text:
    IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES-REPORT 2017-10.
    No. SC17-2263
    Supreme Court of Florida.
    September 27, 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
    Carlos J. Martinez, Public Defender, and John Eddy Morrison, Assistant Public Defender, Eleventh Judicial Circuit, Miami, Florida, Responding with Comments
   PER CURIAM.

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

The Committee proposes amending standard jury instructions 10.1 (Carrying a Concealed [Weapon] [Firearm] ), 10.5 (Improper Exhibition of a [Weapon] [Firearm] ), and 13.5 (Trespass on School Property with a [Firearm] [Weapon] ), and new instruction 10.6(b) (Driver or Owner of a Vehicle Knowingly Directing Another to Discharge a Firearm from the Vehicle).

The Committee published its proposals pertaining to instructions 10.1, 10.5, and 10.6(b) in the January 1, 2017, issue of The Florida Bar News. The Committee received a comment from the Florida Association of Criminal Defense Lawyers (FACDL) and the Florida Public Defender Association (FPDA) pertaining to the proposals. The proposal to amend instruction 13.5 was published in the October 1, 2017, edition of The Florida Bar News. The Committee's proposals subsequently were published by the Court, appearing in the February 1, 2018, edition of The Florida Bar News. FPDA filed a comment with the Court pertaining to the Committee's proposal to amend instruction 13.5. The more significant amendments to the instructions are discussed below.

Criminal jury instruction 10.1 (Carrying a Concealed [Weapon] [Firearm] ) is amended to include a third element that requires the State to prove that the defendant did not have a license to carry a concealed weapon or firearm at the time he or she did the carrying. The Committee explains that the reason for the amendment is because chapter 2015-44, section 1, Laws of Florida, deleted licensure from section 790.01(3), Florida Statutes (2016), and added the language "a person who is not licensed under section 790.06" into the text containing the elements of carrying a concealed weapon and carrying a concealed firearm under sections 790.01(1) and (2), Florida Statutes (2016), respectively. Additionally, chapter 2015-44, section 1, Laws of Florida, changed the name of section 790.01, Florida Statutes (2016), to "Unlicensed Carrying of Concealed Weapons or Concealed Firearms." (Emphasis added.)

Amended instruction 10.1 also includes alternative burdens of proof, depending upon whether the State or the defendant carries the burden of persuasion. The term "slungshot" is deleted from the definition of "concealed weapon" in section 790.001(3)(a), Florida Statutes (2017), because that type of weapon was removed from the statute by chapter 2016-106, section 2, Laws of Florida. Finally, the statutory citation in the definition section of the instruction, pertaining to "firearm," is corrected to cite to section 790.001(6), Florida Statutes (2017), rather than subsection (2).

Instructions 10.5 (Improper Exhibition of a [Weapon] [Firearm] ) and 13.5 (Trespass on School Property with a [Firearm] [Weapon] ) are amended to exclude the word "closed" in the phrase "closed common pocketknife" due to conflict in the district courts of appeal regarding whether an open common pocketknife is a weapon pursuant to the definition provided under section 790.001(13), Florida Statutes (2017).

New standard criminal jury instruction 10.6(b) (Driver or Owner of a Vehicle Knowingly Directing Another to Discharge a Firearm from the Vehicle) is added because there is no existing instruction for the offense defined in section 790.15(3), Florida Statutes (2017). The instruction includes two elements: (1) the defendant is the driver or owner of the vehicle; and (2) the defendant knowingly directs another to discharge a firearm from that vehicle. Additionally, after consideration of a comment submitted by FPDA, the definition section of the instruction reads "the term 'firearm' does not include an antique firearm unless the antique firearm is used in the commission of another crime." This language is included in response to the statutory exemption in section 790.001(6), Florida Statutes (2017), to exclude antique firearms from the statutory definition of firearms unless the antique firearm is used in the commission of "a crime." The Committee reasons that providing the words "another crime" rather than "a crime" can prevent the potential for courts to treat a discharge of a firearm in the same manner as a firearm offense that consisted solely of carrying or possessing a firearm.

Having considered the Committee's report and the comments submitted to the Committee and filed with the Court, and the Committee's response to the comments, the amended and new criminal jury instructions, as set forth in the appendix to this opinion, are hereby authorized for publication and use. New language is indicated by underlining; 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. We further caution all interested parties that any comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. The instructions as set forth in the appendix shall be effective when this opinion becomes final.

It is so ordered.

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

APPENDIX

10.1 UNLICENSED CARRYING A CONCEALED [WEAPON] [FIREARM]

§ 790.01, Fla. Stat.

To prove the crime of Unlicensed Carrying a Concealed [Weapon] [Firearm], the State must prove the following two three * elements beyond a reasonable doubt:

1. (Defendant) knowingly carried on or about [his] [her] person [a firearm] [a weapon] [a electric weapon or device].
2. The [firearm] [weapon] [electric weapon or device] was concealed from the ordinary sight of another person.
3.* At that time, (defendant) was not licensed to carry a concealed [weapon] [electric weapon] [firearm].

Ensor v. State, 403 So.2d 349 (Fla. 1981); Dorelus v. State, 747 So.2d 368 (Fla. 1999).

The term "on or about [his] [her] person" means physically on the person or readily accessible to [him] [her].

The term "ordinary sight of another person" means the casual and ordinary observation of another in the normal associations of life. A [firearm] [weapon] need not be completely hidden for you to find that it was concealed. However, a [firearm] [weapon] is not concealed if, although not fully exposed, its status as a [firearm] [weapon] is detectable by ordinary observation.

Definition. Give as applicable. § 790.001, Fla. Stat.

§ 790.001(3)(a), Fla. Stat.

A "concealed weapon" means any dirk, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon carried on or about a person in such manner as to conceal the weapon from the ordinary sight of another person.

R.R. v. State, 826 So.2d 465 (Fla. 5th DCA 2002); Cook v. Crosby, 914 So.2d 490 (Fla. 1st DCA 2005).

A "deadly weapon" is any instrument which will likely cause death or great bodily harm when used in the ordinary and usual manner contemplated by its design and construction. An object can be a deadly weapon if its sole modern use is to cause great bodily harm. An object not designed for use as a weapon may nonetheless be a deadly weapon if its use, intended use, or threatened use by the defendant was in a manner likely to inflict death or great bodily harm.

§ 790.001(14), Fla. Stat.

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

§ 790.001(6), Fla. Stat.

A "firearm" means any weapon [including a starter gun] which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; [the frame or receiver of any such weapon;] [any firearm muffler or firearm silencer;] [any destructive device;] [any machine gun]. [The term "firearm" does not include an antique firearm unless the antique firearm is used in the commission of another crime. An antique firearm is (insert definition in 790.001(1), Fla. Stat. ] [A destructive device is (insert definition in § 790.001(4), Fla. Stat. ].

State of emergency. § 790.01(3)(a), Fla. Stat. The statute and case law are silent as to: (1) which party bears the burden of persuasion of the 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 affirmative defenses by a preponderance of the evidence. 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 opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance.

It is a defense to the charge of Unlicensed Carrying a Concealed [Weapon] [Firearm] if a person [carries a concealed weapon] [who may lawfully possess a firearm, carries a concealed firearm] on or about [his] [her] person, while in the act of evacuating during a mandatory evacuation order issued during a state of emergency declared by [the governor under Chapter 252 of Florida Statutes] [a local authority under Chapter 870 of Florida Statutes].

"In the act of evacuating" means the immediate and urgent movement of a person away from the evacuation zone within 48 hours after a mandatory evacuation is ordered. [The 48 hours may be extended by an order issued by the Governor.]

If burden of persuasion is on the defendant:

If you find that defendant proved (insert appropriate burden of persuasion) that, at the time of the carrying, [he] [she] was in the act of evacuating during a mandatory evacuation order issued during a state of emergency that had been declared by [the governor under Chapter 252 of Florida Statutes] [a local authority under Chapter 870 of Florida Statutes], you should find [him] [her] not guilty.

If the defendant did not prove (insert appropriate burden of persuasion) that, at the time of the carrying, [he] [she] was in the act of evacuating during a mandatory evacuation order issued during a state of emergency that had been declared by [the governor under Chapter 252 of Florida Statutes] [a local authority under Chapter 870 of Florida Statutes], 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, at the time of the carrying, the defendant was not in the act of evacuating during a mandatory evacuation order issued during a state of emergency that had been declared by [the governor under Chapter 252 of Florida Statutes] [a local authority under Chapter 870 of Florida Statutes], you should find [him] [her] guilty, if all the elements of the charge have been proven beyond a reasonable doubt.

If you find that the State failed to prove (insert appropriate burden of persuasion) that, at the time of the carrying, the defendant was not in the act of evacuating during a mandatory evacuation order issued during a state of emergency that had been declared by [the governor under Chapter 252 of Florida Statutes] [a local authority under Chapter 870 of Florida Statutes], you should find [him] [her] not guilty.

§ 790.01(3)(b), 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 affirmative defenses by a preponderance of the evidence. 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 opinion in Dixon v. United States, 548 U.S. 1 (2006), for further guidance. Also, judges can insert the appropriate "burden of persuasion" language from the "state of emergency' defense section above.

