316.003(75) . Fla. Stat.

"Vehicle" means every device, in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks.

Lesser Included Offenses

LEAVING THE SCENE OF A CRASH INVOLVING ONLY DAMAGE TO AN ATTENDED VEHICLE OR ATTENDED PROPERTY - 316.061(1) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None Attempt 777.04(1) 5.1

Comment s

It is unclear whether the courts will interpret the statutory phrase of "involved in a crash" as including instances where the defendant's vehicle did not collide with another vehicle, person, or object, but the defendant's driving pattern caused vehicle 2 to collide with a person, an object, or vehicle 3. See State v. Elder, 975 So.2d 481 (Fla. 2d DCA 2007), which was decided before Gaulden v. State, 195 So.3d 1123 (Fla. 2016).

As of August 2017, there was no case law directly addressing the issue of whether the State must prove the defendant knew, or should have known, of either the crash or the property damage. Compare State v. Dorsett, 158 So.3d 557 (Fla. 2015), and Mancuso v. State, 652 So.2d 370 (Fla. 1995), dealing with § 316.027, Fla. Stat., which, unlike § 316.061, Fla. Stat., contains an explicit willfulness requirement.

This instruction was adopted in 2013 [131 So.3d 720] and amended in 2018.

28.4(b) LEAVING THE SCENE OF A CRASH INVOLVING DAMAGE TO AN UNATTENDED VEHICLE OR UNATTENDED PROPERTY § 316.063(1), Fla. Stat.

To prove the crime of Leaving the Scene of a Crash Involving Damage to an Unattended Vehicle or Unattended Property, the State must prove the following four elements beyond a reasonable doubt:

1. (Defendant) was the driver of a vehicle involved in a crash or collision.
2. The crash or collision resulted in damage to another vehicle or other property.
3. The vehicle or other property was not driven or attended by any person.
4. (Defendant) failed to immediately stop at the scene of the crash or collision and then and there either a. locate and notify the operator or owner of the vehicle or other property of [his] [her] name and address and the registration number of the vehicle [he] [she] was driving, or
b. attach securely in a conspicuous place in or on the vehicle or other property a written notice giving [his] [her] name and address and the registration number of the vehicle [he] [she] was driving, and, without unnecessary delay, notify the nearest office of a duly authorized police authority.

Gaulden v. State, 195 So.3d 1123 (Fla. 2016).

A vehicle is "involved in a crash" if it collides with another vehicle, person, or object.

§ 316.003(75), Fla. Stat.

"Vehicle" means every device, in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks.

Lesser Included Offense

LEAVING THE SCENE OF A CRASH INVOLVING DAMAGE TO AN UNATTENDED VEHICLE OR UNATTENDED PROPERTY - 316.063(1) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None Attempt 777.04(1) 5.1

Comments

It is unclear whether the courts will interpret the statutory phrase of "involved in a crash" as including instances where the defendant's vehicle did not collide with another vehicle, person, or object, but the defendant's driving pattern caused vehicle 2 to collide with a person, an object, or vehicle 3. See State v. Elder, 975 So.2d 481 (Fla. 2d DCA 2007) (decided before Gaulden v. State, 195 So.3d 1123 (Fla. 2016)).

As ofSeptember 2015August 2017, there was no case law directly addressing the issue of whether the State must prove the defendant knew, or should have known, of either the crash or the property damage.Compare State v. Dorsett, 158 So.3d 557 (Fla. 2015), andMancuso v. State, 652 So.2d 370 (Fla. 1995), dealing with § 316.027, Fla. Stat., which, unlike § 316.063, Fla. Stat., contains an explicit willfulness requirement.

This instruction was adopted in 2016 [192 So.3d 1190] and amended in 2018.

28.6 FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER § 316.1935(1), Fla. Stat.

To prove the crime of Fleeing to Elude a Law Enforcement Officer, the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) was operating a vehicle upon a street or highway in Florida.
2. A duly authorized law enforcement officer ordered the defendant to stop or remain stopped.
Give 3a or 3b as applicable.
3. (Defendant), knowing [he] [she] had been ordered to stop by a duly authorized law enforcement officer,
a. willfully refused or failed to stop the vehicle in compliance with the order
b. having stopped the vehicle, willfully fled in a vehicle in an attempt to elude the officer.

Definitions.

"Operator" means any person who is in actual physical control of a motor vehicle upon the highway [or who is exercising control over or steering a vehicle being towed by a motor vehicle].

Fla. Stat. § 316.003(53) , Fla. Stat.

"Street or highway" means the entire width between boundary lines of every way or place of whatever nature when any part thereof is open to the public for purposes of vehicular traffic.

Fla. Stat. § 316.003(75) , Fla. Stat.

"Vehicle" means every device, in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks.

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

"Willfully" means intentionally, knowingly, and purposely.

Lesser Included Offenses

FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER - 316.1935(1) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Reckless Driving (if 316.192(1)(b) 28.5 there was evidence that the fleeing was in a motor vehicle) Disobedience to Police 316.072(3) 28.18 or Fire Department Officials*

Comments

For the category two lesser included offense, seeKoch v. State, 39 So.3d 464 (Fla. 2d DCA 2010).* The Second District Court of Appeal requires Disobedience to Police to be given as a lesser when the charging document tracks the Fleeing statute. See Koch v. State, 39 So.3d 464 (Fla. 2d DCA 2010); Lucas v. State, 192 So.3d 1269 (Fla. 2d DCA 2016). The Committee retained Disobedience to Police in the Category Two box, however, because Disobedience to Police requires the police order or direction to be lawful and the crime of Fleeing to Elude LEO does not contain that element. See State v. Kirer, 120 So.3d 60 (Fla. 4th DCA 2013); Jackson v. State, 463 So.2d 372 (Fla. 5th DCA 1985).

This instruction was adopted in 2000 [765 So.2d 692] and amended in 2008 [976 So.2d 1081], 2011 [73 So.3d 136],and2015 [166 So.3d 161], and 2018.

28.7 FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER (Siren and Lights Activated) § 316.1935(2), Fla. Stat.

To prove the crime of Fleeing to Elude a Law Enforcement Officer, the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) was operating a vehicle upon a street or highway in Florida.
2. (Defendant), knowing [he] [she] had been directed to stop by a duly authorized law enforcement officer, willfully fled in a vehicle in an attempt to elude a law enforcement officer.
3. The law enforcement officer was in an authorized law enforcement patrol vehicle with agency insignia and other jurisdictional markings prominently displayed on the vehicle and with siren and lights activated.

Definitions.

"Operator" means any person who is in actual physical control of a motor vehicle upon the highway [or who is exercising control over or steering a vehicle being towed by a motor vehicle].

Fla. Stat. § 316.003(53) , Fla. Stat.

