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In re Standard Jury Instructions In Criminal Cases-Report 2017-05

Supreme Court of Florida

February 8, 2018

IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES-REPORT 2017-05.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

         Original Proceeding - Supreme Court Committee on Standard Jury Instructions in Criminal Cases

          Judge F. Rand Wallis, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Daytona Beach, Florida; and Bart Schneider, Staff Liaison, Office of the State Courts Administrator, Tallahassee, Florida, for Petitioner.

          PER CURIAM.

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

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

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

         We note the more significant amendments to the standard criminal jury instructions[1] as follows. First, instructions 28.4, 28.8(b), 28.8(c), 28.8(d), and 28.8(e) are amended to remove the phrase "or accident" from the elements of the offenses. Second, the Leaving the Scene instructions, 28.4, 28.4(a), and 28.4(b), and the Aggravated Fleeing or Eluding instructions, 28.8(b), 28.8(c), 28.8(d), and 28.8(e), are amended to add a citation to Gaulden v. State, 195 So.3d 1123 (Fla. 2016), with the definition for the phrase "a vehicle is 'involved in a crash, ' " meaning "if it collides with another vehicle, person, or object."

         Having considered the Committee's report, we authorize the amended instructions, as set forth in the appendix to this opinion, for publication and use.[2]New language is indicated by underlining, and deleted language is indicated by struck-through type. In authorizing the publication and use of these instructions, we express no opinion on their correctness and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. The instructions as set forth in the appendix shall become effective when this opinion becomes final.

         It is so ordered.

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

         APPENDIX

         28.4 LEAVING THE SCENE OF A CRASH INVOLVING [DEATH] [SERIOUS BODILY INJURY] [INJURY] § 316.027(2), Fla. Stat.; § 316.062, Fla. Stat.

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

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

         2. (Defendant) knew that [he] [she] was involved in a crash or accident.

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

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

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

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

         4. a. (Defendant) willfully failed to stop at the scene of the crash or accident or as close to the crash or accident as possible and remain there until [he] [she] had given "identifying information" to the [injured person] [driver] [occupant] [person attending the vehicle] and to any police officer investigating the crash or accident.

         [or] b. (Defendant) willfully failed to render "reasonable assistance" to the injured person if such treatment appeared to be necessary or was requested by the injured person.

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

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

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

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

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

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

         [a pedestrian].

         [actually engaged in work upon a highway].

         [actually engaged in work upon utility facilities along a highway]. [engaged in the provision of emergency services within the right-of-way].

         [operating a [bicycle] [motorcycle] [scooter] [moped] lawfully on the roadway]. [riding an animal].

         [lawfully operating [a farm tractor or similar vehicle designed primarily for farm use] [a skateboard] [roller-skates] [in-line skates] [a horse-drawn carriage] [an electric personal assistive mobility device] [a wheelchair] on [a public right-of-way] [crosswalk] [shoulder of the roadway]].

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

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

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

         § 316.003(75), Fla. Stat.

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

         § 316.062, Fla. Stat.

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

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

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

         "Willfully" means knowingly, intentionally and purposely.

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

         Lesser Included Offenses

LEAVING THE SCENE OF A CRASH INVOLVING DEATH - 316.027(2)(c)

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

Leaving the Scene of a Crash Involving Serious Bodily Injury*

316.027(2)(b)

28.4

Leaving the Scene of a Crash Involving Injury*

316.027(2)(a)

28.4

Attempt

777.04(1)

5.1

LEAVING THE SCENE OF A CRASH INVOLVING SERIOUS BODILY INJURY - 316.027(2)(b)

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

Leaving the Scene of a Crash Involving Injury

316.027(2)(a)

28.4

Attempt

777.04(1)

5.1

         Comments

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

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

         This instruction was adopted in 1995 [665 So.2d 212] and amended in 2008 [973 So.2d 432], 2015 [166 So.3d 1361], and 2016 [192 So.3d 1190], and 2018.

         28.4(a) LEAVING THE SCENE OF A CRASH INVOLVING ONLY DAMAGE TO AN ATTENDED VEHICLE OR ATTENDED PROPERTY § 316.061(1), Fla. Stat.

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

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

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

         Definitions.

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

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

         Fla. Stat. § 316.062(1), Fla. Stat.

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

         Fla. Stat. § 316.003(75), Fla. Stat.

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

         Lesser Included Offenses

LEAVING THE SCENE OF A CRASH INVOLVING ONLY DAMAGE TO AN ATTENDED VEHICLE OR ATTENDED PROPERTY-316.061(1)

CATEGORY ONE

CATEGORY TWO

FLA. STAT.

INS. NO.

None

Attempt

777.04(1)

5.1

         Comments

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

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

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

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

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

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

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

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

         § 316.003(75), Fla. Stat.

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

         Lesser Included Offense

LEAVING THE SCENE OF A CRASH INVOLVING DAMAGE TO AN UNATTENDED VEHICLE OR UNATTENDED PROPERTY- 316.063(1)

CATEGORY ONE

CATEGORY TWO

FLA. STAT.

INS. NO.

None

Attempt

777.04(1)

5.1

         Comments

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

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

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

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

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

1. (Defendant) was operating a vehicle upon a street or highway in Florida.
2. A duly authorized law enforcement officer ordered the defendant to stop or ...

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