It is a defense for a person who carries for purposes of lawful self-defense, in a concealed manner:

1. A self-defense chemical spray.
2. A nonlethal stun gun or dart-firing stun gun or other nonlethal electric weapon or device that is designed solely for defensive purposes.
Lesser Included Offenses UNLICENSED CARRYING A CONCEALED [WEAPON] OR [FIREARM] - 790.01(1) and (2) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None Attempt 777.04(1) 5.1

Comments

*In Chapter 2015-44, Laws of Florida, the Legislature amended § 790.01, Fla. Stat. in a way that likely makes absence of a license an element of the crime. Prior to this statutory amendment, licensure was an affirmative defense. Mackey v. State, 124 So.3d 176 (Fla. 2013). The Committee on Standard Jury Instructions in Criminal Cases believes Mackey was probably abrogated by the 2015 change to the statute.

SeeSee § 790.25(5), Fla. Stat. for the defense for adults who carry weapons for self-defense or another lawful purpose within the interior of a private conveyance if securely encased or otherwise not readily accessible for immediate use.

SeeSee Santiago v. State, 77 So.3d 874 (Fla. 4th DCA 2012) for the law on carrying a concealed weapon within one's own home.

See § 790.06, Fla. Stat. for the definition of license to carry a concealed weapon or firearm.

This instruction was adopted in 1981 and was amended in 1989,and 2013 [131 So.3d 720], and 2018.

10.5 IMPROPER EXHIBITION OF A [WEAPON] [FIREARM]

§ 790.10, Fla. Stat.

To prove the crime of Improper Exhibition of a [Weapon] [Firearm], the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) had or carried [a weapon] [a firearm] [a dirk] [a sword] [a sword cane] [an electric weapon or device].
2. (Defendant) exhibited the [weapon] [firearm] [dirk] [sword] [sword cane] [electric weapon or device] in a [rude] [careless] [angry] [or] [threatening] manner.
3. [He] [She] did so in the presence of one or more persons.

Defense.

If you find that the defendant exhibited the [weapon] [firearm] [dirk] [sword] [sword cane] [electric weapon or device] in necessary self-defense, you must find [him] [her] not guilty. Read appropriate self-defense instruction.

Give as applicable.

Definitions.

§ 790.001(13), Fla. Stat., and Porter v. State, 798 So.2d 855 (Fla. 5th DCA 2001). "Slungshot" is defined in § 790.001(12), Fla. Stat.

A "weapon" is any dirk, knife, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a closed common pocketknife, plastic knife, or blunt-bladed table knife.

There is a conflict within the district courts about whether an open common pocketknife is a weapon:

Give if applicable. Porter v. State, 798 So.2d 855 (Fla. 5th DCA 2001) ; J.R.P. v. State, 979 So.2d 1178 (Fla. 3d DCA 2008).

However, an open pocketknife could constitute a weapon.

Give if applicable. G.R.N. v. State, 220 So.3d 1267 (Fla. 4th DCA 2017).

If a common pocketknife is open, it is still considered to be a common pocketknife.

R.R. v. State, 826 So.2d 465 (Fla. 5th DCA 2002); Cook v. Crosby, 914 So.2d 490 (Fla. 1st DCA 2005).

A "deadly weapon" is any instrument which will likely cause death or great bodily harm when used in the ordinary and usual manner contemplated by its design and construction. An object can be a deadly weapon if its sole modern use is to cause great bodily harm. An object not designed for use as a weapon may nonetheless be a deadly weapon if its use, intended use, or threatened use by the defendant was in a manner likely to inflict death or great bodily harm.

§ 790.001(14), Fla. Stat.

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

§ 790.001(6), Fla. Stat.

A "firearm" means any weapon [including a starter gun] which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; [the frame or receiver of any such weapon;] [any firearm muffler or firearm silencer;] [any destructive device;] [any machine gun]. [The term "firearm" does not include an antique firearm unless the antique firearm is used in the commission of another crime. An antique firearm is (insert definition in 790.001(1), Fla. Stat. ][A destructive device is (insert definition in § 790.001(4), Fla. Stat. ].

Lesser Included Offenses

IMPROPER EXHIBITION OF A WEAPON OR FIREARM - 790.10 CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None Attempt 777.04(1) 5.1 Assault 784.011 8.1

Comments

*A claim that a firearm is an antique firearm is an affirmative defense. State v. Thompson, 390 So.2d 715 (Fla. 1980). It is undecided whether a defendant must prove by a preponderance of the evidence the firearm was an antique firearm or whether the state must prove the firearm was not an antique firearm

This instruction was adopted in 1981 and amended in 2013 [131 So.3d 720], and 2016 [195 So.3d 356], and 2018.

10.6(b) DRIVER OR OWNER OF A VEHICLE KNOWINGLY DIRECTING ANOTHER TO DISCHARGE A FIREARM FROM THE VEHICLE

§ 790.15(3), Fla. Stat.

To prove the crime of Driver or Owner of a Vehicle Knowingly Directing Another to Discharge a Firearm from the Vehicle, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) was the driver or owner of a vehicle.

2. (Defendant) knowingly directed [another] [(person alleged)] to discharge a firearm from that vehicle.

Give if applicable.

It is not necessary for the State to prove that the owner of the vehicle occupied the vehicle at the time of discharge.

Definitions.

§ 790.001(6), Fla. Stat.

A "firearm" is legally defined as any weapon, including a starter gun, which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; any destructive device; or any machine gun. [The term "firearm" does not include an antique firearm unless the antique firearm is used in the commission of another crime.] See § 790.001(1), Fla. Stat., for the definition of "antique firearm" and § 790.001(4), Fla. Stat., for the definition of "destructive device."

Optional Definitions. Shaw v. State, 510 So.2d 349 (Fla. 2d DCA 1987).

"Knowingly" means with actual knowledge and understanding of the facts or the truth.

"Knowingly" means an act done voluntarily and intentionally and not because of mistake or accident or other innocent reason.

Lesser Included Offense DRIVER OR OWNER OF A VEHICLE KNOWINGLY DIRECTING ANOTHER TO DISCHARGE A FIREARM FROM THE VEHICLE - 790.15(3) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None Attempt 777.04(1) 5.1

Comments

As of February 2018, it was undecided whether the courts would use the definitions of "driver" and "vehicle" in § 316.003, Florida Statutes, for this crime.

This instruction was adopted in 2018.

13.5 TRESPASS ON SCHOOL PROPERTY WITH A [FIREARM] [WEAPON]

§ 810.095(1), Fla. Stat.

To prove the crime of Trespass on School Property with a [Firearm] [Weapon], the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) [entered] [remained] on school property.
Give 2a, 2b, and/or 2c as applicable.
2. a. (Defendant) did not have any legitimate business on the school property or any other authorization, license, or invitation to enter upon the school property.
b. (Defendant) had been authorized, licensed, or invited to enter the school property but then refused to depart when told to do so by [the principal] [the principal's designee].
c. (Defendant) was a student under suspension or expulsion at the time [he] [she] [entered] [remained] on the school property.
3. At the time (defendant) was on the school property, [he] [she] brought onto or was in possession of a [firearm] [weapon].
Definitions. Give as applicable.
Fla. Stat. § 810.095(2), Fla. Stat.

"School property" means the grounds or facility of any kindergarten, elementary school, middle school, junior high school, secondary school, career center or postsecondary school, whether public or nonpublic.

Fla. Stat. § 790.001(13) , Fla. Stat. "Slungshot" is defined in § 790.001(12), Fla. Stat.

"Weapon" means any dirk, knife, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a closed common pocketknife, plastic knife, or blunt-bladed table knife.

There is a conflict within the district courts about whether an open common pocketknife is a weapon:

Give if applicable. Porter v. State, 798 So.2d 855 (Fla. 5th DCA 2001); J.R.P. v. State, 979 So.2d 1178 (Fla. 3d DCA 2008).

However, an open pocketknife could constitute a weapon.

Give if applicable. G.R.N. v. State, 220 So.3d 1267 (Fla. 4th DCA 2017).

If a common pocketknife is open, it is still considered to be a common pocketknife.

R.R. v. State, 826 So.2d 465 (Fla. 5th DCA 2002); Cook v. Crosby, 914 So.2d 490 (Fla. 1st DCA 2005).

A "deadly weapon" is any instrument which will likely cause death or great bodily harm when used in the ordinary and usual manner contemplated by its design and construction. An object can be a deadly weapon if its sole modern use is to cause great bodily harm. An object not designed for use as a weapon may nonetheless be a deadly weapon if its use, intended use, or threatened use by the defendant was in a manner likely to inflict death or great bodily harm.

Fla. Stat. § 790.001(6) , Fla. Stat.

"Firearm" means any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon, any firearm muffler or firearm silencer; any destructive device; any machine gun. [The term "firearm" does not include an antique firearm unless the antique firearm is used in the commission of a crime.] See Fla. Stat. § 790.001(1) for the definition of antique firearm .

Fla. Stat. § 790.001(3)(b), Fla. Stat.