"Street or highway" means the entire width between boundary lines of every way or place of whatever nature when any part thereof is open to the public for purposes of vehicular traffic.

Fla. Stat. § 316.003(75) , Fla. Stat.

"Vehicle" means every device, in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks.

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

"Willfully" means intentionally, knowingly, and purposely.

Lesser Included Offenses

FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER - 316.1935(2) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Fleeing to elude 316.1935(1) 28.6 Reckless Driving (if 316.192(1)(b) 28.5 there is evidence that the fleeing was in a motor vehicle) Disobedience to Police or Fire Department 316.072(3) 28.18 Officials*

Comments

For the category two lesser included offense, seeKoch v. State, 39 So.3d 464 (Fla. 2d DCA 2010).* The Second District Court of Appeal requires Disobedience to Police to be given as a lesser when the charging document tracks the Fleeing statute. See Koch v. State, 39 So.3d 464 (Fla. 2d DCA 2010); Lucas v. State, 192 So.3d 1269 (Fla. 2d DCA 2016). The Committee retained Disobedience to Police in the Category Two box, however, because Disobedience to Police requires the police order or direction to be lawful and the crime of Fleeing to Elude LEO does not contain that element. See State v. Kirer, 120 So.3d 60 (Fla. 4th DCA 2013); Jackson v. State, 463 So.2d 372 (Fla. 5th DCA 1985).

This instruction was adopted in 2000 [765 So.2d 692] and amended in 2008 [976 So.2d 1081], 2011 [73 So.3d 136], and2015 [166 So.3d 161], and 2018.

28.8 FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER (Siren and Lights Activated with High Speed or Reckless Driving) § 316.1935(3)(a), Fla. Stat.

To prove the crime of Fleeing to Elude a Law Enforcement Officer, the State must prove the following four elements beyond a reasonable doubt:

1. (Defendant) was operating a vehicle upon a street or highway in Florida.
2. (Defendant), knowing [he] [she] had been directed to stop by a duly authorized law enforcement officer, willfully fled in a vehicle in an attempt to elude a law enforcement officer.
3. The law enforcement officer was in an authorized law enforcement patrol vehicle with agency insignia and other jurisdictional markings prominently displayed on the vehicle and with siren and lights activated.
4. During the course of the fleeing or the attempt to elude, (defendant) drove at high speed or in any manner demonstrating a wanton disregard for the safety of persons or property.

Definitions.

"Operator" means any person who is in actual physical control of a motor vehicle upon the highway [or who is exercising control over or steering a vehicle being towed by a motor vehicle].

Fla. Stat. § 316.003(53) , Fla. Stat.

"Street or highway" means the entire width between boundary lines of every way or place of whatever nature when any part thereof is open to the public for purposes of vehicular traffic.

Fla. Stat. § 316.003(75) , Fla. Stat.

"Vehicle" means every device, in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks.

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

"Willfully" means intentionally, knowingly, and purposely.

Lesser Included Offenses

FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER - 316.1935(3)(a) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Fleeing to elude 316.1935(2) 28.7 Fleeing to elude 316.1935(1) 28.6 Reckless Driving (if 316.192(1) 28.5 wanton disregard for the safety of persons or property is charged or if there is evidence that the fleeing was in a motor vehicle) Disobedience to Police or Fire Department 316.072(3) 28.18 Officials*

Comments

For the category two lesser included offense, see Koch v. State, 39 So.3d 464 (Fla. 2d DCA 2010).* The Second District Court of Appeal requires Disobedience to Police to be given as a lesser when the charging document tracks the Fleeing statute. See Koch v. State, 39 So.3d 464 (Fla. 2d DCA 2010); Lucas v. State, 192 So.3d 1269 (Fla. 2d DCA 2016). The Committee retained Disobedience to Police in the Category Two box, however, because Disobedience to Police requires the police order or direction to be lawful and the crime of Fleeing to Elude LEO does not contain that element. See State v. Kirer, 120 So.3d 60 (Fla. 4th DCA 2013); Jackson v. State, 463 So.2d 372 (Fla. 5th DCA 1985).

This instruction was adopted in 2000 [765 So.2d 692] and amended in 2008 [976 So.2d 1081], 2011 [73 So.3d 136],and2015 [166 So.3d 161], and 2018.

28.8(a) FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER (Siren and Lights Activated with High Speed or Reckless Driving Causing Serious Bodily Injury or Death)

§ 316.1935(3)(b), Fla. Stat.

To prove the crime of Fleeing to Elude a Law Enforcement Officer, the State must prove the following five elements beyond a reasonable doubt:

1. (Defendant) was operating a vehicle upon a street or highway in Florida.
2. (Defendant), knowing [he] [she] had been directed to stop by a duly authorized law enforcement officer, willfully fled in a vehicle in an attempt to elude a law enforcement officer.
3. The law enforcement officer was in an authorized law enforcement patrol vehicle with agency insignia and other jurisdictional markings prominently displayed on the vehicle and with siren and lights activated.
4. During the course of the fleeing or the attempt to elude, (defendant) drove at high speed or in any manner demonstrating a wanton disregard for the safety of persons or property.
5. As a result of (defendant's) fleeing or eluding at high speed or wanton disregard for safety, [he] [she] caused [the death of] [serious bodily injury to] [another person] [a law enforcement officer involved in pursuing or otherwise attempting to stop [his] [her] vehicle].

Definitions.

"Operator" means any person who is in actual physical control of a motor vehicle upon the highway [or who is exercising control over or steering a vehicle being towed by a motor vehicle].

Fla. Stat. § 316.003(53) , Fla. Stat

"Street or highway" means the entire width between boundary lines of every way or place of whatever nature when any part thereof is open to the public for purposes of vehicular traffic.

Fla. Stat. § 316.003(75) , Fla. Stat.

"Vehicle" means every device, in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks.

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

"Willfully" means intentionally, knowingly, and purposely.

Lesser Included Offenses

FLEEING TO ELUDE A LAW ENFORCEMENT OFFICER - 316.1935(3)(b) CATEGORY CATEGORY FLA. STAT. INS. NO. ONE TWO Fleeing to elude 316.1935(3)(a) 28.8 Fleeing to elude 316.1935(2) 28.7 Fleeing to elude 316.1935(1) 28.6 Reckless Driving 316.192(1) 28.5 (if wanton disregard for the safety of persons or property is charged or if there is evidence that the fleeing is in a motor vehicle) Disobedience to Police or Fire 316.072(3) 28.18 Department Officials*

Comments

For the category two lesser included offense, see Koch v. State, 39 So.3d 464 (Fla. 2d DCA 2010).* The Second District Court of Appeal requires Disobedience to Police to be given as a lesser when the charging document tracks the Fleeing statute. See Koch v. State, 39 So.3d 464 (Fla. 2d DCA 2010); Lucas v. State, 192 So.3d 1269 (Fla. 2d DCA 2016). The Committee retained Disobedience to Police in the Category Two box, however, because Disobedience to Police requires the police order or direction to be lawful and the crime of Fleeing to Elude LEO does not contain that element. See State v. Kirer, 120 So.3d 60 (Fla. 4th DCA 2013); Jackson v. State, 463 So.2d 372 (Fla. 5th DCA 1985).