"Chemical weapon or device" means any weapon of such nature, except a device known as a "self-defense chemical spray." "Self-defense chemical spray" means a device carried solely for purposes of lawful self-defense that is compact in size, designed to be carried on or about the person, and contains not more than two ounces of chemical.

Fla. Stat. § 790.001(4) , Fla. Stat.

["Destructive device" means any bomb, grenade, mine, rocket, missile, pipebomb, 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.]
Lesser Included Offenses TRESPASS ON SCHOOL PROPERTY WITH A [FIREARM] [WEAPON] - 810.095(1) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Trespass on School 810.097(2) 13.5(b) Grounds or Facility After Warning By Principal (if refusal to depart is charged) Trespass Upon School 810.097(1) 13.5(a) Grounds or Facility (if no legitimate business or student suspended is charged) Attempt 777.04(1) 5.1 Trespass in Structure or 810.08 or 13.3 or On Property Other than 810.09 13.4 a Structure (depending on charging document)

Comment

This comment was adopted in 2013 [122 So.3d 263] and amended in 2018.

      The Committee's report originally asked the Court to authorize for publication and use proposed new instruction 10.6(c) (Recreational Discharge of a Firearm Outdoors in a Residential Area). However, following publication by the Court and upon review of a comment filed with the Court by the Florida Public Defender Association, the Committee requested to withdraw instruction 10.6(c). After reviewing the comment by the Florida Public Defender Association, and the Committee's reasoning for its withdrawal, the Court hereby grants the Committee's request to withdraw proposed instruction 10.6(c). Proposed new instruction 10.6(c) is no longer a part of case number SC17-2263 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.


source: Caselaw Access Project

author: QUINCE, J.

license: Public Domain

text:
    Anthony NEWTON, Petitioner, v. CATERPILLAR FINANCIAL SERVICES CORPORATION, et al., Respondents.
    No. SC17-67
    Supreme Court of Florida.
    September 27, 2018
    T. Patton Youngblood, Jr. of Youngblood Law Firm, St. Petersburg, Florida; and Steven L. Brannock and Thomas J. Seider of Brannock & Humphries, Tampa, Florida, for Petitioner
    Hala Sandridge and Blake J. Delaney of Buchanan Ingersoll & Rooney, PC, Tampa, Florida, for Respondent Caterpillar Financial Services Corporation
   QUINCE, J.

Petitioner Anthony Newton seeks review of Newton v. Caterpillar Financial Services Corp. , 209 So.3d 612 (Fla. 2d DCA 2016), on the ground that it expressly and directly conflicts with decisions of this Court and other district courts. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons that follow, we find that loaders are dangerous instrumentalities and quash the district court decision below.

FACTS

C & J Bobcat and Hauling, LLC, hired Anthony Newton as an independent contractor to assist its agent, Charles Cram, in clearing debris from a private lot in a residential area. Newton , 209 So.3d at 613. Cram and Newton used a multi-terrain loader to clear the lot. Id. Cram leased the loader from Caterpillar Financial Services Corporation (Caterpillar) and transported the loader to the private lot in a box trailer. Id. Cram disencumbered the box trailer and briefly drove the loader on the street before driving it onto the private lot. Id. Cram and Newton used the loader to dump debris into another box trailer for disposal. Id. The disposal trailer was parked on a public street.

While trying to move a tree stump into the disposal trailer, Cram asked Newton to climb inside and pack down the debris. Id. While Newton was inside, Cram released the stump from the loader's bucket into the disposal trailer. Id. Newton tried to warn Cram that he was still in the disposal trailer, but Cram could not hear him. Id.

As Newton attempted to climb out of the disposal trailer, the stump rolled over his hand. Id. The stump severed Newton's middle finger. Id.

Newton filed suit against Caterpillar, alleging that Caterpillar was liable for the injuries he sustained from Cram's negligent operation of the loader because the loader was a dangerous instrumentality. Id. at 613-14. Newton and Caterpillar filed competing motions for summary judgment disputing whether loaders are dangerous instrumentalities, each accompanied by affidavits from experts. Id. at 614. Newton's expert described the physical capabilities of loaders, including the ability to lift 2300 pounds to a height of approximately 9.5 feet. Id. at 614. Caterpillar's expert gave statistics about the loader, including the number of accidents involving the exact model of loader in this case which have been reported to Caterpillar. Id. at 615. The trial court heard arguments from both parties, found that loaders are not dangerous instrumentalities, and granted summary judgment in favor of Caterpillar. Id. at 615-16, 618.

ANALYSIS

Whether loaders are dangerous instrumentalities is a pure question of law and is reviewed de novo. See Rippy , 80 So.3d at 306 (citing D'Angelo v. Fitzmaurice , 863 So.2d 311, 314 (Fla. 2003) ). As we noted in Rippy , "Florida's dangerous instrumentality doctrine imposes 'vicarious liability upon the owner of a motor vehicle who voluntarily entrusts that motor vehicle to an individual whose negligent operation causes damage to another.' " Rippy , 80 So.3d at 306 (quoting Aurbach v. Gallina , 753 So.2d 60, 62 (Fla. 2000) ). The "doctrine is an old and well-settled rule that can be traced back to English common law ... [and applies] to objects that 'common knowledge and common experience prove[ ] to be ... potent sources of danger.' " Id. at 306-07 (quoting S. Cotton Oil Co. v. Anderson , 80 Fla. 441, 86 So. 629, 631 (1920) ).

Florida courts consider a variety of factors in applying the dangerous instrumentality doctrine. Id. at 308. One of the most important factors is whether the instrumentality is a motor vehicle. Id. Courts also consider whether the instrumentality is frequently operated near the public, but the incident under review need not have occurred on public property for the instrumentality to be dangerous. Id. at 308-09. Another factor is the instrumentality's peculiar dangers relative to other objects that courts have found to be dangerous instrumentalities. See Meister , 462 So.2d at 1073. Courts also consider how extensively the legislature has regulated the instrumentality. See id. at 1072-73. Evaluations of each factor may be based on "common knowledge and common experience" and should not be at odds with "the common opinion among many." S. Cotton Oil Co. , 86 So. at 631, 633. No single factor "is determinative of whether an instrumentality is dangerous." Rippy , 80 So.3d at 308. It "is based on 'the practical fact that the owner of an instrumentality which [has] the capability of causing death or destruction should in justice answer for misuse of this instrumentality by anyone operating it with his knowledge and consent.' " Id. at 307 (quoting Meister , 462 So.2d at 1072 ).

First, we examine whether loaders are motor vehicles. Because " the 'various definitions of "motor vehicle" within the Florida Statutes are not dispositive,' " Newton , 209 So.3d at 616 (quoting Harding v. Allen-Laux, Inc. , 559 So.2d 107, 108 (Fla. 2d DCA 1990) ), we consult Black's Law Dictionary . A "motor vehicle" is: "A wheeled conveyance that does not run on rails and is self-propelled, esp. one powered by an internal-combustion engine, a battery or fuel-cell, or a combination of these." Blacks Law Dictionary 1788 (10th ed. 2014). Loaders are self-propelled, powered by an engine, and can be wheeled conveyances. Common knowledge and plain language demonstrate that loaders, like farm tractors and forklifts, are motor vehicles for the purpose of the dangerous instrumentality doctrine.

Much like the farm tractors considered in Rippy , loaders are often operated in construction settings and on public rights-of-way and are "vehicles of such size and speed that wherever they are operated, they can be dangerous to those persons who come into contact with them." Rippy , 80 So.3d at 309. The undisputed facts of this case confirm that loaders are frequently used to clear private lots near public streets. This Court is persuaded that, while multi-terrain loaders may operate in public less often than their counterparts, loaders operate near the public frequently. Further, as we noted in Rippy , "the dangerous instrumentality doctrine is not limited to motor vehicles being operated on a public highway and may apply to a motor vehicle operated on private property." Rippy , 80 So.3d at 307 (citing Meister , 462 So.2d at 1073 ).

Loaders are heavy pieces of construction equipment weighing thousands of pounds. Loaders can move heavy loads across streets and unimproved surfaces. Multi-terrain loaders have tank-style treads designed for use on unimproved surfaces, while skid steer loaders have large tires designed for improved surfaces. Some loaders, like the one in this case, can be converted from treads to tires. Attached to their front ends, loaders have buckets in which heavy items can be lifted above the height of the average person. The bucket can obstruct operator visibility because loaders are operated from within cages in their centers.

The loader in this case weighed 8000 pounds and had treads at the time of the accident, though it could be modified to operate on tires. Newton , 209 So.3d at 614-16 & n.2. Newton's expert averred that the loader could lift 2300 pounds to a height of 9.5 feet and that its design restricted the operator's visibility. Id. at 615. His affidavit also indicated "that the loader's potential momentum placed it within a range of momentums associated with other dangerous instrumentalities." Id. Common knowledge demonstrates that a machine as powerful as a loader has the ability to cause serious injury when operated near or over a public street, just like any motor vehicle operated on a public highway. As the Second District noted below, "the loader is a serious piece of machinery with the capacity to do great harm." Newton , 209 So.3d at 618.

Finally, we hold that Newton's status as an independent contractor does not exclude him from protection under the dangerous instrumentality doctrine. The doctrine has not treated construction workers as separate from the general public when injured in a public place. See N. Trust Bank of Fla., N.A. v. Constr. Equip. Int'l , 587 So.2d 502, 504 (Fla. 3d DCA 1991) ; cf. Canull v. Hodges , 584 So.2d 1095, 1097 (Fla. 1st DCA 1991). Newton may not have been "a member of the unsuspecting public," Newton 209 So.3d at 616, but his accident occurred on a public street. Newton's employment does not disqualify his accident from coverage under the doctrine.

CONCLUSION

Based on the foregoing, we determine that a loader is a dangerous instrumentality as a matter of law. Accordingly, we quash the decision below and remand to the district court with instructions that this case be further remanded to the trial court for an order granting summary judgment in favor of Newton.

It is so ordered.

PARIENTE, LEWIS, and LABARGA, JJ., concur.

LAWSON, J., dissents with an opinion, in which CANADY, C.J., and POLSTON, J., concur.

I respectfully dissent because this Court does not have jurisdiction to decide this case. To confer jurisdiction on this Court on the basis of a conflict, a decision of a district court must "expressly and directly conflict[ ] with a decision of another district court of appeal or of [this Court] on the same question of law." Art. V, § 3(b)(3), Fla. Const. To meet this standard, the cases alleged to be in conflict must not be distinguishable from one another, cf. Fla. Dep't of Children & Families v. Davis Family Day Care Home , 160 So.3d 854, 855 n.1 (Fla. 2015) (opining that the district court's certification of conflict was misguided because the two cases were distinguishable), and they must decide-meaning reach a holding on-the same question of law, see Ciongoli v. State , 337 So.2d 780, 781 (Fla. 1976) (discharging jurisdiction where "the conflicting language [was] mere obiter dicta "). Also, the conflict must "appear within the four corners of" the district court's decision. Reaves v. State , 485 So.2d 829, 830 (Fla. 1986).

The majority has accepted this case on the basis of alleged conflict between Newton v. Caterpillar Financial Services Corp ., 209 So.3d 612 (Fla. 2d DCA 2016), which holds that a loader is not a dangerous instrumentality, and the following set of decisions recognizing diverse pieces of machinery as dangerous instrumentalities: Rippy v. Shepard , 80 So.3d 305 (Fla. 2012) (farm tractor); Meister v. Fisher , 462 So.2d 1071 (Fla. 1984) (golf cart); Sherrill v. Corbett Cranes Services , 656 So.2d 181 (Fla. 5th DCA 1995) (crane); Lewis v. Sims Crane Service Inc. , 498 So.2d 573 (Fla. 3d DCA 1986) (construction hoist); Eagle Stevedores, Inc. v. Thomas , 145 So.2d 551 (Fla. 3d DCA 1962) (tow-motor). There is no express and direct conflict between Newton and any of these decisions.

It appears that the majority has found jurisdiction by noting the devices deemed dangerous instrumentalities in the five listed cases, considering the loader at issue in this case, and concluding instinctively that if these other five devices are dangerous instrumentalities, a loader surely is as well. See majority op. at 1055 note1 (explaining jurisdiction by reference to a list of items held to be dangerous instrumentalities in other cases). Problems with this approach include that each case addresses a different device with its own distinct characteristics, some of which are simply incomparable to the characteristics of the construction equipment at issue in this case, and that not all the cases even describe the characteristics of the devices being addressed. Compare Rippy , 80 So.3d at 309 (noting that a farm tractor is "often seen on public highways and rights-of-way") with Newton , 209 So.3d at 614-15 (citing evidence that the loader "was not routinely operated on public highways, rights-of-way, golf courses, or other improved surfaces" or designed for that purpose); see Meister , 462 So.2d at 1072-73 (analyzing golf carts based on commonly known characteristics and uses); Sherrill , 656 So.2d at 183-84 (implicitly accepting the proposition that a crane is a dangerous instrumentality without mentioning any of its characteristics); Lewis , 498 So.2d at 575 (supporting a conclusion that a construction hoist is a dangerous instrumentality by citation to other decisions, not analysis of its characteristics); Thomas , 145 So.2d at 551-52 (describing a "tow motor" only as "a small motor operated vehicle" and addressing narrow arguments concerning the location of the tow motor and whether a required license had been obtained). A related problem is that this approach was expressly foreclosed by disclaimers this Court made in Rippy. 80 So.3d at 308-09 (explaining that the Court's prior conclusion that a golf cart is a dangerous instrumentality is not "the one touchstone by which all other instrumentalities are measured" and that the Court's decision was not based on a simple comparison of devices). And, as to one case, Sherrill , the assertion that the device involved is a dangerous instrumentality is not a question of law decided in the case at all. See generally Sherrill , 656 So.2d at 182-86 (analyzing whether the trial court erred in determining that a "crane operator was, a matter of law, a borrowed servant" of a general contractor under workers' compensation law).

To further explain these points, I will first discuss the contradiction between this Court's opinion in Rippy and the general approach to finding conflict that the majority has taken in this case, and then I will address each of the five cases specifically to show that there is no express and direct conflict, as required for this Court to exercise jurisdiction in this case.

In Rippy , this Court explained that a device fits within the dangerous instrumentality doctrine when it is an " 'instrumentality of known qualities [that] is so peculiarly dangerous in its operation' as to justify" making the owner of the device liable for damage caused when it is operated negligently by someone the owner has entrusted with the device. 80 So.3d at 306 (alteration in original) (quoting S. Cotton Oil Co. v. Anderson , 80 Fla. 441, 86 So.2d 629, 638 (1920) ). This Court went on to determine whether a farm tractor should be considered a dangerous instrumentality by considering various factors gleaned from prior decisions, without identifying any concrete list of factors as mandatory considerations or requiring that any particular weight be given to specific factors, other than to say that whether the device is a "motor vehicle" is "[a] primary factor." Id. at 308-09.

In setting forth this loose, factor-based approach, the Rippy Court made a special point to say that "no one test is determinative of whether an instrumentality is dangerous." 80 So.3d at 308. More significantly in light of the implied reasoning the majority offers in support of exercising jurisdiction in this case, the Rippy opinion pointedly states the following: "[T]he contention ... that this Court's ruling in Meister -that a golf cart is a dangerous instrumentality-'sets the bar' low, and the resulting implication that this has become the one touchstone by which all other instrumentalities are measured, is incorrect." Id. (citation omitted). The Rippy Court drove this point home by denying that its decision was based "simply on 'a comparison between the device at issue [a farm tractor] and a golf cart.' " Id. at 309. If, as this Court said in Rippy , there is no one test that is determinative and comparison of devices does not suffice to answer whether a particular device is a dangerous instrumentality, then a list of devices addressed in prior decisions does not show express and direct conflict between those prior decisions and a decision addressing the specific, distinct device at issue in this case.

Thus, in light of this Court's analysis and express disclaimers in Rippy , I disagree with the general suggestion in the majority opinion that express-and-direct-conflict jurisdiction is established by the bare fact that each of the listed devices, none of which is a loader, has been determined by either this Court or another district court of appeal to be a dangerous instrumentality. Below, I more closely examine the five cases cited as grounds for this Court to exercise jurisdiction to show that the decisions themselves do not contain any other basis for finding express and direct conflict.

The first two cases, Rippy and Meister , set out the very broad rule, already noted above, that a device is a dangerous instrumentality if its characteristics and uses justify holding its owner liable for damages caused by another person to whom the device has been entrusted. Rippy , 80 So.3d at 306 ; Meister , 462 So.2d at 1072 (quoting Jordan v. Kelson , 299 So.2d 109, 111 (Fla. 4th DCA 1974) ). Both Rippy and Meister then examine factors to decide if the particular devices at issue, a farm tractor and a golf cart, meet this standard. Rippy , 80 So.3d at 308-09 ; Meister , 462 So.2d at 1072-73. The factors this Court determined relevant in its analysis of the farm tractor and golf cart consisted of the following: (1) whether the device is a motor vehicle, Rippy , 80 So.3d at 308 ; Meister , 462 So.2d at 1072 ; (2) the extent to which the device is legislatively regulated, Rippy , 80 So.3d at 308 ; Meister , 462 So.2d at 1072 ; (3) the likelihood that members of the public will come into contact with the device in operation, Rippy , 80 So.3d at 308-09, Meister , 462 So.2d at 1073 ; and (4) how similar the accidents and injuries associated with the device are to the accidents and injuries caused by automobiles, Rippy , 80 So.3d at 309 ; Meister , 462 So.2d at 1073. In addition, in Rippy , this Court considered the physical characteristics of farm tractors. 80 So.3d at 309 (considering size, speed, weight, and mechanism).