This instruction was adopted in 2008 [976 So.2d 1081] and amended in 2011 [73 So.3d 136],and2015 [166 So.3d 161], and 2018.

28.8(b) AGGRAVATED FLEEING OR ELUDING

(Leaving a Crash Involving Serious Bodily Injury, Injury or Death then Causing Serious Bodily Injury or Death)

§ 316.1935(4)(b) and § 316.027, Fla. Stat.

To prove the crime of Aggravated Fleeing or Eluding, the State must prove the following seven elements beyond a reasonable doubt:

1. (Defendant) was the driver of a vehicle involved in a crash or accident occurring on public or private property resulting in [serious bodily injury to] [injury to] [the death of] any person.
2. (Defendant) knew that [he] [she] was involved in a crash or accident.

Give 3a if death is charged or 3b if injury or serious bodily injury is charged.

3. a. (Defendant) knew, or should have known from all of the circumstances, including the nature of the crash or accident, of the injury to or death of the person.
b. (Defendant) knew, or should have known from all of the circumstances, including the nature of the crash or accident, of the injury to the person.

Give 4a or 4b or both as applicable.

4. (Defendant)
a. willfully failed to stop at the scene of the crash or accident or as close to the crash or accident as possible and remain there until [he] [she] had given identifying information to the [injured person] [driver] [occupant][person attending the vehicle or other damaged property] and to any police officer investigating the crash or accident.
[or]
b. willfully failed to render reasonable assistance to the injured person if such treatment appeared to be necessary or was requested by the injured person.
5. A duly authorized law enforcement officer ordered (defendant) to stop.
6. (Defendant), knowing [he][she] had been ordered to stop by a law enforcement officer, [willfully refused or failed to stop [his][her]vehicle in compliance with the order to stop] [and after having stopped in knowing compliance with the order to stop, willfully fled in a vehicle in an attempt to elude the law enforcement officer.]
7. As a result of (defendant) fleeing or eluding, [he] [she] caused [serious bodily injury to] [the death of] (name of victim).

§ 316.027, Fla. Stat.

A driver has the legal duty to immediately stop [his] [her] vehicle at the scene of the crash or accident or as close to the scene of the crash or accident as possible and provide "identifying information."

If the State proves beyond a reasonable doubt that the defendant willfully failed to give any part of the "identifying information" or willfully failed to give reasonable assistance, the State satisfies this element of the offense.

Enhancement. Give when the State alleged the victim was a "vulnerable road user." § 316.027(2)(f), Fla. Stat.

If you find that the State proved beyond a reasonable doubt that (defendant)committed elements #1 - #4, you must then determine whether the State also proved beyond a reasonable doubt that the [injured person] [person who died] in element #1 was:

[a pedestrian].
[actually engaged in work upon a highway].
[actually engaged in work upon utility facilities along a highway].
[engaged in the provision of emergency services within the right-of-way].
[operating a [bicycle] [motorcycle] [scooter] [moped] lawfully on the roadway].
[riding an animal].
[lawfully operating [a farm tractor or similar vehicle designed primarily for farm use] [a skateboard] [roller-skates] [in-line skates] [a horse-drawn carriage] [an electric personal assistive mobility device] [a wheelchair] on [a public right-of-way] [crosswalk] [shoulder of the roadway]].

Definitions. Give as applicable.

Gaulden v. State, 195 So.3d 1123 (Fla. 2016).

A vehicle is "involved in a crash" if it collides with another vehicle, person, or object.

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

"Willfully" means intentionally, knowingly, and purposely.

§ 316.062, Fla. Stat.

"Identifying information" means the name, address, vehicle registration number, and, if available and requested, the exhibition of the defendant's license or permit to drive.

"Reasonable assistance" includes carrying or making arrangement to carry the injured person to a physician or hospital for medical treatment.

§ 316.003(75), Fla. Stat.

"Vehicle" means every device, in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks.

§ 316.027(1)(a), Fla. Stat.

"Serious bodily injury" means an injury to a person [including the driver,] which consists of a physical condition that creates a substantial risk of death, serious disfigurement, or protracted loss or impairment of the function of a bodily member or organ.

Lesser Included Offenses

AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Death and then Causing Serious Injury Bodily Injury or Death) - 316.1935(4)(b) and 316.027(2)(c) CATEGORY ONE CATEGORY TWO FLA.STAT. INS. NO. Leaving Scene of a 316.027(2)(c) 28.4 Crash Involving Death* Leaving the Scene of 316.027(2)(b) 28.4 a Crash Involving Serious Bodily Injury* Aggravated Fleeing 316.1935(4)(a) 28.84 Leaving Scene of a 316.027(2)(a) 28.4 Crash Involving Injury* Fleeing to Elude LEO 316.1935(1) 28.6 Fleeing to Elude LEO 316.1935(3)(b) 28.81 Fleeing to Elude LEO 316.1935(3)(a) 28.8 Fleeing to Elude LEO 316.1935(2) 28.7 Reckless Driving (if 316.192(1)(b) 28.5 there was evidence that the fleeing was in a motor vehicle)
Disobedience to Police or Fire Department 316.072(3) 28.18 Officials**

Comments

* § 316.1935(4), Fla. Stat., states that a person may be charged with both Aggravated Fleeing or Eluding and Leaving the Scene of a Crash Involving Death, Serious Bodily Injury, or Injury. Therefore, if a Leaving the Scene crime is charged as a separate count, then Leaving the Scene should not be given as a lesser-included offense of Aggravated Fleeing or Eluding.

For the category two lesser included offense, see Koch v. State, 39 So.3d 464 (Fla. 2d DCA 2010).**The Second District Court of Appeal requires Disobedience to Police to be given as a lesser when the charging document tracks the Fleeing statute. See Koch v. State, 39 So.3d 464 (Fla. 2d DCA 2010); Lucas v. State, 192 So.3d 1269 (Fla. 2d DCA 2016). The Committee retained Disobedience to Police in the Category Two box, however, because Disobedience to Police requires the police order or direction to be lawful and the crime of Fleeing to Elude LEO does not contain that element. See State v. Kirer, 120 So.3d 60 (Fla. 4th DCA 2013); Jackson v. State, 463 So.2d 372 (Fla. 5th DCA 1985).