In the decision on review, the Newton court recognized the factor approach exemplified in Rippy and Meister. Newton , 209 So.3d at 615. At the outset of its discussion, the Newton court identified the factors it had determined relevant from a thorough study of this Court's precedent as well as district court precedent:

Whether the loader in this case is a dangerous instrumentality presents a pure question of law that this court reviews de novo. See Rippy v. Shepard , 80 So.3d 305, 306 (Fla. 2012). The doctrine imposes vicarious liability on the owner of an " 'instrumentality of known qualities [that] is so peculiarly dangerous in its operation' as to justify application" of the doctrine. Id. (quoting S. Cotton Oil Co. v. Anderson , 80 Fla. 441, 86 So. 629, 638 (Fla. 1920) (on petition for rehearing) ). In deciding whether something is a dangerous instrumentality, courts consider a number of factors. "A primary factor in determining whether an object is a dangerous instrumentality is whether the object at issue is a motor vehicle." Id. at 308. Courts also evaluate the extent to which an object is regulated because legislative regulation is a recognition of the danger posed by the use of the evaluated instrumentality. See S. Cotton Oil Co. , 86 So. at 634 ("It is idle to say that the Legislature imposed all these restraints, regulations, and restrictions upon the use of automobiles, if they were not dangerous agencies which the Legislature felt it was its duty to regulate and restrain for the protection of the public."). Another factor is the relative danger posed by the instrumentality. See id. at 633 ; Festival Fun Parks, LLC v. Gooch , 904 So.2d 542, 546 (Fla. 4th DCA 2005) (noting that accidents involving go-karts causing serious injury were "pretty rare"). The physical characteristics of the object are also pertinent to the dangerous instrumentality inquiry. See Rippy , 80 So.3d at 309 ; Harding v. Allen-Laux, Inc. , 559 So.2d 107, 108 (Fla. 2d DCA 1990) (describing a forklift as a "large[ ], four-wheel vehicle with protruding steel tusks"). Courts also consider whether the instrumentality at issue is operated in close proximity to the public. Compare Harding , 559 So.2d at 108 (considering forklift involved in accident with a motor vehicle on public highway), with Canull v. Hodges , 584 So.2d 1095, 1097 (Fla. 1st DCA 1991) ("The road grader we are asked to classify as a dangerous instrumentality was not licensed or regulated and was operating on an airport construction site and its operator was apparently a fellow employee of the plaintiff. " (emphasis added) ).

Id. at 614. The Newton court then concluded, correctly, that "[n]o single factor is determinative of the inquiry, and this list of factors is not exhaustive," but "[r]ather, these factors exist to assist courts in determining whether an application of the dangerous instrumentality doctrine is justified." Id. The Newton court applied each of the factors it identified, with an analysis specific to the loader at issue in this case. Id. at 615-18. Because the Newton court applied a list of factors consistent with the factors this Court relied on in Rippy and Meister and was considering a different device from those analyzed in Rippy and Meister , there is no express and direct conflict with either Rippy or Meister.

After citing Rippy and Meister as decisions in conflict with Newton , the majority cites three district court cases: Lewis , Sherrill , and Thomas.

As for Lewis , the determination of conflict could not have been based on anything but a conclusory comparison of devices. The Lewis court's conclusion that the device at issue, a "construction hoist, or elevator," 498 So.2d at 574, is a dangerous instrumentality is supported by one sentence of explanation: "It has been held that construction hoists are inherently dangerous instrumentalities," id. at 575. The Lewis court's bare conclusion that a construction hoist is a dangerous instrumentality does not conflict with the Newton court's conclusion that the loader used in this case is not. Not only does an intuitive comparison of the two devices lead to this conclusion of lack of conflict, but the guidance this Court set out in Rippy indicates that more than an intuitive comparison is required. See Rippy , 80 So.3d at 308-09. Because the Lewis decision offers nothing more than a conclusion that construction hoists qualify as dangerous instrumentalities, it provides no basis upon which we could conclude that there is an express and direct conflict of decisions and remain consistent with the Rippy analysis.

The conclusion that the Sherrill decision expressly and directly conflicts with Newton suffers the same failing and more. It appears that the majority has decided that a bare assertion in Sherrill that a crane is a dangerous instrumentality conflicts with the Newton court's factor-based conclusion that a loader is not a dangerous instrumentality. See majority op. at 1055 note 1. Not only is this analysis invalid because Rippy establishes that a simple comparison is an illegitimate basis for a decision on the merits-and, a fortiori , for a finding of conflict-, 80 So.3d at 308-09, but it is invalid because the Sherrill court did not even conclude that a crane is a dangerous instrumentality. See generally Sherrill , 656 So.2d at 182-86. Whether a crane is a dangerous instrumentality was not a question of law presented to the Sherrill court to decide. See generally id.

The sole issue decided by the Sherrill court was whether the trial court erred in determining that a "crane operator was, as a matter of law, a borrowed servant" of a general contractor under workers' compensation law. 656 So.2d at 182-83. The general contractor had leased the crane, and the lease for the crane required the lessor to "[f]urnish" an operator as well. Id. at 182. The crane operator was involved in an accident with the crane that injured an employee of the general contractor. Id. The employee obtained workers' compensation benefits from the general contractor and sued both the owner of the crane and the employer of the crane operator for negligence. Id. The Sherrill court explained that if the crane operator was properly considered a "borrowed servant" (an issue improperly decided on summary judgment by the trial court), the crane operator's employer and the crane's owner would be entitled to workers' compensation immunity. 656 So.2d at 182-83.

The impression that the Sherrill court concluded that a crane is a dangerous instrumentality seems to arise from this language:

[H]ad [the crane owner] simply leased the crane to [the general contractor], it would clearly be immune from liability under the worker's compensation statutes since its purported liability under these circumstances would be based solely on the 'dangerous instrumentality' doctrine. Florida has long recognized that a worker injured by a leased dangerous instrumentality operated by a fellow worker is limited to no more recovery than that permitted by the worker's compensation statutes.

656 So.2d at 183. The Sherrill court then explained that the facts of the case indicated that the company that owned the crane "may have become either a subcontractor or an independent contractor," which would negate the applicability of workers' compensation immunity, but that the crane owner argued that the "borrowed servant" doctrine applied, making the general contractor liable for the crane operator's activities and causing the general contractor's workers' compensation insurance to extend to any liability for the injury the crane operator caused. Id. at 183-84. The Sherrill court quoted from two cases explaining that "a worker injured by a leased dangerous instrumentality operated by a fellow worker is limited to no more recovery than that permitted by the worker's compensation statutes." Id. at 183 (quoting Halifax Paving, Inc. v. Scott & Jobalia Construction Co., 565 So.2d 1346, 1347 (Fla. 1990) ); see also id. at 184 ("When a dangerous instrumentality is leased to an employer, the lessor shares the employer's worker's compensation immunity from suit by employees." (quoting Larzelere v. Employers Ins. of Wausau , 613 So.2d 510, 511 (Fla. 2d DCA 1993) ). Essentially, the Sherrill court explained that, even though the crane was a dangerous instrumentality-which was apparently not in dispute and, therefore, not a question of law decided by that court-the injured party's recovery was limited by the workers' compensation statutes if the crane operator ultimately was proven as a matter of fact to be a "borrowed servant." See id. at 183-84, 186. The crane's status as a dangerous instrumentality was a conceded point acknowledged in passing and not a decision of the court on a question of law. Therefore, it does not support a finding of express and direct conflict.

Finally, Thomas does not expressly and directly conflict with Newton. The Thomas decision's entire discussion of the dangerous instrumentality issue consists of the following:

Appellee, plaintiff below, while standing near a lunch truck in a street end or extension located in a harbor dock area, was struck and injured by a small motor operated vehicle referred to as a 'tow-motor.' The vehicle was owned by the corporate defendant and operated by the individual defendant with the former's knowledge and consent.... On appeal, it is contended that the dangerous instrumentality doctrine as referable to motor vehicles was not applicable because the vehicle involved was not licensed and because the accident did not occur on a publicly maintained street or thoroughfare....
On the evidence, the jury was entitled to find that the injury occurred on a public street or highway maintained by the city for vehicular and pedestrian traffic, and that the 'tow-motor' was a motor vehicle. On those facts the dangerous instrumentality doctrine properly applied. An owner or driver may not escape liability for negligent operation of a motor vehicle on a public street or highway because the required licensing of the vehicle has been omitted.

145 So.2d at 551-52 (footnotes omitted). Thomas contains no discussion of the factors identified in Newton , except for the operation of the vehicle in proximity to the public, but it also does not rule out consideration of these factors. See id. The Thomas court addressed and rejected a specific, narrow argument that the tow motor was not being operated in public and, therefore, could not qualify as a dangerous instrumentality. Id. The Thomas court resolved the issue by concluding that the tow motor was, in fact, being operated in public. Id. Given this conclusion, the Thomas court did not need to answer any larger question concerning whether operation in public is necessary or relevant to a finding that a particular device is a dangerous instrumentality.

The Newton decision involves a much more complicated question: whether, based on facts concerning the loader and its operation and a variety of factors developed in case law generated after Thomas , the loader meets the general test for being considered a dangerous instrumentality. See Newton , 209 So.3d at 614-18. Unlike the situation in Thomas , the location of the device at the time of the injury is a single point in a multi-faceted analysis arising from a full argument concerning the legal requirements for qualifying a device as a dangerous instrumentality. See Newton , 209 So.3d at 614-18. The Newton court considered the location of the loader relevant, but not dispositive. See id. at 614 ("No single factor is determinative of the inquiry ...."). Its comprehensive, factor-based analysis of the broad question presented does not expressly and directly conflict with the Thomas court's tacit acceptance of the proposition that a device being operated in private is not a dangerous instrumentality and its narrow conclusion that the particular device at issue, a tow motor, was not removed from the dangerous instrumentality doctrine due to the nature of the street on which it was being operated.

Further, unlike Thomas , the Newton opinion indicates that there was no dispute that the device in question was being operated on a private lot at the time of the injury. See Newton , 209 So.3d at 613. Therefore, the narrow issue addressed in Thomas -whether evidence presented at trial supported a finding that the device was being operated in public-was not at issue in Newton.

For the foregoing reasons, none of the decisions the majority relies on as the grounds for jurisdiction over this case satisfy the constitutional requirements for the cited jurisdictional basis, express and direct conflict on the same question of law. See art. V, § 3(b)(3). Therefore, I dissent.

CANADY, C.J., and POLSTON, J., concur.

      The decision below conflicts with decisions of this Court and other district courts holding that different kinds of motorized equipment comparable to loaders are dangerous instrumentalities. See , e.g. , Rippy v. Shepard , 80 So.3d 305 (Fla. 2012) (farm tractor); Meister v. Fisher , 462 So.2d 1071 (Fla. 1984) (golf cart); Sherrill v. Corbett Cranes Servs. , 656 So.2d 181 (Fla. 5th DCA 1995) (crane); Lewis v. Sims Crane Serv. Inc. , 498 So.2d 573 (Fla. 3d DCA 1986) (construction hoist); Eagle Stevedores, Inc. v. Thomas , 145 So.2d 551 (Fla. 3d DCA 1962) (tow-motor).

      The first application of the dangerous instrumentality doctrine by this Court was to automobiles being operated on public highways. Rippy , 80 So.3d at 307 (quoting S. Cotton Oil Co. v. Anderson , 80 Fla. 441, 86 So. 629, 638 (1920) ).

      In his jurisdictional brief, Newton argued conflict with Rippy and Meister because, among other reasons, the Newton court considered it significant that this particular loader was being operated on a private lot at the time of the injury and that Newton, the injured party, was not a "member of the unsuspecting public," Newton , 209 So.3d at 616, while this Court in Rippy and Meister held that operation on public highways is not a requirement of the dangerous instrumentality doctrine, Rippy , 80 So.3d at 309 ; Meister , 462 So.2d at 1073. However, it is clear that the Newton court did not find the loader's operation on private property at the time of the accident dispositive. The court stated that "[n]o single factor is determinative of the inquiry" and, besides considering where the loader was being used at the time of the accident, pointed out that there "was no evidence that these loaders were routinely operated in close proximity to the public." 209 So.3d at 614, 617. Meister and Rippy make clear that it is relevant whether a particular device tends to be operated in close proximity to the public, and in fact, Meister 's holding is limited to golf carts that are being operated on golf courses. Meister , 462 So.2d at 1071, 1073 (holding that "a golf cart that is being operated on a golf course is included within the dangerous instrumentality doctrine" and concluding that golf carts pose "sufficient danger to the public" to justify applying the doctrine because golf carts and courses are "extremely prevalent" in this state, golf carts cause similar accidents and injuries to other motor vehicles, and the Legislature has found it necessary to regulate them); Rippy , 80 So.3d at 309 (noting that farm tractors are most often, but not always, operated on farm property and that they "frequently operate along state roads and other public areas") ). The Newton court's exercise of taking into account, as one subfactor among many, that the device at issue-which, unlike farm tractors and golf carts, was not shown to be of the type that frequently operates in public spaces-was being operated on a private lot at the time of the accident, does not expressly and directly conflict with Rippy , Meister, or any other decision that has been cited to us.

      The majority notes that Newton's "accident occurred on a public street" because that is where the disposal trailer was parked. Majority op. at 1055-56, 1057-58. This observation is a conclusion derived from the record, rather than the Newton opinion. Therefore, it does not affect the jurisdictional analysis. See Reaves , 485 So.2d at 830 & n.3.


text:
    Marvin Leon MCBRIDE, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-2497
    District Court of Appeal of Florida, First District.
    Opinion filed December 8, 2017.
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


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    CASE NO. 1D17-2488
    District Court of Appeal of Florida, First District.
    Opinion filed December 8, 2017
    DECISION WITHOUT PUBLISHED OPINION
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    District Court of Appeal of Florida, First District.
    Opinion filed December 5, 2017
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    CASE NO. 1D17-0085
    District Court of Appeal of Florida, First District.
    Opinion filed November 8, 2017
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    District Court of Appeal of Florida, First District.
    Opinion filed December 29, 2017
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    CASE NO. 1D17-3406
    District Court of Appeal of Florida, First District.
    Opinion filed December 8, 2017.
    DECISION WITHOUT PUBLISHED OPINION
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    Iron Vasean BRONNER, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-2491
    District Court of Appeal of Florida, First District.
    Opinion filed December 8, 2017.
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    CASE NO. 1D16-5790
    District Court of Appeal of Florida, First District.
    Opinion filed December 8, 2017
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    Timysha Devondra SIMPO, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-4114
    District Court of Appeal of Florida, First District.
    August 15, 2018 Rehearing Denied October 4, 2018
    DECISION WITHOUT PUBLISHED OPINION
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    Troy Kelvin CURRY-PENNAMON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0379
    District Court of Appeal of Florida, First District.
    August 8, 2018 Rehearing Denied October 8, 2018
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    William RHOW, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4033
    District Court of Appeal of Florida, First District.
    January 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


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    Lawon Gortez DALE, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-5633
    District Court of Appeal of Florida, First District.
    January 2, 2018
    DECISION WITHOUT PUBLISHED OPINION
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    Bryan FLOWERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3369
    District Court of Appeal of Florida, First District.
    August 22, 2018 Rehearing Denied October 4, 2018
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text:
    Elbert JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4226
    District Court of Appeal of Florida, First District.
    August 21, 2018 Rehearing Denied October 8, 2018
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    Frederick Charles DUTTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-4987
    District Court of Appeal of Florida, First District.
    August 17, 2018 Rehearing Denied October 8, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Lyndal WILKINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4388
    District Court of Appeal of Florida, First District.
    January 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Joshua LITTLE, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2870
    District Court of Appeal of Florida, First District.
    September 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Timothy HANNER, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1354
    District Court of Appeal of Florida, First District.
    September 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Kenneth David CROMARTIE, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1164
    District Court of Appeal of Florida, First District.
    September 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Thomas MCPHAUL, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3027
    District Court of Appeal of Florida, First District.
    September 14, 2018 Rehearing Denied October 4, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Donald L. GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4271
    District Court of Appeal of Florida, First District.
    September 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jacob THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4085
    District Court of Appeal of Florida, First District.
    September 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    James H. SPICER, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1799
    District Court of Appeal of Florida, First District.
    September 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Dontavious Antwan CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5008
    District Court of Appeal of Florida, First District.
    September 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Brendan Morgan CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3668
    District Court of Appeal of Florida, First District.
    September 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Shawn Demontre COOLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1807
    District Court of Appeal of Florida, First District.
    September 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jerome DICKEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2909
    District Court of Appeal of Florida, First District.
    September 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Randy WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-3396
    District Court of Appeal of Florida, First District.
    September 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Frederick L. WATERFIELD, Jr., Petitioner, v. Julie L. JONES, Secretary, Florida Department of Corrections, Respondent.
    No. 1D17-4995
    District Court of Appeal of Florida, First District.
    September 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   DENIED.


text:
    Juan Francisco VEGA and Jamaal Ali Bilal, Appellants, v. Mike CARROLL, Secretary, Florida Department of Children and Families, Appellee.
    No. 1D17-3110
    District Court of Appeal of Florida, First District.
    September 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Derrick Christopher SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4083
    District Court of Appeal of Florida, First District.
    September 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Enrico T. RHODES, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-0740
    District Court of Appeal of Florida, First District.
    September 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    L.F., Mother of A.P., Jr. and A.F.-P., Minor Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D18-2826
    District Court of Appeal of Florida, First District.
    October 4, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Abigail Christine MADDOX and Alexandra C. Maddox, Appellants, v. John Ferrell BURKETT, Cindy Lancaster Stewart, and GEICO General Insurance Company, Appellees.
    No. 1D17-5038
    District Court of Appeal of Florida, First District.
    October 4, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Morocco Lavan LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4927
    District Court of Appeal of Florida, First District.
    October 4, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Elizabeth Jane SWINNEY n/k/a Elizabeth Hazen, Appellant, v. NATIONSTAR MORTGAGE LLC, Appellee.
    No. 1D17-4180
    District Court of Appeal of Florida, First District.
    October 4, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Michael Todd BUTLER, Appellant, v. CITY OF TALLAHASSEE RISK MANAGEMENT, Appellee.
    No. 1D17-2698
    District Court of Appeal of Florida, First District.
    October 4, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Deshawn J. BOLDEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3386
    District Court of Appeal of Florida, First District.
    February 22, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Roberto CRUZ-BETANZOS, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-4223
    District Court of Appeal of Florida, First District.
    February 5, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Thomas ARLINE, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3970
    District Court of Appeal of Florida, First District.
    January 31, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Reginald L. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-0732
    District Court of Appeal of Florida, First District.
    March 29, 2018 Rehearing Denied June 8, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Michael BARFIELD, Petitioner, v. FLORIDA DEPARTMENT OF HEALTH, and Surterra Florida, LLC, Respondents.
    No. 1D17-4582
    District Court of Appeal of Florida, First District.
    March 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   DENIED.