It is unclear whether the courts will interpret the statutory phrase of "involved in a crash" as including instances where the defendant's vehicle did not collide with another vehicle, person, or object, but the defendant's driving pattern caused vehicle 2 to collide with a person, an object, or vehicle 3. See State v. Elder, 975 So.2d 481 (Fla. 2d DCA 2007) (decided before Gaulden v. State, 195 So.3d 1123 (Fla. 2016)).

This instruction was adopted in 2008 [976 So.2d 1081] and amended in 2011 [73 So.3d 136], 2015 [166 So.3d 161],and2016 [192 So.3d 1190], and 2018.

28.8(c) AGGRAVATED FLEEING OR ELUDING

(Leaving a Crash Involving Damage to a Vehicle or Property then Causing Serious Bodily Injury or Death)

§ 316.1935(4)(b) and § 316.061, Fla. Stat.

To prove the crime of Aggravated Fleeing or Eluding, the State must prove the following seven elements beyond a reasonable doubt:

1. (Defendant) was the driver of a vehicle involved in a crash or accident.
2. The crash or accident resulted only in damage to a vehicle or other property.
3. The [vehicle] [other property] was [driven] [attended] by [a person] [(name of person)].
4. (Defendant) failed to stop at the scene of the crash or accident or as close to the crash or accident as possible and remain there until [he] [she] had given identifying information to the [driver or occupant of the damaged vehicle] [person attending the damaged vehicle or property] [and to any police officer at the scene of the crash or accident or who is investigating the crash or accident.
5. A duly authorized law enforcement officer ordered (defendant) to stop.
6. (Defendant), knowing [he] [she] had been ordered to stop by a law enforcement officer, [willfully refused or failed to stop [his] [her] vehicle in compliance with the order to stop] [and after having stopped in knowing compliance with the order to stop, willfully fled in a vehicle in an attempt to elude the law enforcement officer].
7. As a result of (defendant) fleeing or eluding, [he] she] caused [serious bodily injury to] [the death of] (name of victim).

If the State proves beyond a reasonable doubt that the defendant failed to give any part of the "identifying information," the State satisfies this element of the offense.

Definitions.

Gaulden v. State, 195 So.3d 1123 (Fla. 2016).

A vehicle is "involved in a crash" if it collides with another vehicle, person, or object.

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

"Willfully" means intentionally, knowingly, and purposely.

§ 316.062(1), Fla. Stat.

"Identifying information" means the name, address, vehicle registration number, and, if available and requested, the exhibition of the defendant's license or permit to drive.

§ 316.003(75), Fla. Stat.

"Vehicle" means every device, in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks.

Lesser Included Offenses

AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Damage to a Vehicle or Property then Causing Serious Bodily Injury or Death) - 316.1935(4)(b) and 316.061 CATEGORY ONE CATEGORY TWO FLA.STAT. INS. NO. Aggravated Fleeing 316.1935(4)(a) 28.85 Fleeing to Elude LEO 316.1935(1) 28.6 Leaving the Scene of a 316.061 28.4(a) Crash Involving Damage to Vehicle or Property* Fleeing to Elude LEO 316.1935(3)(b) 28.81 Fleeing to Elude LEO 316.1935(3)(a) 28.8 Fleeing to Elude LEO 316.1935(2) 28.7 Reckless Driving (if 316.192(1)(b) 28.5 there was evidence that the fleeing was in a motor vehicle) Disobedience to Police 316.072(3) 28.18 or Fire Department Officials**

Comments

* § 316.1935(4), Fla. Stat., states that a person may be charged with both Aggravated Fleeing or Eluding and Leaving the Scene of a Crash Involving Damage to Attended Property. Therefore, if Leaving the Scene is charged as a separate count, then Leaving the Scene should not be given as a lesser-included offense of Aggravated Fleeing or Eluding.

As ofSeptember 2015August 2017, there was no case law directly addressing the issue of whether the State must prove the defendant knew, or should have known, of either the crash or the property damage to violate this statute. CompareState v. Dorsett, 158 So.3d 557 (Fla. 2015), andMancuso v. State, 652 So.2d 370 (Fla. 1995), dealing with § 316.027, Fla. Stat., which, unlike § 316.061, Fla. Stat., contains an explicit willfulness requirement.

For the category two lesser included offense, see Koch v. State, 39 So.3d 464 (Fla. 2d DCA 2010).**The Second District Court of Appeal requires Disobedience to Police to be given as a lesser when the charging document tracks the Fleeing statute. See Koch v. State, 39 So.3d 464 (Fla. 2d DCA 2010); Lucas v. State, 192 So.3d 1269 (Fla. 2d DCA 2016). The Committee retained Disobedience to Police in the Category Two box, however, because Disobedience to Police requires the police order or direction to be lawful and the crime of Fleeing to Elude LEO does not contain that element. See State v. Kirer, 120 So.3d 60 (Fla. 4th DCA 2013); Jackson v. State, 463 So.2d 372 (Fla. 5th DCA 1985).

It is unclear whether the courts will interpret the statutory phrase of "involved in a crash" as including instances where the defendant's vehicle did not collide with another vehicle, person, or object, but the defendant's driving pattern caused vehicle 2 to collide with a person, an object, or vehicle 3. See State v. Elder, 975 So.2d 481 (Fla. 2d DCA 2007) (decided before Gaulden v. State, 195 So.3d 1123 (Fla. 2016)).

This instruction was adopted in 2008 [976 So.2d 1081] and amended in 2011 [73 So.3d 136], 2015 [166 So.3d 161],and2016 [192 So.3d 1190], and 2018.

28.8(d) AGGRAVATED FLEEING OR ELUDING

(Leaving a Crash Involving Serious Bodily Injury, Injury or Death then Causing Injury or Property Damage to Another)

§ 316.1935(4)(a) and § 316.027 Fla. Stat.

To prove the crime of Aggravated Fleeing or Eluding, the State must prove the following seven elements beyond a reasonable doubt:

1. (Defendant) was the driver of a vehicle involved in a crash or accident occurring on public or private property resulting in [serious bodily injury to] [injury to] [the death of] any person.
2. (Defendant) knew that [he] [she] was involved in a crash or accident.

Give 3a if death is charged or 3b if serious bodily injury or injury is charged.

3. a. (Defendant) knew, or should have known from all of the circumstances, including the nature of the crash or accident, of the injury to or death of the person.
b. (Defendant) knew, or should have known from all of the circumstances, including the nature of the crash or accident, of the injury to the person.

Give 4a or 4b or both as applicable.