text:
    Dominic GAINES, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5442
    District Court of Appeal of Florida, First District.
    March 15, 2018
    DECISION WITHOUT PUBLISHED OPINION
   DISMISSED.


text:
    Sterling S. MALLORY, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3135
    District Court of Appeal of Florida, First District.
    January 11, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Eric M. CRAPSER, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2849
    District Court of Appeal of Florida, First District.
    April 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Anthony Michael GAY, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5047
    District Court of Appeal of Florida, First District.
    April 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Vernon Stewart POLK, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4195
    District Court of Appeal of Florida, First District.
    January 11, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Kareem A. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4493
    District Court of Appeal of Florida, First District.
    January 11, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Shaena Lamar REYNOLDS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4061
    District Court of Appeal of Florida, First District.
    May 9, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Andrew A. CAVE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D16-3894
    District Court of Appeal of Florida, First District.
    May 2, 2018 Rehearing Denied June 8, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Mark W. BAXLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1626
    District Court of Appeal of Florida, First District.
    April 30, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jonathan Lee Miles THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-4319
    District Court of Appeal of Florida, First District.
    April 30, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    IN RE Carlos Lamar SMITH.
    Carlos Lamar Smith, Appellant,
    Case No. 2D17-2769
    District Court of Appeal of Florida, Second District.
    Opinion filed May 30, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    L.O., Appellant, v. J.H. and N.R., Appellees.
    Case No. 2D17-308
    District Court of Appeal of Florida, Second District.
    Opinion filed May 30, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Javoney D. ROBERTS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3275
    District Court of Appeal of Florida, Second District.
    Opinion filed May 30, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    C.M.D., Petitioner, v. K.R.B., Respondent.
    Case No. 2D17-2308
    District Court of Appeal of Florida, Second District.
    Opinion filed October 25, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    E.L.A., JR., Appellant, v. M.F.M., Appellee.
    Case No. 2D17-3562
    District Court of Appeal of Florida, Second District.
    Opinion filed May 30, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jerry Leon PRIDE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4770
    District Court of Appeal of Florida, Second District.
    Opinion filed May 30, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Quartez DAVIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4808
    District Court of Appeal of Florida, Second District.
    Opinion filed May 30, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Derrick D. GILBERT, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4843
    District Court of Appeal of Florida, Second District.
    Opinion filed May 30, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Chaunka DAVIS, DOC #D45902, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1521
    District Court of Appeal of Florida, Second District.
    Opinion filed June 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Desiree WATSON, Appellant, v. FLORIDA HEALTH SCIENCES CENTER, INC. d/b/a Tampa General Hospital, Appellee.
    Case No. 2D17-1586
    District Court of Appeal of Florida, Second District.
    Opinion filed June 6, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Stefan BANKS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2229
    District Court of Appeal of Florida, Second District.
    Opinion filed June 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Brian NICHOLS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-660
    District Court of Appeal of Florida, Second District.
    Opinion filed May 30, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Chaldson SANON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2263
    District Court of Appeal of Florida, Second District.
    Opinion filed June 6, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Mahmoud KAHEEL, Appellant, v. Awatif HAMMUD, Appellee.
    Case No. 2D17-2380
    District Court of Appeal of Florida, Second District.
    Opinion filed June 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Julius Russell KIRVEN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2489
    District Court of Appeal of Florida, Second District.
    Opinion filed June 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    SOUTHERN CORPORATE PACKERS, INC., Appellant. v. PRINGLE LANE FARMS, LLC, Appellee.
    Case No. 2D17-2930
    District Court of Appeal of Florida, Second District.
    Opinion filed June 6, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Antwain POWERS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3479
    District Court of Appeal of Florida, Second District.
    Opinion filed June 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Luis OTINIANO, Appellant, v. The BANK OF NEW YORK MELLON TRUST COMPANY, NA f/k/a The Bank of New York Trust Company, NA, as Successor by Merger to Chase Bank National Association as Trustee for Bear Stearns Backed Securities Trust 2006-2; Mortgage Electronic Registration Systems, Inc.; Country Place Community Association, Inc. ; Jorge Mona; Esmeralda Mona; John Doe n/k/a Guillermo Otiniano; and Jane Doe, Appellees.
    Case No. 2D17-4287
    District Court of Appeal of Florida, Second District.
    Opinion filed June 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Anthony Brian BEVAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-533
    District Court of Appeal of Florida, Second District.
    Opinion filed June 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Steven GREENZWEIG, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-752
    District Court of Appeal of Florida, Second District.
    Opinion filed June 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Alvaro S. Sanchez GOMEZ, a/k/a Alvaro Salvador Sanchez Gomez, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2273
    District Court of Appeal of Florida, Second District.
    Opinion filed June 6, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Susan M. PRECIOSE, Appellant, v. Richard V. PRECIOSE, Appellee.
    Case No. 2D17-2807
    District Court of Appeal of Florida, Second District.
    Opinion filed June 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Owen BEDASEE and Sandie Bedasee, Appellants, v. FREMONT INVESTMENT AND LOAN COMPANY, Appellee.
    Case No. 2D17-891
    District Court of Appeal of Florida, Second District.
    Opinion filed June 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Phillip MOUNT, Doc #H27909, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2467
    District Court of Appeal of Florida, Second District.
    Opinion filed June 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Joshua DAY, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3445
    District Court of Appeal of Florida, Second District.
    Opinion filed June 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Corey GABRIEL, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4777
    District Court of Appeal of Florida, Second District.
    Opinion filed June 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Anthony Taylor TEED, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-709
    District Court of Appeal of Florida, Second District.
    Opinion filed June 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Perry Lee CHANCE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4487
    District Court of Appeal of Florida, Second District.
    Opinion filed June 8, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Javonte WHITFIELD, DOC #Y60943, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4546
    District Court of Appeal of Florida, Second District.
    Opinion filed June 8, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    LLANO FINANCING GROUP LLC, Appellant, v. Gary NEESE, an individual; and Michael L. Kronenberger, an individual, Appellees.
    Case No. 2D16-5087
    District Court of Appeal of Florida, Second District.
    Opinion filed June 8, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Melanie BISCARDI, Appellant, v. Christopher J. PEPIO, Appellee.
    Case No. 2D17-2190
    District Court of Appeal of Florida, Second District.
    Opinion filed June 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    UPWIND MANAGEMENT, INC., as Assignee of Rights of Julie L. Neugebauer and James Neugebauer, Appellant, v. U.S. BANK NATIONAL ASSOCIATION, as Trustee FOR REGISTERED HOLDERS OF CHASE FUNDING MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2003-6, Appellee.
    Case No. 2D17-2907
    District Court of Appeal of Florida, Second District.
    Opinion filed June 8, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Albert M. ROBINSON, Appellant, v. Teresa Lynn BOUCHER, Curtright Collins Truitt, John Doe Employees 1-4 of the Law Firm of Curtright C. Truitt, and Jane Robinson, Appellees.
    Case No. 2D17-3088
    District Court of Appeal of Florida, Second District.
    Opinion filed June 8, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Rodney BRYANT, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3603
    District Court of Appeal of Florida, Second District.
    Opinion filed June 8, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jean C. HOLYBRICE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3807
    District Court of Appeal of Florida, Second District.
    Opinion filed June 8, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    John NOONAN, Appellant, v. STETSON UNIVERSITY, INC., Appellee.
    Case No. 2D16-3643
    District Court of Appeal of Florida, Second District.
    Opinion filed June 8, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jennifer DEVENNE, Appellant, v. Walter DEVENNE, Appellee.
    Case No. 2D17-1367
    District Court of Appeal of Florida, Second District.
    Opinion filed June 8, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Darryl SCHNEIDER, Appellant, v. Sybil MURPHY, individually and as personal representative of the Estate of Gloria C. Schneider, deceased; Cyrie Schneider; and Marcy McDermott, Appellees.
    Case No. 2D17-2725
    District Court of Appeal of Florida, Second District.
    Opinion filed June 8, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Henry Antawon FLORENCE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3282
    District Court of Appeal of Florida, Second District.
    Opinion filed June 8, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Rodney Timothy WEBB, DOC # S39427, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-3420
    District Court of Appeal of Florida, Second District.
    Opinion filed June 15, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Joshua GIBSON, DOC #H30951, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1006
    District Court of Appeal of Florida, Second District.
    Opinion filed June 13, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Kathy CURRY, Appellant, v. WAL-MART STORES EAST, LP, Appellee.
    Case No. 2D17-3471
    District Court of Appeal of Florida, Second District.
    Opinion filed June 8, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Michael T. COOLEN, DOC# 312501, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4806
    District Court of Appeal of Florida, Second District.
    Opinion filed June 8, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Gary MCCLOUD, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-3715
    District Court of Appeal of Florida, Second District.
    Opinion filed June 15, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Timothy BARFIELD, DOC #331225, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-3757
    District Court of Appeal of Florida, Second District.
    Opinion filed June 15, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Juan Roberto BARRON-SALAZAR, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4789
    District Court of Appeal of Florida, Second District.
    Opinion filed June 15, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Dennis J. FULLENKAMP, Trustee, Appellant, v. CITY OF FORT MYERS, Florida, a Municipality of the State of Florida, Appellee.
    Case No. 2D17-3244
    District Court of Appeal of Florida, Second District.
    Opinion filed June 15, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Michael Alexander LYNCH, DOC # D65181, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3271
    District Court of Appeal of Florida, Second District.
    Opinion filed June 15, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Karie PETIT, Appellant, v. Jason PETIT, Appellee.
    Case No. 2D17-3634
    District Court of Appeal of Florida, Second District.
    Opinion filed June 15, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    STICKY HOLSTERS, INC., and Michael J. Christoff, Petitioners, v. Albert J. WAGNER, Respondent.
    Case No. 2D18-47
    District Court of Appeal of Florida, Second District.
    Opinion filed June 15, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Linda RUDOLPH, as personal representative of the Estate of Betty Evans, deceased, Appellant, v. WAL-MART STORES, INC.; Wal-Mart Stores East, LP; and Stripe a Lot of America II, Corp., Appellees.
    Case No. 2D16-4799
    District Court of Appeal of Florida, Second District.
    Opinion filed June 15, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Danielle Julia HALFON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5265
    District Court of Appeal of Florida, Second District.
    Opinion filed June 15, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Earl BUTLER, DOC# G02261, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2693
    District Court of Appeal of Florida, Second District.
    Opinion filed June 15, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Edward Benjamin COOK, DOC #T55483, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3867
    District Court of Appeal of Florida, Second District.
    Opinion filed June 15, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Michael ALLIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4072
    District Court of Appeal of Florida, Second District.
    Opinion filed June 15, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jesse LEAHY, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4613
    District Court of Appeal of Florida, Second District.
    Opinion filed June 15, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Alphonso JAMES, Sr., DOC #081362, Appellant, v. Stephen B. RUSSELL, State Attorney, Appellee.
    Case No. 2D17-5160
    District Court of Appeal of Florida, Second District.
    Opinion filed June 15, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Michael F. RUGER, Appellant, v. BANK OF AMERICA, N.A., Appellee.
    Case No. 2D17-948
    District Court of Appeal of Florida, Second District.
    Opinion filed June 15, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    R.J. NOWAK ENTERPRISES, INC., Appellant, v. D.R. HORTON, INC., Appellee.
    Case No. 2D18-110
    District Court of Appeal of Florida, Second District.
    Opinion filed June 15, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jorge Perez DIAZ, DOC #C09898, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3040
    District Court of Appeal of Florida, Second District.
    Opinion filed September 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Richard K. INGLIS, as Special Trustee of the Trust Under the Last Will and Testament of Rosa B. Schweiker, dated February 2, 1961, Bruce D. Berlinger, as the Individual Trustee of the Trust Under the Last Will and Testament of Rosa B. Schweiker, dated February 2, 1961, and Michael r. Presley, as Individual Trustee of the Schweiker-Berlinger Irrevocable Life Insurance Trust, Petitioners, v. Roberta Sue CASSELBERRY, f/k/a Sue C. Berlinger, Respondent.
    Case No. 2D18-486
    District Court of Appeal of Florida, Second District.
    Opinion filed June 15, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Andrew Joseph JOHNSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5399
    District Court of Appeal of Florida, Second District.
    Opinion filed June 15, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Kadrian RANDOLPH, DOC #C11592, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1632
    District Court of Appeal of Florida, Second District.
    Opinion filed June 15, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Larissa KORSOUNOVA, Appellant, v. The BANK OF NEW YORK MELLON, f/k/a the Bank of New York, as Trustee, ON BEHALF OF the HOLDERS OF the ALTERNATIVE LOAN TRUST 2005-56 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-56, Appellee.
    Case No. 2D17-2253
    District Court of Appeal of Florida, Second District.
    Opinion filed September 28, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Roylin James ROBINSON, DOC #L13934, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3211
    District Court of Appeal of Florida, Second District.
    Opinion filed September 21, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Dontarius Marquis SINGLETON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4003
    District Court of Appeal of Florida, Second District.
    Opinion filed September 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Shaquielle OLMEDA-PADILLA, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2373
    District Court of Appeal of Florida, Second District.
    Opinion filed September 21, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    K.C., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D18-0627
    District Court of Appeal of Florida, Second District.
    September 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Appeal is dismissed.