4. (Defendant)
a. willfully failed to stop at the scene of the crash or accident or as close to the crash or accident as possible and remain there until [he] [she] had given identifying information to the [injured person] [driver] [occupant] [person attending the vehicle or other damaged property] and to any police officer investigating the crash or accident.
[or]
b. willfully failed to render reasonable assistance to the injured person if such treatment appeared to be necessary or was requested by the injured person.
5. A duly authorized law enforcement officer ordered (defendant) to stop.
6. (Defendant) knowing [he] [she] had been ordered to stop by a law enforcement officer, [willfully refused or failed to stop [his][her]vehicle in compliance with the order to stop][and after having stopped in knowing compliance with the order to stop, willfully fled in a vehicle in an attempt to elude the law enforcement officer.]
7. As a result of (defendant) fleeing or eluding, [he] [she] caused [an injury to] [damage to the property of] (name of victim).

§ 316.027, Fla. Stat.

A driver has the legal duty to immediately stop [his] [her] vehicle at the scene of the crash or accident or as close to the scene of the crash or accident as possible and provide "identifying information."

If the State proves beyond a reasonable doubt that the defendant willfully failed to give any part of the "identifying information" or willfully failed to give reasonable assistance, the State satisfies this element of the offense.

Enhancement. Give when the State alleged the victim was a "vulnerable road user." § 316.027(2)(f), Fla. Stat.

If you find that the State proved beyond a reasonable doubt that (defendant)committed elements #1-#4, you must then determine whether the State also proved beyond a reasonable doubt that the [injured person] [person who died] in element #1 was:

[a pedestrian].
[actually engaged in work upon a highway].
[actually engaged in work upon utility facilities along a highway].
[engaged in the provision of emergency services within the right-of-way].
[operating a [bicycle] [motorcycle] [scooter] [moped] lawfully on the roadway].
[riding an animal].
[lawfully operating [a farm tractor or similar vehicle designed primarily for farm use] [a skateboard] [roller-skates] [in-line skates] [a horse-drawn carriage] [an electric personal assistive mobility device] [a wheelchair] on [a public right-of-way]
[crosswalk] [shoulder of the roadway]].

Definitions. Give as applicable.

Gaulden v. State, 195 So.3d 1123 (Fla. 2016).

A vehicle is "involved in a crash" if it collides with another vehicle, person, or object.

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

"Willfully" means intentionally, knowingly, and purposely.

§ 316.062, Fla. Stat.

"Identifying information" means the name, address, vehicle registration number, and, if available and requested, the exhibition of the defendant's license or permit to drive.

"Reasonable assistance" includes carrying or making arrangement to carry the injured person to a physician or hospital for medical treatment.

§ 316.003(75), Fla. Stat.

"Vehicle" means every device, in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks.

§ 316.027(1)(a), Fla. Stat.

"Serious bodily injury" means an injury to a person [including the driver,] which consists of a physical condition that creates a substantial risk of death, serious disfigurement, or protracted loss or impairment of the function of a bodily member or organ.

Lesser Included Offenses AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Death and then Causing Injury or Property Damage to Another) - 316.1935(4)(a) and § 316.027(2)(c) CATEGORY ONE CATEGORY TWO FLA.STAT. INS. NO. Leaving Scene of a 316.027(2)(c) 28.4 Crash Involving Death* Leaving Scene of 316.027(2)(b) 28.4 Crash involving Serious Bodily Injury* Leaving Scene of a 316.027(2)(a) 28.4 Crash Involving Injury* Fleeing to Elude LEO 316.1935(1) 28.6 Fleeing to Elude LEO 316.1935(3)(b) 28.81 Fleeing to Elude LEO 316.1935(3)(a) 28.8 Fleeing to Elude LEO 316.1935(2) 28.7 Reckless Driving (if 316.192(1)(b) 28.5 there was evidence that the fleeing was in a motor vehicle) Disobedience to Police or Fire Department 316.072(3) 28.18 Officials**

Comments

* § 316.1935(4), Fla. Stat., states that a person may be charged with both Aggravated Fleeing or Eluding and Leaving the Scene of a Crash Involving Death, Serious Bodily Injury, or Injury. Therefore, if a Leaving the Scene crime is charged as a separate count, then Leaving the Scene should not be given as a lesser-included offense of Aggravated Fleeing or Eluding.

For the category two lesser included offense, see Koch v. State,39 So.3d 464 (Fla. 2d DCA 2010).** The Second District Court of Appeal requires Disobedience to Police to be given as a lesser when the charging document tracks the Fleeing statute. See Koch v. State, 39 So.3d 464 (Fla. 2d DCA 2010); Lucas v. State, 192 So.3d 1269 (Fla. 2d DCA 2016). The Committee retained Disobedience to Police in the Category Two box, however, because Disobedience to Police requires the police order or direction to be lawful and the crime of Fleeing to Elude LEO does not contain that element. See State v. Kirer, 120 So.3d 60 (Fla. 4th DCA 2013); Jackson v. State, 463 So.2d 372 (Fla. 5th DCA 1985).

It is unclear whether the courts will interpret the statutory phrase of "involved in a crash" as including instances where the defendant's vehicle did not collide with another vehicle, person, or object, but the defendant's driving pattern caused vehicle 2 to collide with a person, an object, or vehicle 3. See State v. Elder, 975 So.2d 481 (Fla. 2d DCA 2007) (decided before Gaulden v. State, 195 So.3d 1123 (Fla. 2016)).

This instruction was adopted in 2008 [976 So.2d 1081] and amended in 2011 [73 So.3d 136], 2015 [166 So.3d 161],and2016 [192 So.3d 1190], and 2018.

28.8(e) AGGRAVATED FLEEING OR ELUDING (Leaving a Crash Involving Damage to a Vehicle or Property then Causing Injury or Property Damage to Another) § 316.1935(4)(a) and § 316.061, Fla. Stat.

To prove the crime of Aggravated Fleeing or Eluding, the State must prove the following seven elements beyond a reasonable doubt:

1. (Defendant) was the driver of a vehicle involved in a crash or accident.
2. The crash or accident resulted only in damage to a vehicle or other property.
3. The [vehicle] [other property] was [driven] [attended] by [a person] [(name of person)].
4. (Defendant) failed to stop at the scene of the crash or accident or as close to the crash or accident as possible and remain there until [he] [she] had given identifying information to the [driver or occupant of the damaged vehicle] [person attending the damaged vehicle or property] [and to any police officer at the scene of the crash or accident or who is investigating the crash or accident].
5. A duly authorized law enforcement officer ordered (defendant) to stop.
6. (Defendant), knowing [he] [she] had been ordered to stop by a law enforcement officer, [willfully refused or failed to stop [his] [her] vehicle in compliance with the order to stop] [and after having stopped in knowing compliance with the order to stop, willfully fled in a vehicle in an attempt to elude the law enforcement officer].
7. As a result of (defendant) fleeing or eluding, [he] [she] caused [injury to] [damage to the property of] (name of victim).

If the State proves beyond a reasonable doubt that the defendant failed to give any part of the "identifying information," the State satisfies this element of the offense.

Definitions.

Gaulden v. State, 195 So.3d 1123 (Fla. 2016).

A vehicle is "involved in a crash" if it collides with another vehicle, person, or object.

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

"Willfully" means intentionally, knowingly, and purposely.

§ 316.062(1), Fla. Stat.

"Identifying information" means the name, address, vehicle registration number, and, if available and requested, the exhibition of the defendant's license or permit to drive.

§ 316.003(75), Fla. Stat.

"Vehicle" means every device, in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks.

Lesser Included Offenses AGGRAVATED FLEEING OR ELUDING (Leaving A Crash Involving Damage to a Vehicle or Property then Causing Injury or Property Damage to Another) - 316.1935(4)(a) and 316.061 CATEGORY ONE CATEGORY TWO FLA.STAT. INS. NO. Fleeing to Elude LEO 316.1935(1) 28.6 Leaving the Scene of a 316.061 28.4(a) Crash Involving Damage to Vehicle or Property* Fleeing to Elude LEO 316.1935(3)(b) 28.81 Fleeing to Elude LEO 316.1935(3)(a) 28.8 Fleeing to Elude LEO 316.1935(2) 28.7 Reckless Driving (if 316.192(1)(b) 28.5 there was evidence that the fleeing was in a motor vehicle) Disobedience to Police 316.072(3) 28.18 or Fire Department Officials**

Comments

* § 316.1935(4), Fla. Stat., states that a person may be charged with both Aggravated Fleeing or Eluding and Leaving the Scene of a Crash Involving Damage to Attended Property. Therefore, if Leaving the Scene is charged as a separate count, then Leaving the Scene should not be given as a lesser-included offense of Aggravated Fleeing or Eluding.

As ofSeptember 2015August 2017, there was no case law directly addressing the issue of whether the State must prove the defendant knew, or should have known, of either the crash or the property damage to violate this statute. CompareState v. Dorsett, 158 So.3d 557 (Fla. 2015), andMancuso v. State, 652 So.2d 370 (Fla. 1995), dealing with § 316.027, Fla. Stat., which, unlike § 316.061, Fla. Stat., contains an explicit willfulness requirement.

For the category two lesser included offense, see Koch v. State,39 So.3d 464 (Fla. 2d DCA 2010).** The Second District Court of Appeal requires Disobedience to Police to be given as a lesser when the charging document tracks the Fleeing statute. See Koch v. State, 39 So.3d 464 (Fla. 2d DCA 2010); Lucas v. State, 192 So.3d 1269 (Fla. 2d DCA 2016). The Committee retained Disobedience to Police in the Category Two box, however, because Disobedience to Police requires the police order or direction to be lawful and the crime of Fleeing to Elude LEO does not contain that element. See State v. Kirer, 120 So.3d 60 (Fla. 4th DCA 2013); Jackson v. State, 463 So.2d 372 (Fla. 5th DCA 1985).

It is unclear whether the courts will interpret the statutory phrase of "involved in a crash" as including instances where the defendant's vehicle did not collide with another vehicle, person, or object, but the defendant's driving pattern caused vehicle 2 to collide with a person, an object, or vehicle 3. See State v. Elder, 975 So.2d 481 (Fla. 2d DCA 2007) (decided before Gaulden v. State, 195 So.3d 1123 (Fla. 2016)).

This instruction was adopted in 2008 [976 So.2d 1081] and amended in 2011 [73 So.3d 136], 2015 [166 So.3d 161],and2016 [192 So.3d 1190], and 2018.

      Comments to the instructions also are amended based upon the Committee's proposals but are not discussed, as we caution all interested parties that any comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability.

      The 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: PER CURIAM. PARIENTE, J., dissenting.

text:
    Richard Eugene HAMILTON, Appellant, v. STATE of Florida, Appellee.
    No. SC17-42
    Supreme Court of Florida.
    [February 8, 2018]
    Robert S. Friedman, Capital Collateral Regional Counsel, Karin L. Moore and Stacy R. Biggart, Assistant Capital Collateral Regional Counsel, Northern Region, Tallahassee, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, and Jennifer L. Keegan, Assistant Attorney General, Tallahassee, Florida, for Appellee
    Billy H. Nolas, Chief, Capital Habeas Unit, Office of the Federal Public Defender, Northern District of Florida, Tallahassee, Florida, Amicus Curiae The Capital Habeas Unit of the Office of the Federal Public Defender for the Northern District of Florida
   PER CURIAM.

Richard Eugene Hamilton, a prisoner under sentence of death, appeals the circuit court's orders summarily denying his successive motion for postconviction relief, which was filed under Florida Rule of Criminal Procedure 3.851, and his demands for additional public records, which were filed under Florida Rule of Criminal Procedure 3.852. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

I. BACKGROUND

Hamilton was convicted of the 1994 first-degree murder, armed sexual battery, armed robbery, and armed kidnapping of Carmen Gayheart. Hamilton v. State , 703 So.2d 1038, 1040 (Fla. 1997), cert. denied , 524 U.S. 956, 118 S.Ct. 2377, 141 L.Ed.2d 744 (1998). We affirmed Hamilton's convictions and sentence of death on direct appeal. Id. at 1045. We thereafter affirmed the denial of his initial motion for postconviction relief and denied his petition for a writ of habeas corpus. Hamilton v. State , 875 So.2d 586, 589 (Fla. 2004).

Between January and April 2016, Hamilton filed demands for additional public records under rule 3.852(i) relating to his representation by predecessor postconviction counsel and the judicial candidacy and tenure as a circuit court judge of the Honorable E. Vernon Douglas, who oversaw Hamilton's trial and initial postconviction proceedings. The postconviction court concluded that Hamilton's demands for these additional public records were "of questionable relevance and unlikely to lead to discoverable evidence" and denied the requests.

On June 6, 2016, Hamilton filed a petition in this Court for a writ of habeas corpus, claiming that he was entitled to relief under the United States Supreme Court's decision in Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). We denied the habeas petition on March 3, 2017, citing Asay v. State , 210 So.3d 1, 22 (Fla. 2016) (holding that Hurst does not apply retroactively to sentences of death that became final before the Supreme Court issued its 2002 decision in Ring v. Arizona , 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) ), cert. denied , --- U.S. ----, 138 S.Ct. 41, 198 L.Ed.2d 769 (2017). Hamilton v. Jones , No. SC16-984, 2017 WL 836807, at *1 (Fla. Mar. 3, 2017).

On August 24, 2016, while Hamilton's petition for a writ of habeas corpus was still pending in this Court, Hamilton filed a successive postconviction motion in the circuit court. In his successive motion, Hamilton argued that (1) he is entitled to a new postconviction proceeding due to the institutional failure of the trial court, the State, and the Florida Supreme Court that resulted in a violation of his state and federal constitutional rights and (2) his death sentence is unconstitutional under Hurst v. Florida . The postconviction court summarily denied the successive motion, concluding that it was "untimely as it was submitted eighteen years after the mandate issued and that none of the three articulated exceptions [in rule 3.851 ] apply." Hamilton now appeals the denial of his successive postconviction motion and the denial of his demands for additional public records.