text:
    Toriano PARKER, Appellant/Petitioner(s), v. NATIONSTAR MORTGAGE, LLC, Appellee/Respondent(s).
    CASE NO.: 2D18-0554
    District Court of Appeal of Florida, Second District.
    September 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Ray Donovan NEVELS, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-2760
    District Court of Appeal of Florida, Second District.
    August 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Eric Orlando FOWLER, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-2453
    District Court of Appeal of Florida, Second District.
    August 09, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Nelson CINTRON, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-2385
    District Court of Appeal of Florida, Second District.
    August 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    John W. JACKSON, II, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-2790
    District Court of Appeal of Florida, Second District.
    August 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Jamaine BENJAMIN, Appellant/Petitioner(s), v. Michael SCOTT, Sheriff, Appellee/Respondent(s).
    CASE NO.: 2D18-2755
    District Court of Appeal of Florida, Second District.
    August 02, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Eugene Jermaine BETTS, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-1946
    District Court of Appeal of Florida, Second District.
    June 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    George PELLEGRINO, Appellant/Petitioner(s), v. BANK OF AMERICA, N.A., Appellee/Respondent(s).
    CASE NO.: 2D18-1950
    District Court of Appeal of Florida, Second District.
    September 14, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    T. M., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D18-2015
    District Court of Appeal of Florida, Second District.
    September 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    J.B., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D18-1936
    District Court of Appeal of Florida, Second District.
    September 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Earnest A. DELL, Appellant/Petitioner(s), v. The BANK OF NEW YORK MELLON, as Trustee, et al., Appellee/Respondent(s).
    CASE NO.: 2D18-1902
    District Court of Appeal of Florida, Second District.
    September 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Granted. Dismissed.


text:
    Robin R. LANE, Esq., Appellant/Petitioner(s), v. The LAW OFFICES OF CHARLES W. EHRLICH, et al., Appellee/Respondent(s).
    CASE NO.: 2D18-3575
    District Court of Appeal of Florida, Second District.
    October 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    DEPARTMENT OF REVENUE O/B/O Rebecca Anna ROBLES, Appellant/Petitioner(s), v. Emmanuel Pierre LOUIS, Appellee/Respondent(s).
    CASE NO.: 2D18-3196
    District Court of Appeal of Florida, Second District.
    October 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Charles E. TATE, Appellant/Petitioner(s), v. HANDYMAN HOME REPAIR, Appellee/Respondent(s).
    CASE NO.: 2D18-0937
    District Court of Appeal of Florida, Second District.
    September 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Timothy SCHUYLER, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-1803
    District Court of Appeal of Florida, Second District.
    August 01, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Sergio HARITOS, Appellant/Petitioner(s), v. Theodora HARITOS, n/k/a Theodora Kampouraki, Appellee/Respondent(s).
    CASE NO.: 2D18-3313
    District Court of Appeal of Florida, Second District.
    October 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Larry BURNS, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-2348
    District Court of Appeal of Florida, Second District.
    October 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.

Denied.


text:
    Romerio L. WALKER, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-1942
    District Court of Appeal of Florida, Second District.
    September 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    David RENCZKOWSKI, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-3229
    District Court of Appeal of Florida, Second District.
    September 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    K. M., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D18-2438
    District Court of Appeal of Florida, Second District.
    October 11, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    G.S., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D18-1185
    District Court of Appeal of Florida, Second District.
    October 11, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Daniel Jamar BROWN, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-3415
    District Court of Appeal of Florida, Second District.
    September 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Robert STEWART, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-2959
    District Court of Appeal of Florida, Second District.
    September 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Jason R. BENEFIELD, Appellant/Petitioner(s), v. Grady C. JUDD, Sheriff of Polk County, Florida and the State of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-3488
    District Court of Appeal of Florida, Second District.
    September 20, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    John DICKIE, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-2094
    District Court of Appeal of Florida, Second District.
    September 20, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Richard Neal GILLESPIE, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-3190
    District Court of Appeal of Florida, Second District.
    September 20, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Randolph GRAHAM, Jr., Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-2123
    District Court of Appeal of Florida, Second District.
    September 20, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.