II. ANALYSIS

A. Successive Motion

A motion for postconviction relief must be filed within one year of the date the defendant's conviction and sentence become final. Fla. R. Crim. P. 3.851(d)(1). Hamilton's convictions and sentences became final when the United States Supreme Court denied certiorari review of the direct appeal proceedings on June 26, 1998. Hamilton v. Florida , 524 U.S. 956, 118 S.Ct. 2377, 141 L.Ed.2d 744 (1998) ; see Fla. R. Crim. P. 3.851(d)(1)(B) ("For the purposes of this rule, a judgment is final ... on the disposition of the petition for writ of certiorari by the United States Supreme Court, if filed."). The one-year time limitation therefore expired in 1999.

There are exceptions to the one-year time limitation for motions alleging:

(A) the facts on which the claim is predicated were unknown to the movant or the movant's attorney and could not have been ascertained by the exercise of due diligence, or
(B) the fundamental constitutional right asserted was not established within the period provided for in subdivision (d)(1) and has been held to apply retroactively, or
(C) postconviction counsel, through neglect, failed to file the motion.

Fla. R. Crim. P. 3.851(d)(2). Hamilton argues that his Hurst claim was timely because it was raised within one year of the Supreme Court's decision in Hurst v. Florida , but Hamilton is incorrect. The relevant time in which to file a claim based on a new fundamental constitutional right is one year from the date of the decision announcing that the right applies retroactively. See Dixon v. State , 730 So.2d 265, 267 (Fla. 1999) (stating that the basis for calculating a cut-off period for postconviction claims based on a fundamental constitutional right is the date of the issuance of the mandate in the case in which this Court announces retroactivity). But Hurst has never been held to be retroactive to defendants in Hamilton's position. To the contrary, we have expressly held that Hurst does not apply retroactively to defendants whose convictions and sentences were final prior to the issuance of Ring in 2002. Hitchcock v. State , 226 So.3d 216, 217 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017) ; Asay , 210 So.3d at 22.

Accordingly, because Hamilton's successive motion was filed after the expiration of the one-year time limitation and none of the exceptions to the one-year time limitation in rule 3.851(d)(2) are applicable to either of the claims raised by Hamilton in his successive postconviction motion, the postconviction court properly denied the successive motion as untimely. See Fla. R. Crim. P. 3.851(d)(2) (stating that no motion filed beyond the one-year time limitation shall be considered unless it alleges that one of the three exceptions to the one-year time bar applies).

B. Demands for Additional Public Records

We review the denial of motions for additional public records made under rule 3.852 for an abuse of discretion. Pardo v. State , 108 So.3d 558, 565 (Fla. 2012). Under rule 3.852(i), a

trial court may order a person or agency to produce additional public records only upon finding each of the following:
(A) collateral counsel has made a timely and diligent search of the records repository;
(B) collateral counsel's affidavit identifies with specificity those additional public records that are not at the records repository;
(C) the additional public records sought are either relevant to the subject matter of a proceeding under rule 3.851 or appear reasonably calculated to lead to the discovery of admissible evidence; and
(D) the additional public records request is not overly broad or unduly burdensome.

Fla. R. Crim. P. 3.852(i)(2). We have held that circuit courts have discretion to deny public records requests that are "overly broad, of questionable relevance, and unlikely to lead to discoverable evidence," Moore v. State , 820 So.2d 199, 204 (Fla. 2002), and that "a defendant bears the burden of demonstrating that the records sought relate to a colorable claim for postconviction relief," Chavez v. State , 132 So.3d 826, 829 (Fla. 2014) (citing Mann v. State , 112 So.3d 1158, 1163 (Fla. 2013) ).

Here the trial court made a specific finding that Hamilton's requests were "of questionable relevance and unlikely to lead to discoverable evidence." Hamilton does not explain why he believes the trial court abused its discretion in denying his requests; he appears to simply disagree with the trial court's conclusion. We find no abuse of discretion in the denial of the requests and conclude that Hamilton has failed to meet his burden to demonstrate that the records sought relate to a colorable claim for postconviction relief. Hamilton is therefore not entitled to relief on this claim.

III. CONCLUSION

For these reasons, we affirm the circuit court's orders denying Hamilton's successive motion for postconviction relief and denying his demands for additional public records.

It is so ordered.

LABARGA, C.J., and LEWIS, POLSTON, and LAWSON, JJ., concur.

QUINCE and CANADY, JJ., concur in result.

PARIENTE, J., dissents with an opinion.

PARIENTE, J., dissenting.

I dissent because I would grant Hamilton a new penalty phase in light of Hurst . Also, I write to address the majority's discussion and denial of relief based on timeliness, which is both unnecessary and, more importantly, relies on reasoning that is legally unsound. In my previous dissents, I have explained why fundamental fairness dictates that all capital defendants should be provided a new penalty phase pursuant to Hurst where there is a nonunanimous jury recommendation for death.

Hamilton was sentenced to death after the jury recommended a sentence of death by a vote of ten to two. Hamilton v. State , 703 So.2d 1038, 1040 (Fla. 1997), cert. denied , 524 U.S. 956, 118 S.Ct. 2377, 141 L.Ed.2d 744 (1998). His sentence became final in 1998. Id. I would apply Hurst retroactively to Hamilton's sentence and, based on the jury's nonunanimous recommendation for death, would vacate the sentence of death and grant a new penalty phase. I note that this Court already denied Hamilton's prior petition for a writ of habeas corpus requesting Hurst relief, where I concurred in result based on this Court's precedent in Asay V . Hamilton v. Jones , No. SC16-984, 2017 WL 836807 (Fla. order issued Mar. 3, 2017). However, since Asay V , this Court has further denied the retroactive application of Hurst to pre-2002 defendants without properly addressing defendants' Eighth Amendment claims and allowed three executions to proceed; I have dissented from all of those decisions.

Over and over, the United States Supreme Court and this Court have made clear that "the critical linchpin of the constitutionality of the death penalty is that it be imposed in a reliable and not arbitrary manner." Asay VI , 224 So.3d at 708 & n.8 (Pariente, J., dissenting) (citing Gregg v. Georgia , 428 U.S. 153, 188, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) ; Glossip v. Gross , ---U.S. ----, 135 S.Ct. 2726, 2760-62, 192 L.Ed.2d 761 (2015) (Breyer, J., dissenting) ); accord Hurst , 202 So.3d at 59-60 ; see generally Furman v. Georgia , 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). As I have expressed several times, the Court's retroactivity cut-off of Ring v. Arizona , 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), results in unconstitutional arbitrariness in the imposition of the death penalty. Likewise, Judge Martin of the United States Court of Appeals for the Eleventh Circuit recently stated that "it is arbitrary in the extreme to [distinguish] between people on death row based on nothing other than the date when the constitutional defect in their sentence occurred." Hannon v. Sec'y, Fla. Dept. of Corrs. , No. 17-14935, --- Fed.Appx. ----, ----, 2017 WL 5177614, at *3 (11th Cir. Nov. 8, 2017) (Martin, J., concurring).

Comparing Hamilton's case with death row inmate Charles Anderson's, for example, demonstrates this unconstitutional arbitrariness. The crimes for which Charles Anderson was sentenced to death occurred on January 16, 1994, three months before the crimes in Hamilton's case. Anderson v. State , 841 So.2d 390, 395 (Fla. 2003). While Hamilton's sentence became final in 1998, Anderson's sentence did not become final until 2003. Thus, Anderson received Hurst relief, whereas Hamilton is not even entitled to review of this claim, as the per curiam opinion concludes. Anderson v. State , 220 So.3d 1133, 1150 (Fla. 2017).

Like most defendants whose death sentences have been reviewed by this Court since Hurst v. Florida and Hurst , Hamilton also raises a claim for relief pursuant to Caldwell v. Mississippi , 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). In Caldwell , the United States Supreme Court held that it is "constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." 472 U.S. at 328-29, 105 S.Ct. 2633. The Court explained:

In evaluating the various procedures developed by States to determine the appropriateness of death, this Court's Eighth Amendment jurisprudence has taken as a given that capital sentencers would view their task as the serious one of determining whether a specific human being should die at the hands of the State. ... Belief in the truth of the assumption that sentencers treat their power to determine the appropriateness of death as an "awesome responsibility" has allowed this Court to view sentencer discretion as consistent with-and indeed as indispensable to-the Eighth Amendment's "need for reliability in the determination that death is the appropriate punishment in a specific case." Woodson v. North Carolina , [428 U.S. 280] at 305 [96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) ] (plurality opinion).
....
In the capital sentencing context there are specific reasons to fear substantial unreliability as well as bias in favor of death sentences when there are state-induced suggestions that the sentencing jury may shift its sense of responsibility to an appellate court.
....
This Court has always premised its capital punishment decisions on the assumption that a capital sentencing jury recognizes the gravity of its task and proceeds with the appropriate awareness of its "truly awesome responsibility." In this case, the State sought to minimize the jury's sense of responsibility for determining the appropriateness of death. Because we cannot say that this effort had no effect on the sentencing decision, that decision does not meet the standard of reliability that the Eighth Amendment requires .

Id. at 329-41, 105 S.Ct. 2633 (emphasis added). Based on this lack of reliability, the Supreme Court vacated the sentence of death. Id. at 341, 105 S.Ct. 2633.

Florida's pre- Hurst jury instructions referred to the advisory nature of the jury's recommendation over a dozen times. See Fla. Std. Jury Instr. (Crim.) 7.11 (2016). Further, the jury was only required to make a recommendation between life or death to the trial court, which then held the ultimate responsibility of making the requisite factual findings and determining the appropriate sentence. Thus, it was made abundantly clear to the jury that they were not responsible for rendering the final sentencing decision. Caldwell , which was decided seventeen years before Ring , further supports the conclusion that defendants whose sentences were imposed after a jury nonunanimously recommended a sentence of death should be eligible for Hurst relief to avoid unconstitutional arbitrariness and ensure reliability in imposing the death penalty.

Finally, as to the timeliness of Hamilton's motion, the per curiam opinion concludes that "the expiration of the one-year time limitation" for Hamilton to file his motion under Florida Rule of Criminal Procedure 3.851 expired in 1999, "and none of the exceptions to the one-year limitation in rule 3.851(d)(2) are applicable to either of the claims" he raises in his motion. Per curiam op. at 278. However, this conclusion is inaccurate in light of Hurst v. Florida and Hurst .

The United States Supreme Court decided Hurst v. Florida on January 12, 2016, establishing a "fundamental constitutional right." Fla. R. Crim. P. 3.851(d)(2)(B). Hamilton filed the motion at issue on August 24, 2016-before this Court's decision in Hurst on October 14, 2016, and before this Court's decisions in Asay V and Mosley v. State , 209 So.3d 1248 (Fla. 2016), regarding the retroactivity of Hurst v. Florida and Hurst . See per curiam op. at 278-79. In fact, at a case management hearing in November 2016-before Asay V and Mosley -the defense moved for a continuance in anticipation of this Court's ruling regarding the retroactivity of the Hurst decision. The circuit court denied the continuance and denied Hamilton's successive postconviction motion as untimely.

Based on the date of the United States Supreme Court's decision in Hurst v. Florida and the circuit court's denial of Hamilton's request for a continuance to wait for this Court's ruling on retroactivity, Hamilton's motion was well within the one-year time period for filing a claim under rule 3.851 based on "the fundamental constitutional right" announced in Hurst v. Florida , which "was not established within" the one-year time limitation that expired in 1999. Fla. R. Crim. P. 3.851(d)(2)(B). This Court cannot determine that Hamilton's motion was untimely now that it knows it denied retroactive application of Hurst to cases like Hamilton's when the motion was filed and heard by the circuit court before retroactivity was denied.

CONCLUSION

Hamilton should not be denied relief of the fundamental constitutional right announced in Hurst v. Florida and Hurst based on untimeliness. Further, to ensure reliability and protect Hamilton's fundamental constitutional rights, I would apply Hurst retroactively to his sentence and reverse for a new penalty phase based on the jury's nonunanimous recommendation for death. Accordingly, I dissent.

      Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017) ; see Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016).

      Hannon v. State , 228 So.3d 505, 514 (Fla. 2017) (Pariente, J., dissenting); Lambrix v. State , 227 So.3d 112, 114-15 (Fla. 2017) (Pariente, J., dissenting); Asay v. State (Asay VI ), 224 So.3d 695, 703-09 (Fla. 2017) (Pariente, J., dissenting); Hitchcock v. State , 226 So.3d 216, 220-23 (Fla.) (Pariente, J., dissenting), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017) ; see also Asay v. State (Asay V ), 210 So.3d 1, 32-37 (Fla. 2016) (Pariente, J., concurring in part and dissenting in part), cert. denied , --- U.S. ----, 138 S.Ct. 41, 198 L.Ed.2d 769 (2017).

      See Hannon , 228 So.3d at 514 (Pariente, J., dissenting); Lambrix , 227 So.3d at 114-15 (Pariente, J., dissenting); Asay VI , 224 So.3d at 703-09 (Pariente, J., dissenting); Hitchcock , 226 So.3d at 220-23 (Pariente, J., dissenting).